Addepar, Inc. v. Brittney Mickel / So1us
Claim Number: FA2109001966757
Complainant is Addepar, Inc. (“Complainant”), represented by Jessica Sganga of Knobbe Martens Olson & Bear LLP, California, USA. Respondent is Brittney Mickel / So1us (“Respondent”), New York, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <addepar.co>, registered with GoDaddy.com, LLC.
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.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on September 28, 2021; the Forum received payment on September 28, 2021.
On September 29, 2021, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <addepar.co> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.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 October 4, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 25, 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@addepar.co. Also on October 4, 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. Respondent did however send an email to the Forum, see below.
On November 1, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Richard Hill 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 states that it offers products and services in the field of wealth and asset management. Complainant claims rights in the ADDEPAR mark through its registration in the United States in 2012.
Complainant alleges that the domain name is confusingly similar to its ADDEPAR mark since it consists of the mark with the mere addition of the “.co” ccTLD.
According to Complainant, Respondent lacks rights or legitimate interests in the disputed domain name as it is not licensed or authorized to use the ADDEPAR mark. Additionally, Respondent does not use the disputed domain name for any bona fide offering of goods or services, nor for any legitimate noncommercial or fair use. Instead, Respondent attempts to benefit from Complainant’s goodwill by purporting to be associated with Complainant.
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith. Respondent falsely affiliates itself with Complainant. Respondent is also likely to use the disputed domain name in connection with impersonation or phishing: the resolving website lists an individual named Brittney Mickel (“Ms. Mickel”) as a point of contact and “cofounder” of Complainant. Since as early as 2014, Ms. Mickel has repeatedly misrepresented an affiliation between herself and Complainant. In particular, Ms. Mickel claims to be a founding equity partner at Complainant and she lists Complainant as part of her portfolio of companies—neither of which is true. In addition to the subject website, Ms. Mickel has made these misrepresentations on her LinkedIn page and other websites. Complainant sent a cease and desist letter regarding Ms. Mickel on May 29, 2020. As described therein, Ms. Mickel has engaged in phishing tactics with Complainant’s employees and clients. As such, it is very likely that Ms. Mickel will use the email address bmickel@addepar.co for similar bad faith purposes. Any use by Respondent or Ms. Mickel of an email address utilizing the disputed domain name is an attempt to impersonate Complainant and is evidence of Respondent’s bad faith in registering and using the subject domain name .Finally, Respondent registered the disputed domain name with actual knowledge of Complainant’s rights in the ADDEPAR mark: the resolving website display’s Complainant’s mark and logo.
B. Respondent
Respondent failed to submit a Response in this proceeding. In its email to the Forum, Respondent states: “I am a CoFounder of Addepar and am a Founder with Addepar LLC. and Addepar Inc.”
Complainant owns the mark ADDEPAR and uses it to provide financial services.
Complainant’s rights in its mark date back to 2012.
The disputed domain name was registered in 2021.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
The resolving website displays Complainant’s mark and logo and gives the impression that it is associated with Complainant, which is not the case.
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 disputed domain name consists of Complainant’s mark, with the mere addition of the “.co” country code top-level domain (“ccTLD” ). Addition of a TLD to a mark is insufficient to distinguish a domain name from the mark it incorporates per Policy ¶ 4(a)(i). See Blue Cross and Blue Shield Association v. Shi Lei aka Shilei, FA 1784643 (Forum June 18, 2018) (“A TLD (whether a gTLD, sTLD or ccTLD) is disregarded under a Policy ¶4(a)(i) analysis because domain name syntax requires TLDs.”). Therefore, the Panel finds that the disputed domain name is identical to Complainant’s mark under Policy ¶ 4(a)(i).
Complainant has not licensed or otherwise authorized Respondent to use its mark. Respondent is not commonly known by the disputed domain name: WHOIS information may be used to determine whether a Respondent is commonly known by a disputed domain name per Policy ¶ 4(c)(ii). See Bittrex, Inc. v. Operi Manaha, FA 1815225 (Forum Dec. 10, 2018) (concluding that the respondent was not commonly known by the <appbittrex.com> domain name where the WHOIS information listed Respondent as “Operi Manaha,” and nothing else in the record suggested Respondent was authorized to use the BITTREX mark.). Here, the WHOIS information of record identifies the registrant as “Brittney Mickel”. Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).
Respondent alleges that she is a co-founder of Complainant, but does not provide any evidence to support this allegation. Complainant formally disputes Respondent’s allegation. The Panel is not convinced by Respondent’s unsupported allegation. The resolving website gives the impression that it is associated with Complainant, but the Panel finds that such is not the case. This use of a disputed domain name is not considered a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) and (iii). See Ripple Labs Inc. v. NGYEN NGOC PHUONG THAO, FA 1741737 (Forum Aug. 21, 2017) (“Respondent uses the [disputed] domain name to divert Internet users to Respondent’s website… confusing them into believing that some sort of affiliation exists between it and Complainant… [which] is neither a bona fide offering of goods or services under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).”). Thus, the Panel finds that Respondent fails to use the disputed domain name to make a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii). And the Panel finds that Respondent does not have rights or legitimate interests in the disputed domain name.
Complainant alleges that Respondent has engaged in phishing in the past and is likely to use the disputed domain name in emails in furtherance of phishing, but it does not present any evidence to support those allegations. Consequently, the Panel finds that Complainant has failed to discharge its burden of proof for these allegations and it will not discuss them further.
As already noted, Respondent alleges that she is a co-founder of Complainant, but the Panel has not accepted this allegation. Thus Respondent 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, users visiting the resolving website are likely to be confused as to whether Respondent and/or its website is affiliated in some way with Complainant; and/or the disputed domain name or the associated website are endorsed, authorized, or sponsored by Complainant, none of which are true. This is a form of bad faith use of the disputed domain name. See Bank of America Corp. v. Out Island Props., Inc., FA 154531 (Forum June 3, 2003) (bad faith established “[s]ince the disputed domain names contain entire versions of Complainant’s marks and are used for something completely unrelated to their descriptive quality, a consumer searching for Complainant would become confused as to Complainant’s affiliation with the resulting search engine website.”).
Further, Respondent registered the disputed domain name with actual knowledge of Complainant’s mark: the resolving website displays Complainant’s mark and logo. While constructive notice is insufficient to demonstrate bad faith, actual knowledge of a complainant’s rights in a mark prior to registration may be evidence of bad faith per Policy ¶ 4(a)(iii). See Custom Modular Direct LLC v. Custom Modular Homes Inc., FA 1140580 (Forum Apr. 8, 2008) (“There is no place for constructive notice under the Policy.”); see also Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum Feb. 6, 2014) (“The Panel notes that although the UDRP does not recognize ‘constructive notice’ as sufficient grounds for finding Policy ¶ 4(a)(iii) bad faith, the Panel here finds actual knowledge through the name used for the domain and the use made of it.”); see also Univision Comm'cns Inc. v. Norte, FA 1000079 (Forum Aug. 16, 2007) (rejecting the respondent's contention that it did not register the disputed domain name in bad faith since the panel found that the respondent had knowledge of the complainant's rights in the UNIVISION mark when registering the disputed domain name). The Panel finds that Respondent had actual knowledge of Complainant’s rights in the mark prior to Respondent’s registration of the disputed domain name and that this constitutes bad faith registration and use under 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 <addepar.co> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: November 1, 2021
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