GoFundMe Inc. v. mohamd ibrahim / richmondtoday
Claim Number: FA2303002036303
Complainant is GoFundMe Inc. (“Complainant”), represented by Gail Podolsky of Carlton Fields, P.A., Georgia. Respondent is mohamd ibrahim / richmondtoday (“Respondent”), PS.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <gofundme.agency>, registered with GoDaddy.com, LLC.
The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.
James Bridgeman SC as Panelist.
Complainant submitted a Complaint to Forum electronically on March 17, 2023; Forum received payment on March 17, 2023.
On March 20, 2023, GoDaddy.com, LLC confirmed by e-mail to Forum that the <gofundme.agency> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, LLC registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On March 21, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 10, 2023 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@gofundme.agency.
Also on March 21, 2023, the Written Notice of the Complaint, notifying Respondent of the e-mail addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
Having received no response from Respondent, Forum transmitted to the parties a Notification of Respondent Default.
On April 13, 2023, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed James Bridgeman SC as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant claims rights in the GOFUNDME trademark and service mark established by its ownership of the portfolio of United States trademark and service mark registrations described below, and its extensive use of the mark on its Internet platform, at <www.gofundme.com>, providing financial services in a business that has grown from a beginning in 2010, to a service which has facilitated the provision over $25 billion in funding with over 100 million donations.
Complainant submits that in January 2023, alone, its <www.gofundme.com> website received 48.9 million total visits and now registers one donation every second.
Complainant alleges that the disputed domain <gofundme.agency> is confusingly similar to Complainant’s GOFUNDME mark as it incorporates the GOFUNDME marks in its entirety and the mark is the dominant component of the second level domain. See Choice Hotels International, Inc. v. Michele Dinoia a/k/a SZK.com, FA 282792, p. 5 (NAF Jul. 28, 2004) (“Generally, the fact that a domain name incorporates a Complainant’s registered mark is sufficient to establish identical or confusing similarity for purposes of the [ICANN] Policy.”).
Furthermore, Complainant argues that the addition of the generic Top-Level Domain extension <.agency> suffix does not overcome the confusing similarity of the disputed domain name with Complainant’s GOFUNDME mark. See Wal-Mart Stores, Inc. v. Michael Folan, FA0709001076262 (NAF Oct. 26, 2007) (“the addition of . . . a top-level domain is required for all domain names.”).
Complainant next alleges that Respondent has no rights or legitimate interests in <gofundme.agency>, and submits that complainant is unaware of any evidence that Respondent has ever commonly been known by the name “GOFUNDME” or variations thereof, prior to Respondent’s registration of the <gofundme.agency> domain name. See UDRP Policy ¶ 4(c)(ii); Home Depot Product Authority, LLC v. Domain Administrator / Fundacion Privacy Services LTD, Claim Number: FA2008001908055 (NAF Sept. 11, 2020) (“nothing in the record rebuts Complainant’s assertions that Respondent is not commonly known by the disputed domain name and is not authorized or licensed to use the HOME DEPOT trademark in its domain name. Thus, the Panel find that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).”).
Complainant additionally avers that it never authorized Respondent to register or use the GOFUNDME mark in any manner.
Referring to a screen capture exhibited in an annex to the Complaint, Complainant submits that it illustrates that the disputed domain name redirects Internet traffic to Complainant’s official website. Complainant submits that therefore the Panel should find that Respondent lacks rights or legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii). See Altavista Co. v. Brunosousa, WIPO Case D2002-0109 (holding that the respondent was attempting to build up “mistaken confidence” in the disputed domain name by having it resolve to the complainant’s official website and that “an unconnected party has no right or legitimate interest to use an otherwise deceptive trademark, name or indicia to redirect Internet traffic, even if it is directed to the legitimate owner of the trademark”).
Complainant further submits that other panelists appointed under the Policy have found that using a disputed domain name to redirect to Complainant’s website generally does not confer rights or legitimate interests under Policy ¶ 4(a)(ii).” Home Depot Product Authority, LLC v. Domain Administrator / Fundacion Privacy Services LTD, Claim Number: FA2008001908055 (NAF Sept. 11, 2020) (citing Better Existence with HIV v. AAA, FA 1363660 (NAF Jan. 25, 2011) (finding that “even though the disputed domain name still resolves to Complainant’s own website, Respondent’s registration of the disputed domain name in its own name fails to create any rights or legitimate interests in Respondent associated with the disputed domain name under Policy ¶ 4(a)(ii)”).
Complainant argues in conclusion that therefore Respondent is not making a legitimate, noncommercial, or fair use of the domain name
Complainant next alleges that the disputed domain name was registered and is being used in bad faith, arguing that Respondent is presumed to have knowledge of Complainant’s registered marks and reputation because Respondent’s domain name <gofundme.agency> incorporates Complainant’s registered GOFUNDME mark in its entirety. See The PNC Financial Services Group Inc. v. Unasi Inc., FA0508000535925 (NAF Sept. 20, 2005) (“Respondent’s registration of the disputed domain names, which contain confusingly similar versions of Complainant’s PNC, PNCBANK and PNCBANK.COM marks, and Complainant’s registration of its marks with the USPTO suggest[sic] that Respondent knew of Complainant’s rights in the mark when Respondent registered the domain names.”).
Respondent is presumed to have knowledge of Complainant’s registered marks and reputation because Respondent’s domain name <gofundme.agency> incorporates Complainant’s registered GOFUNDME marks in their entirety. See The PNC Financial Services Group Inc. v. Unasi Inc., FA0508000535925 (NAF Sept. 20, 2005) (“Respondent’s registration of the disputed domain names, which contain confusingly similar versions of Complainant’s PNC, PNCBANK and PNCBANK.COM marks, and Complainant’s registration of its marks with the USPTO suggest[sic] that Respondent knew of Complainant’s rights in the mark when Respondent registered the domain names.”).
Furthermore, Complainant argues that Respondent’s registration of the disputed domain name “in spite of actual or constructive knowledge [of Complainant’s rights in the GOFUNDME mark], amounts to bad faith registration and use pursuant to [UDRP] Policy ¶4(a)(iii).” See Digi International Inc. v. DDI Systems, FA0209000124506 (NAF Oct. 24, 2002) (“there is a legal presumption of bad faith, when Respondent reasonably should have been aware of Complainant’s trademarks, actually or constructively.”).
Complainant adds that the concealment of Respondent’s true identity through the use of a privacy service is indicative of bad faith registration and use of the <gofundme.agency> domain name. See Spin Master Ltd. v. DCSTEAM INC., FA1210515, p. 6 (NAF Aug. 5, 2008) (“The Panel therefore finds that this concealment of the Respondent’s true identity was indicative of bad faith registration and use of the disputed domain name pursuant to [UDRP] Policy ¶ 4(a)(ii).”).
B. Respondent
Respondent failed to submit a Response in this proceeding.
FINDINGS
Complainant is the proprietor of an Internet platform that facilitates people requiring funding with funders and since 2010 has used the trademark and service mark GOFUNDME for which it owns the following United States trademark registrations:
· United States service mark GOFUNDME, registration number 4,201,895 registered on the Principal Register on September 4, 2012 for services in international class 36;
· United States service mark GOFUNDME (and design), registration number 4.954,658, registered on the Principal Register on May 10, 2016 for services in class 36;
· United States service mark GOFUNDME.ORG (and design), registration number 5,903,338 , registered on the Principal Register on November 5, 2019 for services in class 36;
· United States service mark 6,069,475, GOFUNDME, registration number, registered on the Principal Register on June 2, 2020 for services in international classes 35, 36, 38, 42;
· United States trademark and service mark GOFUNDME (and design), registration number 6,951,504 registered on the Principal Register on January 10, 2023, for goods services in classes 9, 35, 36, 38, 42;
· United States trademark GOFUNDME, registration number 6,552,578, registered on the Principal Register on November 9, 2021, for goods in international class 9,
· United States registered trademark and service mark GOFUNDME (and design), registration number 6,552,579, registered on the Principal Register on November 9, 2021, for goods and services in international classes 9, 35, 36, 38, 42.
The disputed domain name <gofundme.agency> was registered on July 10, 2021 and redirects Internet traffic to Complainant’s own website at <www.gofundme.com>.
The identity of the registrant of the disputed domain name has been concealed on the published WhoIs by means of a privacy service.
There is no information available about Respondent except for that provide din the Complaint, the Registrar’s WhoIs and the information provided by the Registrar in response to the request by the Forum for information about the registration of the disputed domain name. The Registrar confirmed that Respondent is the registrant.
Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable."
Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:
(1) the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(2) Respondent has no rights or legitimate interests in respect of the domain name; and
(3) the domain name has been registered and is being used in bad faith.
In view of Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representations pursuant to paragraphs 5(f), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
Complainant’s Rights
Complainant has provided convincing, uncontested evidence that it has rights in the GOFUNDME mark, established by the ownership of the portfolio of trademark registrations described above and an extensive international goodwill and reputation in providing its Internet based services at website at <www.gofundme.com> which received 48.9M total visits in January 2023 alone, and now registers one donation every second.
Confusing Similarity
The disputed domain name <gofundme.agency> consists of, and is identical to, Complainant’s GOFUNDME mark in combination with only the generic Top-Level Domain (“gTLD”) extension <.agency>.
The gTLD extension <.agency> does not prevent a finding of confusing similarity as the circumstances of this proceeding, it would be considered to be a necessary technical requirement for a domain name registration,
This Panel finds therefore that the disputed domain name is confusingly similar to the GOFUNDME in the first element of the test in Policy ¶ 4(a)(i).
Complainant has made out a prima facie case that Respondent has no rights legitimate interests in the disputed domain name arguing that
· Complainant is unaware of any evidence that Respondent has ever commonly been known by the name “GOFUNDME” or variations thereof, prior to Respondent’s registration of the <gofundme.agency> domain name;
· Complainant never authorized Respondent to register or use the GOFUNDME mark in any manner;
· the screen capture annexed to the Complaint, illustrates that the disputed domain name redirects to Complainant’s official website at <www.gofundme.com>;
· such use the disputed domain name to redirect to Complainant’s website does not confer rights or legitimate interests under the Policy; and
· therefore Respondent is not making a legitimate, noncommercial, or fair use of the disputed domain name.
It is well established that once a complainant makes out a prima facie case that a respondent has no rights or legitimate interests in the domain name at issue, the burden of production shifts to the respondent to prove its rights or legitimate interests.
Respondent has failed to discharge that burden and therefore this Panel must find that Respondent has no rights or legitimate interests in the disputed domain name.
Complainant has therefore succeeded in the second element of the test in Policy ¶ 4(a)(ii).
Complainant has adduced clear and convincing, uncontested evidence that it has trademark and service mark rights in the GOFUNDME mark which predate the registration and first use of the disputed domain name on July 10, 2021. The earliest service mark registration adduced in evidence by Complainant was entered on the register on September 4, 2012. The evidence adduced shows an enormous Internet traffic and international awareness of Complainant by both donors and recipients of funding, and Complainant credibly claims its services has facilitated the provision of $25 billion in funding through over 100 million donations.
The GOFUNDME mark is a distinctive mark and clearly relates to Complainant and its famous services. It is most improbable that anyone would choose and register the identical word in a domain name without having prior knowledge of Complainant, its GOFUNDME mark, goodwill and reputation.
This Panel finds therefore that on the balance of probabilities the disputed domain name was registered in bad faith with Complainant and its GOFUNDME mark and services in mind, intending to take predatory advantage of Complainant’s reputation and goodwill.
The uncontested evidence adduced by Complainant shows that the disputed domain name is effectively inactive but redirects Internet traffic to Complainant’s own website at <www.gofundme.com>.
Respondent is therefore taking predatory advantage of Complainant’s GOFUNDME mark to attract and confuse Internet users, to thereby intercept Internet traffic, and redirect the traffic to Complainants website without permission. Such interception and redirection of Internet traffic, probably in most instances even without the knowledge of the Internet user, constitutes use in bad faith for the purposes of the Policy. The deceptive use of the disputed domain name in such manner carries significant risks particularly when it occurs in relation to a website such as Complainant’s that facilitates transfers of enormous amounts of money.
As this Panel has found that the disputed domain name was registered and is being used in bad faith, Complainant has succeeded in the third element of the test in Policy paragraph 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <gofundme.agency> domain name be TRANSFERRED from Respondent to Complainant.
_________________________
James Bridgeman SC
Panelist
Dated: April 14, 2023
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