DECISION

 

Dominion Energy, Inc. v. Candie Deloach / Excella

Claim Number: FA2402002083487

PARTIES

Complainant is Dominion Energy, Inc. ("Complainant"), represented by Mary D. Baril of McGuireWoods LLP, Virginia, USA. Respondent is Candie Deloach / Excella ("Respondent"), New York, USA.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <dominionnenergy.com>, registered with Sav.com, LLC.

 

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.

 

Richard Hill as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to Forum electronically on February 12, 2024; Forum received payment on February 12, 2024.

 

On February 12, 2024, Sav.com, LLC confirmed by e-mail to Forum that the <dominionnenergy.com> domain name is registered with Sav.com, LLC and that Respondent is the current registrant of the name. Sav.com, LLC has verified that Respondent is bound by the Sav.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 February 13, 2024, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 4, 2024 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@dominionnenergy.com. Also on February 13, 2024, 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 March 5, 2024, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Richard Hill 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

Complainant states that it is a Fortune 500 company that generates, transmits, and distributes energy products at retail and wholesale. Complainant is a leader in the clean energy transition, with a clear strategy of reaching net-zero carbon and methane emissions by 2050. Established in 1909, Complainant now employs over 17,000 people across 13 states. It serves nearly seven million customers in the United States. Complainant asserts rights in the DOMINION ENERGY mark through it registration in the United States in 1997.

 

Complainant alleges that the disputed domain name is identical or confusingly similar to its DOMINION ENERGY mark because it incorporates the mark in its entirety, merely adding an extra letter "n" and the ".com" generic top-level domain ("gTLD").

 

According to Complainant, Respondent lacks rights or legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name, nor has Complainant authorized or licensed Respondent to use its mark. Respondent does not use the disputed domain name for a bona fide offering of goods or services, or a legitimate noncommercial or fair use. Instead, the resolving website purports to offer payment portals for customers to pay their 'Dominion Energy' bills via credit card or bank transfer. However, the portals are fraudulent and used to scam consumers. 

 

Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith. The resolving website is used to scam consumers. Respondent engages in typosquatting. Respondent registered the disputed domain name with actual or constructive knowledge of Complainant's rights in the DOMINION ENERGY mark. 

 

B. Respondent

Respondent failed to submit a Response in this proceeding.

 

FINDINGS

Complainant has rights in the mark DOMINION ENERGY dating back to at least 1997 and uses it to provide energy products.

 

The disputed domain name was registered in 2019.

 

Complainant has not licensed or otherwise authorized Respondent to use its mark.

 

The resolving website purports to offer payment portals for customers to pay their bills. However, the portals are fraudulent and used to scam consumers.

 

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 disputed domain name incorporates Complainant's DOMINION ENERGY mark in its entirety, merely adding an extra letter "n" and the ".com" generic top-level domain ("gTLD"). Under Policy ¶ 4(a)(i), adding a gTLD and/or relevant or meaningless letters is generally insufficient in differentiating a disputed domain name from the mark it incorporates. See Bloomberg Finance L.P. v. Nexperian Holding Limited, FA 1782013 (Forum June 4, 2018) ("Where a relevant trademark is recognisable within a disputed domain name, the addition of other terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) does not prevent a finding of confusing similarity under the first element."); see also Home Depot Product Authority, LLC v. Angelo Kioussis, FA 1784554 (Forum June 4, 2018) ("The domain name contains the mark in its entirety, with only the addition of the generic letters 'sb' and the digits '2018,' plus the generic Top Level Domain ("gTLD") '.com.'  These alterations of the mark, made in forming the domain name, do not save it from the realm of confusing similarity under the standards of the Policy."); see also Morgan Stanley v. Francis Mccarthy / Baltec Marine Llc, FA 1785347 (Forum June 8, 2018) ("The [<morganstonley.com> and <morganstainley.com>] Domain Names are confusingly similar to Complainant's marks, as they fully incorporate the MORGAN STANLEY mark, varying it only by subtle misspellings, omitting a space between the words, and adding the generic top-level domain ("gTLD") '.com.'"). Therefore, the Panel finds that the disputed domain name is confusingly similar to Complainant's mark under Policy ¶ 4(a)(i).

 

Rights or Legitimate Interests

Respondent is not licensed or otherwise authorized to use Complainant's DOMINION ENERGY mark and is not commonly known by the disputed domain name: under Policy ¶ 4(c)(ii), WHOIS information may be used to determine whether a respondent is commonly known by the disputed domain name. See State Farm Mutual Automobile Insurance Company v. Dale Anderson, FA1504001613011 (Forum May 21, 2015) (concluding that because the WHOIS record lists "Dale Anderson" as the registrant of the disputed domain name, the respondent was not commonly known by the <statefarmforum.com> domain name pursuant to Policy ¶ 4(c)(ii)); see also 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). Here, the WHOIS information for the disputed domain name lists the registrant as "Candie Deloach / Excella". Therefore the Panel finds that Respondent is not commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii).

 

The resolving website purports to offer payment portals for customers to pay their bills. However, the portals are fraudulent and used to scam consumers. Previous Panels have held that such use of an infringing domain name does not qualify as a bona fide offer of goods or services, or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii). See Nycomed Danmark ApS v. Diaz, D2006-0779 (WIPO Aug. 15, 2006) (concluding that the respondent's use of a disputed domain name to operate a website promoting an illegal food supplement was not a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii)); see also Acton Educational Services d/b/a West Coast Univ. v. West Coast Univ. Int'l Inc., FA 1191541 (Forum July 2, 2008) (website offering fake educational services was not a legitimate use of domain name). Thus the Panel finds that Respondent fails to use the disputed domain name to make a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii)). And the Panel finds that Respondent lacks rights or legitimate interests in the disputed domain name.

 

Registration and Use in Bad Faith

Respondent (who did not reply to Complainant's contentions) has not presented any plausible explanation for its use of Complainant's mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent's failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain name.

 

Indeed, as already noted, the resolving website is used for illegal activities. This evinces bad faith registration and use under Policy ¶ 4(a)(iii). See HDR Global Trading Ltd. v. Admin Code-mining, FA2112001977728 (Forum Jan. 24, 2022) (finding that Respondent's use of the disputed domain name to fraudulently extract cryptocurrency demonstrates bad faith registration and use.); see also Google Inc. v. Domain Admin, FA 1502001605239 (Forum Mar. 22, 2015) (finding that use of a disputed domain name to aid illegal activities under Complainant's trademark indicates Respondent's bad faith). Thus the Panel finds bad faith registration and use per under Policy ¶ 4(a)(iii).

 

Further, by merely adding an extra letter "n" to Complainant's mark, Respondent engages in typosquatting. A finding of typosquatting can evince bad faith under Policy ¶ 4(a)(iii). See Adorama, Inc. v. Moniker Privacy Services, FA1503001610020 (Forum May 1, 2015) ("Respondent has also engaged in typosquatting, which is additional evidence of bad faith registration and use under Policy ¶ 4(a)(iii). Respondents who capitalize on common typing errors engage in bad faith registration under Policy ¶ 4(a)(iii)."). As such, the Panel finds bad faith typosquatting under 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 <dominionnenergy.com> domain name be TRANSFERRED from Respondent to Complainant.

 

 

 

Richard Hill, Panelist

Dated: March 5, 2024