GoFundMe Inc. v. Patrick Bougard / Click 'n Donate / YoFundMI
Claim Number: FA1909001863110
Complainant is GoFundMe Inc. (“Complainant”), represented by Gail Podolsky of Carlton Fields Jorden Burt, P.A., Georgia, USA. Respondent is Patrick Bougard / Click 'n Donate / YoFundMI (“Respondent”), South Africa.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <gofundmesa.com>, <gofundmesouthafrica.com>, and <yofundmi.com> (“Domain Names”), registered with Tucows Domains Inc..
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.
Nicholas J.T. Smith as Panelist.
Complainant submitted a Complaint to the Forum electronically on September 19, 2019; the Forum received payment on September 19, 2019.
On September 20, 2019, Tucows Domains Inc. confirmed by e-mail to the Forum that the <gofundmesa.com>, <gofundmesouthafrica.com>, and <yofundmi.com> domain names are registered with Tucows Domains Inc. and that Respondent is the current registrant of the names. Tucows Domains Inc. has verified that Respondent is bound by the Tucows Domains 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 September 23, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 15, 2019 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@gofundmesa.com, postmaster@gofundmesouthafrica.com, postmaster@yofundmi.com. Also on September 23, 2019, 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, the Forum transmitted to the parties a Notification of Respondent Default.
On October 18, 2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Nicholas J.T. Smith as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the 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, the 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.
A. Complainant
Complainant owns and operates a platform for crowdfunding transactions. Complainant has rights in the GOFUNDME mark through its registration of the mark with the United States Patent and Trademark Office (“USPTO”) (e.g. Reg. No. 4,201,895, registered Sep. 4, 2012). Respondent’s <gofundmesa.com>, <gofundmesouthafrica.com>, and <yofundmi.com> domain names are identical or confusingly similar to Complainant’s mark as (in addition to the “.com” generic top-level domain (“gTLD”)) they either incorporate the GOFUNDME mark and add geographic indicators or are an intentional misspelling of Complainant’s mark.
Respondent has no rights or legitimate interests in the <gofundmesa.com>, <gofundmesouthafrica.com>, and <yofundmi.com> domain names. Respondent is not commonly known by the Domain Names, nor has Complainant authorized, licensed, or otherwise permitted Respondent to use the mark. Respondent fails to use the Domain Names in connection with a bona fide offering of goods or services or legitimate noncommercial or fair use. Rather, Respondent directs the Domain Names to a crowdfunding website in direct competition with Complainant.
Respondent registered and uses the <gofundmesa.com>, <gofundmesouthafrica.com>, and <yofundmi.com> domain names in bad faith. Respondent offered the Domain Names for sale in excess of out-of-pocket costs. Respondent attempts to divert Internet users, for commercial gain, to Respondent’s own competing website. Respondent engages in typosquatting with regard to the <yofundmi.com> domain name. Respondent had actual or constructive knowledge of Complainant’s rights in the GOFUNDME when registering the Domain Names.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant holds trademark rights for the GOFUNDME mark. Each of the Domain Names is confusingly similar to Complainant’s GOFUNDME mark. Complainant has established that Respondent lacks rights or legitimate interests in the use of the Domain Names and that Respondent registered and uses each of the Domain Names in bad faith.
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 has rights in the GOFUNDME mark based upon registration of the mark with the USPTO (Reg. No. 4,201,895, registered Sep. 4, 2012). Registration of a mark with the USPTO sufficiently confers a complainant’s rights in a mark for the purposes of Policy ¶ 4(a)(i). See Target Brands, Inc. v. jennifer beyer, FA 1738027 (Forum July 31, 2017) ("Complainant has rights in its TARGET service mark for purposes of Policy ¶ 4(a)(i) by virtue of its registration of the mark with a national trademark authority, the United States Patent and Trademark Office (“USPTO”).”).
The Panel finds that each of the Domain Names is confusingly similar to the GOFUNDME mark. The Domain Names <gofundmesa.com>, <gofundmesouthafrica.com> each incorporate the entire GOFUNDME mark while adding geographic indicators (“southafrica” and “sa”) and the “.com” (“gTLD”). Such changes are insufficient to distinguish a disputed domain name from a mark under Policy ¶ 4(a)(i) analysis. See Franklin Covey Co. v. franklincoveykorea, FA 1774660 (Forum Apr. 11, 2018) (finding that the <franklincoveykorea.com> domain name is confusingly similar to the FRANKLIN COVEY mark, as “[t]he addition of a geographic term and a gTLD do not negate confusing similarity between a domain name and a mark per Policy ¶ 4(a)(i).”).
The Domain Name <yofundmi.com> consists of a misspelling of the GOFUNDME Mark, replacing the first and last letters (“g” and “e”) with “y” and “I” to create a word that is a near sound-alike to Complainant’s GOFUNDME Mark. The Panel finds the minor misspelling of the GOFUNDME Mark (and the addition of the .com gTLD) does not distinguish the Domain Name <yofundmi.com> from the GOFUNDME Mark under Policy ¶ 4(a)(i). See Chegg Inc. v. Company CEO / Qulity Programming, FA 1610061 (Forum Apr. 20, 2015) (finding confusing similarity under Policy ¶ 4(a)(i) whereas “Respondent’s <chwgg.com> domain name is a simple misspelling of Complainant’s CHEGG.COM mark.”). See also Trip Network Inc. v. Alviera, FA 914943 (Forum Mar. 27, 2007) (finding top-level domains are irrelevant for purposes of Policy ¶ 4(a)(i) analysis).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(i).
Complainant alleges that Respondent holds no rights or legitimate interests in the Domain Names. In order for Complainant to succeed under this element, it must first make a prima facie case that Respondent lacks rights and legitimate interests in the Domain Names under Policy ¶ 4(a)(ii), and then the burden shifts to Respondent to show it does have rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006) and AOL LLC v. Gerberg, FA 780200 (Forum Sept. 25, 2006) (“Complainant must first 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, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.”). The Panel holds that Complainant has made out a prima facie case.
Complainant asserts that Respondent has no rights or legitimate interests in the Domain Names as Respondent is not commonly known by the Domain Names, nor has Complainant authorized Respondent to use the GOFUNDME mark. Respondent has no relationship, affiliation, connection, endorsement or association with Complainant. WHOIS information can help support a finding that a respondent is not commonly known by the disputed domain name, especially where a privacy service has been engaged. 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 Kohler Co. v. Privacy Service, FA1505001621573 (Forum July 2, 2015) (holding that the respondent was not commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii) where “Privacy Service” was listed as the registrant of the disputed domain name). The WHOIS information of record lists “Patrick Bougard / Click 'n Donate / YoFundMI” as the registrant of record. Coupled with Complainant’s unrebutted assertions as to absence of any affiliation or authorization between the parties, the Panel finds that Respondent is not commonly known by the Domain Names in accordance with Policy ¶ 4(c)(ii).
The Domain Names resolve to a website (“Respondent’s Website”) at www.clickanddonate.com advertising crowdfunding services under the name “Click ‘n Donate. The services purported to be offered or advertised by the Respondent’s Website are in direct competition to Complainant’s crowdfunding services and there has been no attempt to disclaim or otherwise make clear the absence of any association or connection with Complainant. Given the reputation of Complainant and its GOFUNDME Mark the Panel finds that Respondent is clearly using the confusingly similar domain names to divert Internet users to a competing website. Such use is not indicative of rights or legitimate interests per Policy ¶¶ 4(c)(i) or (iii). 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.”). See also Invesco Ltd. v. Premanshu Rana, FA 1733167 (Forum July 10, 2017) (“Use of a domain name to divert Internet users to a competing website is not a bona fide offering of goods or services or a legitimate noncommercial or fair use.”)..
The Panel finds Complainant has satisfied Policy ¶ 4(a)(ii).
The Panel finds on the balance of probabilities that, at the time of registration of the Domain Names, between June 6, 2018 and March 22 2019), Respondent had actual knowledge of Complainant’s GOFUNDME mark. Respondent appears to operate a direct competitor to Complainant and it would be implausible for a party to register three domain names each of which are confusingly similar to Complainant’s GOFUNDME mark and redirect them to the website that offers essentially identical services as Complainant absent awareness of Complainant’s GOFUNDME mark. In the absence of rights or legitimate interests of its own this demonstrates registration in bad faith under Policy ¶ 4(a)(iii).
The Panel finds that Respondent registered and uses the Domain Names in bad faith to create confusion with Complainant’s GOFUNDME Mark for commercial gain by using the confusingly similar Domain Names to divert Internet users to Respondent’s Website that offers crowdfunding services in direct competition with Complainant. Use of a domain name in this manner is behavior indicative of bad faith registration and use per Policy ¶ 4(b)(iv). See Citadel LLC and its related entity, KCG IP Holdings, LLC v. Joel Lespinasse / Radius Group, FA1409001579141 (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.”); see also CAN Financial Corporation v. William Thomson / CNA Insurance, FA1401001541484 (Forum Feb. 28, 2014) (finding that the respondent had engaged in bad faith under Policy ¶ 4(b)(iv), by using a confusingly similar domain name to attract Internet users to its own website where it sold competing insurance services). Accordingly, the Panel finds that Respondent registered and uses the Domain Names in bad faith pursuant to Policy ¶¶ 4(b)(iv).
The Panel finds Complainant has satisfied Policy ¶ 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 <gofundmesa.com>, <gofundmesouthafrica.com>, and <yofundmi.com> domain names be TRANSFERRED from Respondent to Complainant.
Nicholas J.T. Smith, Panelist
Dated: October 19, 2019
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page