FTI Consulting, Inc. v. Kabir Afolabi
Claim Number: FA2203001988340
Complainant is FTI Consulting, Inc. (“Complainant”), represented by Ryan C. Compton of DLA Piper LLP, District of Columbia, USA. Respondent is Kabir Afolabi (“Respondent”), Nigeria.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <fticonsultlng.com>, registered with NameCheap, Inc.
PANEL
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 March 15, 2022. The Forum received payment on March 15, 2022.
On March 15, 2022, NameCheap, Inc. confirmed by e-mail to the Forum that the <fticonsultlng.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 March 17, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 6, 2022 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@fticonsultlng.com. Also on March 17, 2022, 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 April 11, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Alan L. Limbury as Panelist.
On April 12, 2022, the Administrative Panel (the "Panel") issued an Order, pursuant to Rule 12 of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") requesting that Complainant submit a correct Annex H, which refers to the disputed domain name and includes the screenshots mentioned in the Amended Complaint, and have it e-mailed to the Forum and Respondent no later than April 15, 2022. On April 12, 2022, Complainant submitted an amended Annex H which did not relate to the disputed domain name. At the request of the Panel, the Forum notified Complainant that it had until April 15, 2022 to comply with the Order. On April 14, 2022, Complainant submitted a further document which omitted the requested screenshots.
Having reviewed the communications records, the Panel finds that the Forum has discharged its responsibility under Paragraph 2(a) of 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 is a world-renowned business advisory firm. Complainant has rights in the FTI CONSULTING mark through use since as early as 1982 and numerous registrations over many years around the world, including with the United States Patent and Trademark Office (“USPTO”). Respondent’s <fticonsultlng.com> domain name is confusingly similar to Complainant’s FTI CONSULTING mark.
Complainant operates its official Internet web site at <fticonsulting.com>.
Respondent lacks rights or legitimate interests in the <fticonsultlng.com> domain name as Respondent is not commonly known by the domain name nor did Complainant authorize Respondent to use the FTI CONSULTING mark in any way.
As of at least as early as February 21, 2022, Respondent used the domain name to make unauthorized use of the FTI CONSULTING mark in connection with sending emails that purport to offer network employment opportunities with Complainant from the following accounts: matthew@fticonsultlng.com, hr_team@fticonsultlng.com, and matthewpalme.rin@fticonsultlng.com. The email discusses a resume that was received by “Matthew Palmerin” who is a “Senior Consultant and Forensic Accounting & Advisory Services with FTI.” A screenshot of the email sent by <matthewpalme.rin@fticonsultlng.com> on January 22, 2022 is attached in Annex H.
Respondent is clearly not using the domain name in connection with any bona fide offering of goods or services or legitimate non-commercial or fair use under Policy ¶¶ 4(c)(i) and (iii).
Respondent registered and used the <fticonsultlng.com> domain name in bad faith as Respondent’s domain name fails to resolves to an active webpage. Respondent had actual knowledge of Complainant’s rights in the FTI CONSULTING mark due to the longstanding use and fame of the mark in commerce. Respondent is using the domain name to disrupt and harm Complainant’s business and to attract third-parties using false pretences for commercial gain.
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 FTI CONSULTING mark through numerous registrations of the mark in many countries, including with the USPTO (e.g. Reg. No. 3,941,049, registered April 5, 2011). The Panel finds Respondent’s <fticonsultlng.com> domain name to be confusingly similar to Complainant’s FTI CONSULTING mark since it incorporates the mark in its entirety, simply replacing the second letter “i” with an “l” and adding the inconsequential “.com” generic top-level domain (“gTLD”), which may be ignored.
Complainant has established this element.
(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.
Although Complainant has shown, in response to the Panel’s Order, that the <fticonsultlng.com> domain name does not resolve to an active website, Complainant has failed, by way of Annex H or otherwise, to provide evidence of any use by Respondent of the domain name to send emails. Accordingly, in assessing the second and third elements, the Panel excludes such alleged use from its consideration.
The <fticonsultlng.com> domain name was registered on November 23, 2021, many years after Complainant has shown that its FTI CONSULTING mark had become very well-known worldwide. It does not resolve to an active website.
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 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 <fticonsultlng.com> domain name. See JUUL Labs, Inc. v. Dryx Emerson / KMF Events LTD, FA1849706 (Forum July 17, 2019).
Respondent has made no attempt to do so.
The <fticonsultlng.com> domain name is clearly a typosquatted version of Complainant’s FTI CONSULTING mark. The Panel adopts the findings in FTI Consulting, Inc. v. Megan MacArt / ftisconsulting, FA1988520 (Forum April 13, 2022):
“…by registering the Domain Name with a subtle misspelling of Complainant’s mark, adding an “s” between “FTI” and “consulting,” Respondent is guilty of typosquatting, which is the intentional misspelling of a protected trademark to take advantage of typing errors made by Internet users seeking the web sites of the owners of the mark. Registering a typosquatted domain name has been held to evidence a lack of rights and legitimate interests in the domain name for the purposes of Policy ¶ 4(a)(ii). Chegg Inc. v. yang qijin, FA1503001610050 (Forum Apr. 23, 2015) (“Users might mistakenly reach Respondent’s resolving website by misspelling Complainant’s mark. Taking advantage of Internet users’ typographical errors, known as typosquatting, demonstrates a respondent’s lack of rights or legitimate interests under Policy ¶ 4(a)(ii).”). The Panel finds that Respondent has no rights or legitimate interests in respect of the domain name.”
Complainant has established this element.
Registration and Use in Bad Faith
The four illustrative circumstances set out in paragraph 4(b) of the Policy as evidence of the registration and use of a domain name in bad faith for purposes of paragraph 4(a)(iii) are not exclusive.
In the present case, the <fticonsultlng.com> domain name is clearly a deliberately typosquatted version of Complainant’s very well-known and distinctive FTI CONSULTING mark. There is no plausible explanation for the registration of the domain name other than to take advantage of the goodwill of Complainant. See Yahoo! Inc. and GeoCities v. Cupcakes, Cupcake City, Cupcake Confidential, Cupcake-Party, Cupcake Parade, and John Zuccarini, Case No. D2000-0777 (WIPO Oct. 2, 2000).
Typosquatting is independent evidence of bad faith registration and use of a domain name per Policy ¶ 4(a)(iii). See Homer TLC, Inc. v. Artem Ponomarev, FA1623825 (Forum July 20, 2015).
Further, as in the leading case of Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003), there is no conceivable active use that could be made of the <fticonsultlng.com> domain name that would not amount to an infringement of Complainant’s rights. Accordingly, the Panel finds that Respondent’s passive use of the domain name also constitutes use in bad faith.
Complainant has established this element.
DECISION
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <fticonsultlng.com> domain name be TRANSFERRED from Respondent to Complainant.
Alan L. Limbury, Panelist
Dated: April 15, 2022
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page