DECISION

 

The Vanguard Group, Inc. v. bryan davis

Claim Number: FA2311002072705

 

PARTIES

Complainant is The Vanguard Group, Inc. ("Complainant"), represented by Jacob Bishop of The Vanguard Group, Inc., Pennsylvania, USA. Respondent is bryan davis ("Respondent"), Georgia, USA.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <vanguardcapitalltd.com>, registered with NameCheap, Inc.

 

PANEL

The undersigned certifies that they have acted independently and impartially and to the best of their knowledge have no known conflict in serving as Panelist in this proceeding.

 

Sandra J. Franklin as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to Forum electronically on November 28, 2023; Forum received payment on November 28, 2023.

 

On November 29, 2023, NameCheap, Inc. confirmed by e-mail to Forum that the <vanguardcapitalltd.com> domain name is registered with NameCheap, Inc. and that Respondent is the current registrant of the name. NameCheap, Inc. has verified that Respondent is bound by the NameCheap, Inc. 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 November 30, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 20, 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@vanguardcapitalltd.com. Also on November 30, 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 December 21, 2023, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Sandra J. Franklin 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.

 

RELIEF SOUGHT

Complainant requests that the domain name be transferred from Respondent to Complainant.

 

PARTIES' CONTENTIONS

A. Complainant

1.       Respondent's <vanguardcapitalltd.com> domain name is confusingly similar to Complainant's VANGUARD mark.

 

2.       Respondent does not have any rights or legitimate interests in the <vanguardcapitalltd.com> domain name.

 

3.       Respondent registered and uses the <vanguardcapitalltd.com> domain name in bad faith.

 

B. Respondent did not file a Response.

 

FINDINGS

Complainant, one of the world's largest investment companies, holds a registration for the VANGUARD mark with the United States Patent and Trademark Office ("USPTO") (Reg. No. 1,784,435, registered Jul. 27, 1993).

 

Respondent registered the <vanguardcapitalltd.com> domain name on July 10, 2023, and uses it to compete with Complainant.

 

DISCUSSION

Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted and 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").

 

Identical and/or Confusingly Similar

The Panel finds that Complainant has rights in the VANGUARD mark through registration with the USPTO. See DIRECTV, LLC v. The Pearline Group, FA 1818749 (Forum Dec. 30, 2018) ("Complainant's ownership of a USPTO registration for DIRECTV demonstrates its rights in such mark for the purposes of Policy ¶ 4(a)(i).").

 

Respondent's <vanguardcapitalltd.com> domain name uses Complainant's VANGUARD mark and adds the terms "capital" and "ltd", and a gTLD. These changes do not distinguish a disputed domain name from a mark under Policy ¶ 4(a)(i). See Microsoft Corporation v. Thong Tran Thanh, FA 1653187 (Forum Jan. 21, 2016) (determining that confusing similarity exist where [a disputed domain name] contains Complainant's entire mark and differs only by the addition of a generic or descriptive phrase and top-level domain, the differences between the domain name and its contained trademark are insufficient to differentiate one from the other for the purposes of the Policy.) Accordingly, the Panel finds that Respondent's <vanguardcapitalltd.com> domain name is confusingly similar to Complainant's VANGUARD mark.

 

The Panel finds that Complainant has satisfied Policy ¶ 4(a)(i).

 

Rights or Legitimate Interests

Once Complainant makes a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), the burden shifts to Respondent to show it does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) ("Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests").

 

Complainant argues that Respondent has no rights or legitimate interests in the <vanguardcapitalltd.com> domain name as it is not commonly known by the domain name and Complainant has not authorized or licensed Respondent to use its VANGUARD mark. The WHOIS of record identifies Respondent as "bryan davis". Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name, and thus has no rights under Policy ¶ 4(c)(ii). See Deutsche Lufthansa AG v. Mohamed elkassaby, FA 1801815 (Forum Sept. 17, 2018) ("The WHOIS lists "Mohamed elkassaby" as registrant of record.  Coupled with Complainant's unrebutted assertions as to absence of any affiliation between the parties, the Panel finds that Respondent is not commonly known by the Domain Name in accordance with Policy ¶ 4(c)(ii)."). 

 

Complainant also argues that Respondent does not use the <vanguardcapitalltd.com> domain name for a bona fide offering of goods or services or a legitimate noncommercial or fair use because Respondent uses it to compete with Complainant. Under Policy ¶¶ 4(c)(i) and (iii), using a disputed domain name to compete with a complainant is not a bona fide offering of goods or services or a legitimate noncommercial or fair use. See Vanguard Trademark Holdings USA LLC v. Dan Stanley Saturne, FA 1785085 (Forum June 8, 2018) ("Respondent's use of the disputed domain name does not amount to a bona fide offering of goods or services or a legitimate noncommercial or fair use" where "Respondent is apparently using the disputed domain name to offer for sale competing services.") Complainant provides screenshots of the website at <vanguardcapitalltd.com>, which features investment services similar to Complainant's services. The Panel finds that this is not a bona fide offering of goods or services or a legitimate noncommercial or fair use, and thus Respondent has no rights under Policy ¶¶ 4(c)(i) or (iii).

 

The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).

 

Registration and Use in Bad Faith

Complainant argues that Respondent registered and uses the <vanguardcapitalltd.com> domain name in bad faith to offer competing services, which disrupts Complainant's business. The Panel agrees and finds that Respondent registered and uses the disputed domain name in bad faith under Policy ¶¶ 4(b)(iii) and (iv). See Fitness International, LLC v. ALISTAIR SWODECK / VICTOR AND MURRAY, FA 1623644 (Forum July 9, 2015) ("Respondent uses the at-issue domain name to operate a website that purports to offer health club related services such as fitness experts, fitness models, fitness venues, exercise programs, and personal training, all of which are the exact services offered by Complainant. Doing so causes customer confusion, disrupts Complainant's business, and demonstrates Respondent's bad faith registration and use of the domain name pursuant to Policy ¶ 4(b)(iii)."); see also Citadel LLC and its related entity, KCG IP Holdings, LLC v. Joel Lespinasse / Radius Group, FA 1579141 (Forum Oct. 15, 2014) ("Here, the Panel finds evidence of Policy ¶ 4(b)(iv) bad faith as Respondent has used the confusingly similar domain name to promote its own financial management and consulting services in competition with Complainant."). 

 

Complainant also argues that Respondent registered the <vanguardcapitalltd.com> domain name with bad faith actual knowledge of Complainant's rights in the VANGUARD mark. The Panel notes that the VANGUARD mark is wholly incorporated into the disputed domain name and the resolving website features directly competing services. Therefore, the Panel finds that Respondent was well aware of Complainant and its rights in the VANGUARD mark, and finds further bad faith under Policy ¶ 4(a)(iii). See University of Rochester v. Park HyungJin, FA 1587458 (Forum Dec. 9, 2014) (". . .the Panel infers Respondent's actual knowledge here based on Respondent's complete use of the PERIFACTS mark in the <perifacts.com> domain name to promote links related to the field of obstetrics, where Complainant's mark is used.").

 

The Panel finds that Complainant has satisfied Policy ¶ 4(a)(iii).

 

DECISION

Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.

 

Accordingly, it is Ordered that the <vanguardcapitalltd.com> domain name be TRANSFERRED from Respondent to Complainant.

 

 

 

Sandra J. Franklin, Panelist

Dated: December 22, 2023