Wells Fargo & Company v. David Ghou
Claim Number: FA1307001507686
Complainant is Wells Fargo & Company (“Complainant”), represented by Felicia J. Boyd of Barnes & Thornburg LLP, Minnesota, USA. Respondent is David Ghou (“Respondent”), Indonesia.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <wellsvargo.com>, 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.
Paul M. DeCicco, as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on July 1, 2013; the National Arbitration Forum received payment on July 2, 2013.
On Jul 01, 2013, GODADDY.COM, LLC confirmed by e-mail to the National Arbitration Forum that the <wellsvargo.com> domain name is registered with GODADDY.COM, LLC and that Respondent is the current registrant of the names. 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 July 2, 2013, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 22, 2013 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@wellsvargo.com. Also on July 2, 2013, 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 National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On July 25, 2013, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Paul M. DeCicco as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration 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 National Arbitration 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 contends as follows:
Complainant contends that it has rights in the WELLS FARGO mark, used in connection with financial services. Complainant is the owner of registrations for the WELLS FARGO mark (e.g., Reg. No. 779,187 registered Oct. 27, 1964) with the United States Patent and Trademark Office (“USPTO”). Complainant also owns registrations for the mark with the Directorate General of Intellectual Property Rights of Indonesia as well as numerous other registries worldwide.
The disputed domain name is confusingly similar to Complainant’s mark. Respondent’s <wellsvargo.com> domain name is a misspelling of the WELLS FARGO mark, merely replacing the letter “f” with the letter “v.”
Respondent does not own any rights nor have any legitimate interests in the <wellsvargo.com> domain name. There is no evidence that Respondent has ever been commonly known by the disputed domain name, and Respondent is not a licensee of Complainant. Respondent is not making a bona fide offering of goods or services or a legitimate noncommercial or fair use of the domain name. The at-issue domain name resolves to a generic landing page featuring third party advertising links to providers of various bank-related products and services.
Respondent registered and is using the <wellsvargo.com> domain name in bad faith. Respondent uses and registered the disputed domain name to attract Internet users by creating a likelihood of confusion with Complainant’s WELLS FARGO mark. The domain name resolves to a generic landing page featuring third party advertising links to providers of various bank-related products and services. Complainant infers that Respondent is attempting to play off Complainant’s famous mark to create consumer confusion for financial gain.
Respondent had notice of Complainant’s mark because at the time the disputed domain name was registered the WELLS FARGO mark was distinctive and internationally famous. Complainant has more than 27 million customers in over 6,000 locations.
Respondent’s registration and use of the disputed domain name constitutes typosquatting.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns a USPTO registered trademark for WELLS FARGO as well as owning registrations in numerous other countries including Indonesia.
Respondent is not affiliated with Complainant and had not been authorized to use the WELLS FARGO mark in any capacity.
Respondent registered the at‑issue domain name after Complainant acquired trademark rights in WELLS FARGO.
Respondent presumably is paid a click through fee when Internet users visit <wellsvargo.com> and click on a link on the landing page. On clicking one of the links the user is diverted to a third-party website which may compete with Complainant’s goods or services.
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(e), 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 and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
The at-issue domain name is confusingly similar to a trademark in which Complainant has rights.
Complainant is the owner of registrations for the WELLS FARGO mark USPTO and also owns registrations for the mark in numerous other countries including Indonesia. Therefore, the Panel concludes that the Complainant has rights in the WELLS FARGO mark pursuant to Policy ¶ 4(a)(i). See Miller Brewing Co. v. Miller Family, FA 104177 (Nat. Arb. Forum Apr. 15, 2002) (finding that the complainant had established rights to the MILLER TIME mark through its federal trademark registrations).
Respondent’s <wellsvargo.com> level domain name is a misspelling of the WELLS FARGO mark where the letter “f” is replaced with the letter “v,” the space is removed and the top-level domain “.com” appended thereto. The misspelling of Complainant’s mark does not distinguish the disputed domain name from Complainant’s mark nor is the top-level domain relevant for the purposes of confusing similarity analysis. Therefore, the Panel finds that the disputed domain name is confusingly similar to Complainant’s WELLS FARGO mark under Policy ¶4(a)(i). See Belkin Components v. Gallant, FA 97075 (Nat. Arb. Forum May 29, 2001) (finding the <belken.com> domain name confusingly similar to the complainant's BELKIN mark because the name merely replaced the letter “i” in the complainant's mark with the letter “e”); see also Trip Network Inc. v. Alviera, FA 914943 (Nat. Arb. Forum Mar. 27, 2007) (concluding that the affixation of a gTLD to a domain name is irrelevant to a Policy ¶ 4(a)(i) analysis). Therefore, the Panel finds that the disputed domain name is confusingly similar to Complainant’s WELLS FARGO mark under Policy ¶4(a)(i).
Respondent lacks both rights and legitimate interests in respect of the at-issue domain name. Respondent is not authorized to use Complainant’s trademark in any capacity and, as discussed below, there are no Policy ¶4(c) circumstances from which the Panel might find that Respondent has rights or interests in respect of the domain name.
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. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006). Since Respondent failed to respond and since as discussed below there is no evidence supporting a finding pursuant to Policy 4(c) that Respondent has rights or interests in the at-issue domain name, Complainant’s prima facie showing acts conclusively.
WHOIS information identifies “David Ghou” as the at-issue domain name’s registrant. Moreover, the record before the Panel contains no evidence that suggests Respondent is otherwise commonly known by the domain name. The Panel thus concludes that Respondent is not commonly known by the at-issue domain name for the purposes of Policy ¶ 4(c)(ii). See Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Nat. Arb. Forum July 17, 2006) (concluding that the respondent was not commonly known by the <coppertown.com> domain name where there was no evidence in the record, including the WHOIS information, suggesting that the respondent was commonly known by the disputed domain name); see also Reese v. Morgan, FA 917029 (Nat. Arb. Forum Apr. 5, 2007) (concluding that the respondent was not commonly known by the <lilpunk.com> domain name as there was no evidence in the record showing that the respondent was commonly known by that domain name, including the WHOIS information as well as the complainant’s assertion that it did not authorize or license the respondent’s use of its mark in a domain name).
The disputed domain name resolves to a generic landing page featuring third party advertising links to providers of various bank-related products and services. Using the domain name to host links of competing commercial websites is this manner is neither a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(ii). See ALPITOUR S.p.A. v. Albloushi, FA 888651 (Nat. Arb. Forum Feb. 26, 2007) (rejecting the respondent’s contention of rights and legitimate interests in the <bravoclub.com> domain name because the respondent was merely using the domain name to operate a website containing links to various competing commercial websites, which the panel did not find to be a use in connection with a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii)).
Given the forgoing, Complainant satisfies its initial burden and conclusively demonstrates Respondent’s lack of rights and lack of interests in respect of the at-issue domain name under Policy ¶4(a)(ii).
The at‑issue domain name was registered and is being used in bad faith. As discussed below, Policy ¶4(b) specific bad faith circumstances, as well as other circumstance, are present which compel the Panel to conclude that Respondent acted in bad faith pursuant to paragraph 4(a)(iii) of the Policy.
Respondent uses and registered the <wellsvargo.com> to attract Internet users by creating a likelihood of confusion with Complainant’s WELLS FARGO mark. The at-issue domain name addresses a generic landing page featuring pay-per-click links to providers of various bank-related products and services including hyperlinks such as “ONLINE BANKING,” “Internet Banking,” and “Apply For a Credit Card.” By using the domain name in this manner Respondent is attempting to play off Complainant’s well-known mark to create consumer confusion for financial gain. Diverting Internet users searching for Complainant while also profiting from the diversion constitutes bad faith under Policy ¶ 4(b)(iv). See Allianz of Am. Corp. v. Bond, FA 680624 (Nat. Arb. Forum June 2, 2006) (finding bad faith registration and use under Policy ¶ 4(b)(iv) where the respondent was diverting Internet users searching for the complainant to its own website and likely profiting).
Furthermore, Respondent’s registration and use of the disputed domain name constitutes typosquatting. In Liberty Mut. Ins. Co. v. Domain Park Ltd., FA 1189049 (Nat. Arb. Forum June 23, 2008), the panel defined typosquatting as the “registration of a disputed domain name that capitalizes on Internet users’ typographical errors.” In the instant case, Respondent capitalizes on the mistakes of Internet uses who accidentally press the letter “v” rather than the proximate letter “f” while attempting to type “wells fargo.” Typosquatting is, in and of itself, evidence of bad faith under Policy ¶ 4(a)(iii). See Computerized Sec. Sys., Inc. v. Hu, FA 157321 (Nat. Arb. Forum June 23, 2003) (finding that the respondent engaged in typosquatting, which is evidence of bad faith registration and use under Policy ¶ 4(a)(iii)).
Finally, Respondent was aware of Complainant’s WELLS FARGO trademark at the time it registered the at-issue domain name. The WELLS FARGO mark is distinctive and internationally well-known. Moreover, the overt intentional misspelling of the mark in forming the at-issue domain name indicates that Respondent knew the correct spelling of Complainant’s mark prior to registering the domain name. Respondent’s actual knowledge of Complainant's mark and rights prior to registering the domain name additionally shows that Respondent registered the at-issue domain name in bad faith under Policy ¶ 4(a)(iii). See Minicards Vennootschap Onder FIrma Amsterdam v. Moscow Studios, FA 1031703 (Nat. Arb. Forum Sept. 5, 2007) (holding that respondent registered a domain name in bad faith under Policy ¶ 4(a)(iii) after concluding that respondent "actual knowledge of Complainant's mark when registering the disputed domain name"); see also Yahoo! Inc. v. Butler, FA 744444 (Nat. Arb. Forum Aug. 17, 2006) (finding bad faith where the respondent was "well-aware of the complainant's YAHOO! mark at the time of registration).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <wellsvargo.com> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: July 28, 2013
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