eVestment Alliance, LLC v. John Neuville
Claim Number: FA2006001899160
Complainant is eVestment Alliance, LLC (“Complainant”), represented by Monica Riva Talley of Sterne, Kessler, Goldstein & Fox PLLC, District of Columbia, USA. Respondent is John Neuville (“Respondent”), Minnesota, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <evestrnent.com>, registered with Name.com, 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.
Alan L. Limbury, as Panelist.
Complainant submitted a Complaint to the Forum electronically on June 5, 2020; the Forum received payment on June 5, 2020.
On June 9, 2020, Name.com, Inc. confirmed by e-mail to the Forum that the <evestrnent.com> domain name is registered with Name.com, Inc. and that Respondent is the current registrant of the name. Name.com, Inc. has verified that Respondent is bound by the Name.com, 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 June 10, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 30, 2020 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@evestrnent.com. Also on June 10, 2020, 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 July 2, 2020, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Alan L. Limbury 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 name be transferred from Respondent to Complainant.
A. Complainant
Complainant, eVestment Alliance, LLC, is a global financial technology, trading, and information services provider. Complainant has rights in the EVESTMENT mark based upon registration with the United States Patent and Trademark Office (“USPTO”). Respondent’s <evestrnent.com> domain name is confusingly similar to Complainant’s EVESTMENT mark.
Respondent does not have rights or legitimate interests in the <evestrnent.com> domain name because Respondent is not commonly known by the disputed domain name; is not authorized or permitted to use Complainant’s EVESTMENT mark; and fails to use the disputed domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use. Instead, Respondent uses the disputed domain name to impersonate Complainant in furtherance of an e-mail phishing scheme by misleading and deceiving Complainant’s consumers and legitimate clients in order to obtain Complainant’s rightful funds.
On information and belief, Respondent registered the <evestrnent.com> domain name on April 23, 2020 to further a scheme in which Respondent hacked into Complainant’s email server to retrieve correspondence between the Corporate Collections Analyst of Complainant and one of its clients. Respondent mimicked the employee’s email address by using her username followed by the disputed domain name. The original email chain began on April 17, 2020 and involved an overdue payment of an invoice from Complainant. On April 23, 2020, using the fraudulent email address, Respondent replied to the client’s email inquiring as to when the invoice would be paid and then sent a follow-up email requesting that the client pay 50% of the total invoice balance within four days.
Respondent registered and uses the <evestrnent.com> domain name in bad faith to disrupt Complainant’s business and commercially benefit Respondent by impersonating Complainant in an e-mail phishing scheme. Additionally, Respondent fails to make active use of the disputed domain name. Respondent’s typosquatting behavior is evidence of bad faith registration and use.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has established all the elements entitling it to relief.
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 shown that it has rights in the EVESTMENT trademark through its registration with the USPTO, Reg. No. 4,406,662, registered Sep. 24, 2013.
The Panel finds Respondent’s <evestrnent.com> domain name to be confusingly similar to Complainant’s EVESTMENT mark since it replaces the letter “m” with the visually similar combination of the letters “r” and “n” and adds the inconsequential “.com” gTLD, which may be disregarded.
(i) before any notice to Respondent of the dispute, the use by Respondent of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) Respondent (as an individual, business or other organization) has been commonly known by the domain name, even if Respondent has acquired no trademark or service mark rights; or
(iii) Respondent is making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert customers or to tarnish the trademark or service mark at issue.
The disputed domain name was registered on April 23, 2020. Although it does not resolve to an active website, Complainant’s evidence shows that it has been used to impersonate Complainant in an endeavor to divert to Respondent a payment due to Complainant.
These circumstances, together with Complainant’s assertions, are sufficient to constitute a prima facie showing of absence of rights or legitimate interests in respect of the disputed domain name on the part of Respondent. The evidentiary burden therefore shifts to Respondent to show that it does have rights or legitimate interests in the disputed domain name. See Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014). Respondent has made no attempt to do so.
The Panel finds that Respondent has no rights or legitimate interests in respect
of the disputed domain name.
Paragraph 4(b) of the Policy sets out four illustrative circumstances, which, though not exclusive, shall be evidence of the registration and use of the domain name in bad faith for purposes of paragraph 4(a)(iii) of the Policy, including:
The <evestrnent.com> domain name is a typosquatted version of Complainant’s EVESTMENT trademark. This alone constitutes bad faith registration and use. See Morgan Stanley v. Doniqish Doniqish, FA2005001898199 (Forum June 24, 2020): (“The Domain Name seeks 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”).
Further, Respondent’s use of the disputed domain name to impersonate Complainant in an endeavor to divert to Respondent a payment due to Complainant demonstrates that Respondent was well aware of Complainant’s mark at the time of registration and both registered and used the disputed domain name in bad faith in the circumstances set out in Paragraph 4(b) (iv) of the Policy.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <evestrnent.com> domain name be TRANSFERRED from Respondent to Complainant.
Alan L. Limbury, Panelist
Dated: July 3, 2020
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