Wells Fargo & Company v. mccbrridezyaire mccbrridezyaire
Claim Number: FA2102001932159
Complainant is Wells Fargo & Company (“Complainant”), represented by Felicia J. Boyd of Norton Rose Fulbright US LLP, Minnesota, USA. Respondent is mccbrridezyaire mccbrridezyaire (“Respondent”), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <wvellsfargo.com>, registered with NameCheap, Inc.
The undersigned certifies that she has acted independently and impartially and to the best of her knowledge has no known conflict in serving as Panelist in this proceeding.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to the Forum electronically on February 15, 2021; the Forum received payment on February 15, 2021.
On February 15, 2021, NameCheap, Inc. confirmed by e-mail to the Forum that the <wvellsfargo.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 February 18, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 10, 2021 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@wvellsfargo.com. Also on February 18, 2021, 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 March 14, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Sandra J. Franklin 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
1. Respondent’s <wvellsfargo.com> domain name is confusingly similar to Complainant’s WELLS FARGO mark.
2. Respondent does not have any rights or legitimate interests in the <wvellsfargo.com> domain name.
3. Respondent registered and uses the <wvellsfargo.com> domain name in bad faith.
B. Respondent did not file a Response.
Complainant, Wells Fargo & Company, operates one of the world’s largest financial service companies. Complainant holds a registration for the WELLS FARGO mark with the United States Patent and Trademark Office (“USPTO”) (Reg. 779,187, registered on Oct. 27, 1964).
Respondent registered the <wvellsfargo.com> domain name on December 2, 2020, and fails to make active use of the domain name.
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”).
The Panel finds that Complainant has rights in the WELLS FARGO mark under Policy ¶ 4(a)(i) through its registration with the USPTO. See Liberty Global Logistics, LLC v. damilola emmanuel / tovary services limited, FA 1738536 (Forum Aug. 4, 2017) (stating, “Registration of a mark with the USPTO sufficiently establishes the required rights in the mark for purposes of the Policy.”).
Respondent’s <wvellsfargo.com> domain name uses Complainant’s WELLS FARGO mark and simply adds a “V” and the “.com” gTLD. These changes do not distinguish a domain name from a mark under Policy ¶ 4(a)(i). See OpenTable, Inc. v. Above.com Domain Privacy, FA 1626187 (Forum Aug. 10, 2015 (“Respondent’s <oipentable.com> domain name is confusingly similar to the OPENTABLE mark under Policy ¶ 4(a)(i) because the disputed domain merely adds the letter ‘i’ . . . ”). Thus, the Panel finds that Respondent’s <wvellsfargo.com> domain name is confusingly similar to Complainant’s WELLS FARGO mark.
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(i).
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 lacks rights and legitimate interests in the <wvellsfargo.com> domain name as it is not commonly known by the disputed domain name and is not an authorized user of the WELLS FARGO mark. The WHOIS information of record indicates that the registrant of the disputed domain name utilized a privacy service. However, the registrar identified Respondent as “mccbrridezyaire mccbrridezyaire.” Therefore the Panel finds that Respondent is not commonly known by the disputed domain, and thus has no rights under Policy ¶ 4(c)(ii). See Chevron Intellectual Property LLC v. Fred Wallace, FA1506001626022 (Forum July 27, 2015) (finding that the respondent was not commonly known by the <chevron-europe.com> domain name under Policy ¶ 4(c)(ii), as the WHOIS information named “Fred Wallace” as registrant of the disputed domain name).
Complainant also argues that Respondent does not use the <wvellsfargo.com> domain name for any bona fide offering of goods or services or a legitimate noncommercial or fair use, but instead fails to make an active use of the disputed domain name. Hosting an inactive website does not qualify as a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii). See Thermo Electron Corp. v. Xu, FA 713851 (Forum July 12, 2006) (finding that the respondent’s non-use of the disputed domain names demonstrates that the respondent is not using the disputed domain names for a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii)). Complainant provides a screenshot of the resolving website for the disputed domain name, which does not contain any substantive content. 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 lacks rights and legitimate interests in the disputed domain name under Policy ¶¶ 4(c)(i) and (iii).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant argues that Respondent registered and uses the <wvellsfargo.com> domain name in bad faith as Respondent disrupts Complainant’s business by directing Internet users to an inactive website. Previous Panels have held that failure to make active use of a disputed domain name constitutes bad faith disruption under Policy ¶ 4(b)(iii). See Love City Brewing Company v. Anker Fog / Love City Brewing Company, FA 1753144 (Forum Nov. 27, 2017) (Finding that Respondent disrupts Complainant’s business by pointing Internet users to an expired webpage. This may create the perception that Complainant is closed, never existed, or is not a legitimate business. Therefore, the Panel finds that Respondent registered and uses the disputed domain names in bad faith per Policy ¶ 4(b)(iii).). Accordingly, the Panel find that Respondent registered and uses the disputed domain name in bad faith under Policy ¶ 4(b)(iii).
Complainant also contends that Respondent registered the <wvellsfargo.com> domain name in bad faith as Respondent engaged in typosquatting. Typosquatting, or introducing common typographical errors to divert Internet traffic to a domain name constitutes bad faith under Policy ¶ 4(a)(iii). See Cost Plus Management Services, Inc. v. xushuaiwei, FA 1800036 (Forum Sept. 7, 2018) (“Typosquatting itself is evidence of relevant bad faith registration and use.”). Therefore, the Panel finds bad faith under Policy ¶ 4(a)(iii).
Complainant argues that Respondent registered the <wvellsfargo.com> domain name with actual knowledge of Complainant’s rights in the WELLS FARGO mark. Under Policy ¶ 4(a)(iii), actual knowledge of another’s trademark rights prior to registration is sufficient to establish bad faith, and may be demonstrated by the fame of a mark. See iFinex Inc. v. xu shuaiwei, FA 1760249 (Forum Jan. 1, 2018) (“Respondent’s prior knowledge is evident from the notoriety of Complainant’s BITFINEX trademark as well as from Respondent’s use of its trademark laden domain name to direct internet traffic to a website which is a direct competitor of Complainant”). Since Complainant operates one of the largest financial institutions in the United States, and has registered the WELLS FARGO mark with various international authorities, the Panel finds that Respondent registered the disputed domain name with knowledge of Complainant’s rights, in bad faith under Policy ¶ 4(a)(iii).
The Panel finds that 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 <wvellsfargo.com> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: March 15, 2021
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