Webster Financial Corporation v. yang zhi chao
Claim Number: FA2304002042340
Complainant is Webster Financial Corporation (“Complainant”), represented by Gail Podolsky of Carlton Fields, P.A., Georgia, USA. Respondent is yang zhi chao (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <hsabankl.com>, <hsabanko.com>, <hsasbank.com>, <comhsabank.com>, <ehsabank.com>, and <yhsabank.com> (‘the Domain Names’) registered with Xin Net Technology Corporation.
The undersigned certifies that she has acted independently and impartially and to the best of her knowledge has no known conflict in serving as Panelist in this proceeding.
Dawn Osborne as Panelist.
Complainant submitted a Complaint to Forum electronically on April 28, 2023; Forum received payment on April 28, 2023.
On May 5, 2023, Xin Net Technology Corporation confirmed by e-mail to Forum that the <hsabankl.com>, <hsabanko.com>, <hsasbank.com>, <comhsabank.com>, <ehsabank.com>, and <yhsabank.com> Domain Names are registered with Xin Net Technology Corporation and that Respondent is the current registrant of the names. Xin Net Technology Corporation has verified that Respondent is bound by the Xin Net Technology Corporation 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 May 8, 2023, Forum served the Complaint and all Annexes, including a Chinese and English language Written Notice of the Complaint, setting a deadline of May 30, 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@hsabankl.com, postmaster@hsabanko.com, postmaster@hsasbank.com, postmaster@comhsabank.com, postmaster@ehsabank.com, postmaster@yhsabank.com. Also on May 8, 2023, the Chinese and English language 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 June 6, 2023 pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Dawn Osborne 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 Names be transferred from Respondent to Complainant.
Preliminary Issue: Language of Proceedings
Pursuant to UDRP Rule 11(a), the Panel finds that persuasive evidence has been adduced by Complainant to suggest the likely possibility that the Respondent is conversant and proficient in the English language. After considering the circumstance of the present case, the Panel decides that the proceeding should be in English.
A. Complainant
The Complainant’s contentions can be summarised as follows:
The Complainant is the owner of the trade mark HSA BANK registered, inter alia, in the USA for financial services with first use recorded as 2003. It owns HSAbank.com.
The Domain Names registered in 2023 are confusingly similar to the Complainant’s mark, wholly incorporating it and adding only the letter(s) ‘l’, ‘o’, ‘s’, ‘e’, ‘y’ or ‘com’, and the gTLD .com which do not respectively distinguish any of the Domain Names from the Complainant’s mark.
Respondent is not commonly known by the Complainant’s mark and has no permission from the Complainant to use the Complainant’s mark. The Domain Names have been used for commercial pay per click links. This is not a bona fide offering of goods and services or a non commercial legitimate fair use. The Respondent has no rights or legitimate interests in the Domain Names.
The Respondent registered and used the Domain Names in bad faith to confuse Internet users for commercial gain disrupting the Complainant’s business. Typosquatting per se is evidence of bad faith registration and use.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Complainant is the owner of the trade mark HSA BANK registered, inter alia, in the USA for financial services with first use recorded as 2003. It owns HSAbank.com.
The Domain Names registered in 2023 have been used for commercial pay per click links.
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”).
The Domain Names consist of the Complainant's HSA BANK mark (which is registered in USA for financial services with first use recorded as 2003), the letters ‘l’, ‘o’, ‘s’, ‘e’. ‘y’ or ‘com’, and the gTLD .com.
The Panel agrees that misspellings such as a single letter or a few letters does not distinguish the Domain Names from the Complainant's trade mark pursuant to the Policy. See Twitch Interactive Inc. v. Antonio Teggi, FA 1626528 (Forum Aug. 3, 2015) (where an additional ‘c’ was added)
The gTLD .com does not serve to distinguish a domain name from a Complainant’s mark. See Red Hat Inc v. Haecke FA 726010 (Forum July 24, 2006) (concluding that the redhat.org domain name is identical to the complainant's red hat mark because the mere addition of the gTLD was insufficient to differentiate the disputed domain name from the mark).
Accordingly, the Panel holds that the Domain Names are confusingly similar to the Complainant’s registered mark.
As such the Panel holds that Paragraph 4(a)(i) of the Policy has been satisfied.
Rights or Legitimate Interests
The Complainant has not authorised the use of its mark. The Respondent has not answered this Complaint and there is no evidence or reason to suggest the Respondent is, in fact, commonly known by the Domain Names. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum Sept. 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark).
The Domain Names each appear to be typosquatting registrations differing only by single or a few letters from both the Complainant’s mark and a url used by the Complainant hsabank.com. Typosquatting is an indication of a lack of rights or a legitimate interests. See Chegg Inc. v. yang qijin, FA1503001610050 (Forum Apr. 23, 2015) (“Users might mistakenly reach Respondent’s resolving website by misspelling Complainant’s mark. Taking advantage of Internet users’ typographical errors, known as typosquatting, demonstrates a respondent’s lack of rights or legitimate interests under Policy ¶ 4(a)(ii).”).
The Domain Names have been used for commercial pay per click links. Use for commercial pay per click links does not constitute a bona fide offering of goods or services or a legitimate non commercial or fair use. See Insomniac Holdings, LLC v. Mark Daniels, FA 1735969 (Forum July 15, 2017) (”Respondent’s use of .. domain name resolves to a site containing pay-per-click hyperlinks and advertisements… Since these kinds of advertisements generate revenue for the holder of a domain name, they cannot be noncommercial; further, they do not qualify as a bona fide offering.”).
The Respondent has not answered this Complaint or rebutted the prima facie case evidenced by the Complainant as set out herein.
As such the Panelist finds that the Respondent does not have rights or legitimate interests in the Domain Names and that the Complainant has satisfied the second limb of the Policy.
Registration and Use in Bad Faith
The Domain Names seek to take advantage of the situation where Internet users may make a typographical error. Typosquatting itself is evidence of relevant bad faith registration and use and disruption of the Complainant’s business. See Diners Club int'l Ltd. v. Domain Admin ****** It's all in the name ******, FA 156839 (Forum June 23, 2003) (registering a domain name in the hope that Internet users will mistype the Complainant’s mark and be taken to the Respondent’s site is registration and use in bad faith). Typosquatting also indicates the Respondent had knowledge of the Complainant and its rights. See InfoSpace, Inc. v. Greiner, FA 227653 (Forum Mar. 8, 2004) (“Respondent’s domain name is a simple and popular variation of a trademark commonly used by typosquatters …Such a domain name evidences actual knowledge of the underlying mark prior to the registration of the domain name, and as Respondent failed to submit any evidence to counter this inferrence [sic], Respondent’s actions evidence bad faith registration of the disputed domain name.”).
Use for pay per click links indicates bad faith being disruptive of the Complainant’s business and diverting customers for commercial gain and can indicate actual knowledge of the Complainant and its business. Accordingly, the Panel holds that the Respondent has intentionally attempted to attract for commercial gain Internet users to its websites by creating likelihood of confusion with the Complainant's trade mark as to the source, sponsorship, affiliation or endorsement of the web sites or products or services offered on them likely to disrupt the business of the Complainant. See Health Republic Insurance Company v. Above.comLegal, FA 1506001622088, (Forum July 10, 2015) re diversion to pay per click links.
The Respondent has also registered multiple domain names containing the Complainant’s mark suggesting a pattern of bad faith activity. See The Toronto-Dominion Bank v. Ryan G Foo/PPA Media Services/Jinesh Shah/WhoIs Privacy Corp, FA 1408001576648 (Forum Jan. 12, 2015) (Respondent’s multiple registrations relating to Complainant’s marks were independently sufficient to constitute a pattern as described by Policy 4 (b)(ii).)
As such, the Panelist believes that the Complainant has made out its case that the Domain Name was registered and used in bad faith and has satisfied the third limb of the Policy under para 4(b)(ii), (iii) and (iv).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <hsabankl.com>, <hsabanko.com>, <hsasbank.com>, <comhsabank.com>, <ehsabank.com>, <yhsabank.com> domain names be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: June 6, 2023
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