DECISION
Wave Financial, Inc. v. Mitko Ivanov
Claim Number: FA2402002084961
PARTIES
Complainant is Wave Financial, Inc. ("Complainant"), represented by Timothy J. Feathers of Stinson LLP, Missouri, USA. Respondent is Mitko Ivanov ("Respondent"), Marshall Islands.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <wave-accounting.net>, registered with NameCheap, Inc.
PANEL
The undersigned certifies that he has acted independently and impartially, and, to the best of his knowledge, has no conflict of interests in serving as Panelist in this proceeding.
Terry F. Peppard as Panelist.
PROCEDURAL HISTORY
Complainant submitted a Complaint to Forum electronically on February 22, 2024; Forum received payment on February 22, 2024.
On February 22, 2024, NameCheap, Inc. confirmed by e-mail to Forum that the <wave-accounting.net> 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 February 22, 2024, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 13, 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 the attention of postmaster@wave-accounting.net. Also on February 22, 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 14, 2024, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Terry F. Peppard as sole Panelist in this proceeding.
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
Founded in 2010, Complainant markets small business accounting, invoicing, online payment processing, payroll, personalized bookkeeping services and related coaching throughout North America.
Complainant holds a registration for the trademark and service mark WAVE ACCOUNTING, on file with the United States Patent and Trademark Office ("USPTO") as Registry No. 4,694,024, registered March 3, 2015.
Complainant does business online at <waveaccounting.net>.
Respondent registered the domain name <wave-accounting.net> on February 1, 2021.
The domain name is confusingly similar to Complainant's WAVE ACCOUNTING mark.
Respondent has not been commonly known by the domain name.
Complainant has never granted to Respondent permission to use its WAVE ACCOUNTING mark in a domain name.
Respondent does not employ the domain name in connection with a bona fide offering of goods or services, nor is its employment of the domain name a legitimate noncommercial or fair use of it.
Respondent has attempted to hide its identity by registering the domain name through a privacy protection service.
Respondent knew of Complainant and its rights in the mark WAVE ACCOUNTING when it registered the domain name.
Respondent registered and now uses the domain name in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
FINDINGS
(1) the domain name registered by Respondent is confusingly similar to a trademark and service mark in which Complainant has rights; and
(2) Respondent has no rights to or legitimate interests in respect of the domain name; and
(3) the same domain name was registered and is being used by Respondent in bad faith.
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:
ii. Respondent has no rights to or legitimate interests in respect of the domain name; and
iii. the domain name has been registered and is being used by Respondent in bad faith.
Identical and/or Confusingly Similar
By reason of its registration of the WAVE ACCOUNTING mark with a national trademark authority, the USPTO, Complainant has established that it has rights in that mark sufficient to satisfy the requirement of Policy ¶ 4(a)(i) that it demonstrate standing to pursue its claim against Respondent in this proceeding. See, for example, Liberty Global Logistics, LLC v. damilola emmanuel / tovary services limited, FA 1738536 (Forum Aug. 4, 2017):
Registration of a mark with the USPTO sufficiently establishes the required rights in the mark for purposes of the Policy.
This is true without regard to whether Complainant's rights in its mark arise from registration of the mark in a jurisdiction (here the United States) other than that in which Respondent resides or does business (here the Marshall Islands). See, for example, W.W. Grainger, Inc. v. Above.com Domain Privacy, FA 1334458 (Forum Aug. 24, 2010):
[T]he Panel finds that USPTO registration is sufficient to establish these [Policy ¶ 4(a)(i)] rights even when Respondent lives or operates in a different country.
Turning to the core question posed by Policy ¶ 4(a)(i), we conclude from a review of the record that Respondent's <wave-accounting.net> domain name is confusingly similar to Complainant's WAVE ACCOUNTING mark. The domain name incorporates the mark in its entirety, with only the addition of a hyphen (-) and the generic Top Level Domain ".net." These alterations of the mark, made in creating the domain name, do not enable it to escape the realm of confusing similarity under the standards of the Policy. See, for example, Isleworth Land Co. v. Lost in Space, SA, FA 117330 (Forum Sept. 27, 2002):
[I]t is a well-established principle that generic top-level domains are irrelevant when conducting a Policy ¶ 4(a)(i) analysis.
This is because every domain name requires a gTLD or other TLD.
And, as to Respondent's deletion of the space between the terms of Complainant's mark and its insertion of a hyphen in place of that space, these alterations of the mark, made in creating the domain name, are of no consequence to our analysis of the question of confusing similarity. Specifically as to the addition of a hyphen to the mark, a hyphen adds nothing to the meaning, nor does it change the phonetic character, of the result. See, for example, Innomed Techs., Inc. v. DRP Servs., FA 221171 (Forum Feb. 18, 2004) (finding that hyphens included in a domain name are irrelevant in an analysis of the question of confusing similarity Policy ¶ 4(a)(i)).
Likewise, with regard to Respondent's deletion of the space between the terms of Complainant's mark, this modification of the mark does not affect the outcome of our analysis. See, for example, Gurney's Inn Resort & Spa Ltd. v. Whitney, FA 140656 (Forum Feb. 19, 2003):
[S]paces between words are not significant in determining the similarity of a domain name and a mark because … spaces are not reproducible in a domain name.
Rights or Legitimate Interests
Policy ¶4(a)(ii) requires that Complainant make a prima facie showing that Respondent has neither rights to nor legitimate interests in the <wave-accounting.net> domain name, whereupon the burden shifts to Respondent to show that it does have such rights or interests. See Hanna-Barbera Prods., Inc. v. Entm't Commentaries, FA 741828 (Forum Aug. 18, 2006) (finding that a UDRP complainant must make a prima facie case that a respondent lacks rights to or legitimate interests in a disputed domain name under UDRP¶4(a)(ii) before the burden shifts to that respondent to show that it does have such rights or interests). See also AOL LLC v. Gerberg, FA 780200 (Forum Sept. 25, 2006):
Complainant must … make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, … the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.
Complainant has made a sufficient prima facie showing under this head of the Policy. Respondent's failure to respond to the Complaint therefore permits us to infer that Respondent does not have rights to or legitimate interests in the disputed domain name. See, for example, Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO Dec. 21, 2000) (finding that a respondent's failure to respond to a UDRP complaint allows a presumption that a complainant's allegations are true unless they are clearly contradicted by the evidence). Nonetheless, we will examine the record before us, in light of the several considerations set out in Policy ¶ 4(c)(i)-(iii), to determine whether there is in it any basis for concluding that Respondent has rights to or legitimate interests in the contested domain name that are cognizable under the Policy.
We begin by noting that Complainant contends, and Respondent does not deny, that Respondent has not been commonly known by the <wave-accounting.net> domain name, and that Complainant has not licensed or otherwise authorized Respondent to use the WAVE ACCOUNTING mark in a domain name. Moreover, the pertinent WHOIS information identifies the registrant of the domain name only as "Mitko Ivanov," which does not resemble the domain name. On this record, we conclude that Respondent has not been commonly known by the disputed domain name so as to have acquired rights to or legitimate interests in it within the ambit of Policy ¶ 4(c)(ii). See, for example, Google LLC v. Bhawana Chandel / Admission Virus, FA 1799694 (Forum Sept. 4, 2018) (concluding that a respondent was not commonly known by a disputed domain name incorporating the GOOGLE mark where the relevant WHOIS record identified that respondent as "Bhawana Chandel," and nothing in the record showed that that respondent was authorized to use a UDRP Complainant's mark in any manner).
We next observe that Complainant asserts, without objection from Respondent, that Respondent uses the <wave-accounting.net> domain name to resolve to a website that mimics Complainant's official website and passes Respondent off as Complainant while purporting to offer accounting and invoice tracking services like those of Complainant, all in furtherance of a fraudulent phishing scheme by which it seeks to profit by purloining and exploiting the sensitive personal financial information of unsuspecting Internet users. This employment is neither a bona fide offering of goods or services by means of the domain name under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use of it under Policy ¶ 4(c)(iii) such as would confirm in Respondent rights to or legitimate interests in the domain name as provided in those subsections of the Policy. See, for example, Crow v. LOVEARTH.net, FA 203208 (Forum Nov. 28, 2003):
It is neither a bona fide offerings [sic] of goods or services, nor an example of a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) & (iii) when the holder of a domain name, confusingly similar to a registered mark, attempts to profit by passing itself off as Complainant ....
The Panel therefore finds that Complainant has satisfied the proof requirements of Policy ¶ 4(a)(ii).
Registration and Use in Bad Faith
We are persuaded by the evidence that Respondent's use of the <wave-accounting.net> domain name, as alleged in the Complaint, disrupts Complainant's business. Under Policy ¶ 4(b)(iii), this stands as proof of Respondent's bad faith in registering and using the domain name. See, for example, Brownell Travel, Inc. v. Troy Haas, FA1589137 (Forum Dec. 20, 2014) (finding that the use of a challenged domain name to send to a UDRP complainant's account manager emails impersonating the CEO of that complainant in an attempt to commit financial fraud on that complainant constituted evidence of bad faith registration and use of the domain name under Policy ¶ 4(b)(iii)).
We are also convinced by the evidence that Respondent knew of Complainant and its rights in the WAVE ACCOUNTING mark when it registered the <wave-accounting.net> domain name. This further demonstrates Respondent's bad faith in registering the domain name. See, for example, Minicards Vennootschap v. Moscow Studios, FA 1031703 (Forum Sept. 5, 2007) (finding that a UDRP respondent registered a domain name in bad faith within the meaning of Policy ¶ 4(a)(iii), having first concluded that that respondent had actual knowledge of Complainant's mark when registering the disputed domain name).
The Panel thus finds that Complainant has met its obligations of proof under Policy ¶ 4(a)(iii).
DECISION
Complainant having established all three elements required to be proven under the ICANN Policy, the Panel concludes that the relief requested must be, and it is hereby, GRANTED.
Accordingly, it is Ordered that the <wave-accounting.net> domain name be TRANSFERRED forthwith from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: March 27, 2024
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