Fair Isaac Corporation v. Pham Dinh Nhut
Claim Number: FA1409001582274
Complainant is Fair Isaac Corporation (“Complainant”), represented by CitizenHawk, Inc., California, USA. Respondent is Pham Dinh Nhut (“Respondent”), Vietnam.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <mufico.com> and <myfco.com>, registered with APRIL SEA INFORMATION TECHNOLOGY CORPORATION.
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.
David E. Sorkin as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on September 29, 2014; the National Arbitration Forum received payment on September 29, 2014. The Complaint was submitted in both English and Vietnamese.
On October 2, 2014, APRIL SEA INFORMATION TECHNOLOGY CORPORATION confirmed by email to the National Arbitration Forum that the <mufico.com> and <myfco.com> domain names are registered with APRIL SEA INFORMATION TECHNOLOGY CORPORATION and that Respondent is the current registrant of the names. APRIL SEA INFORMATION TECHNOLOGY CORPORATION has verified that Respondent is bound by the APRIL SEA INFORMATION TECHNOLOGY CORPORATION 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 14, 2014, the Forum served the Vietnamese language Complaint and all Annexes, including a Vietnamese language Written Notice of the Complaint, setting a deadline of November 3, 2014 by which Respondent could file a Response to the Complaint, via email to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@mufico.com, postmaster@myfco.com. Also on October 14, 2014, the Vietnamese language Written Notice of the Complaint, notifying Respondent of the email 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 November 11, 2014, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed David E. Sorkin 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 and its subsidiaries provide credit-related products and services to banks, credit reporting agencies, and other entities worldwide. Through its myFICO consumer division, Complainant has sold over 23 million credit scores to consumers since launching the service in 2001. Complainant’s registered trademarks include MYFICO, registered in the United States in 2003. Complainant contends that the disputed domain names <mufico.com> and <myfco.com>, both of which were registered in 2004, are confusingly similar to its MYFICO mark; Complainant characterizes them as classic examples of “typosquatting.”
Complainant contends further that Respondent has no rights or legitimate interests in the disputed domain names, and that the domain names were registered and are being used in bad faith. In support thereof, Complainant alleges that Respondent has not been commonly known by the domain names; is not sponsored by nor legitimately affiliated with Complainant, and has not been given permission to use Complainant’s mark; registered the domain names significantly after Complainant’s first use of its mark; and is using the domain names to redirect Internet users to websites featuring generic links to third-party websites, some of which compete directly with Complainant’s business, presumably generating pay-per-click fees for Respondent. In addition, Complainant asserts that bad faith may be inferred from Respondent’s typosquatting behavior, and accuses Respondent of engaging in an ongoing pattern of bad faith domain name registrations, citing other domain names held by Respondent that appear to be instances of typosquatting. Complainant also alleges that the Whois records for the disputed domain names contain contact information that appears to be false or incomplete, and cites this as additional evidence of Respondent’s bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that the disputed domain names are confusingly similar to a mark in which Complainant has rights; that Respondent lacks rights or legitimate interests in respect of the disputed domain names; and that the disputed domain names were registered and have been used in bad faith.
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.”).
Preliminary Issue: Language of the Proceedings
The Panel notes that the Registration Agreement is written in Vietnamese, thereby making the language of the proceedings in Vietnamese. Pursuant to Rule 11(a), the Panel determines that the language requirement has been satisfied through the Vietnamese language Complaint and Commencement Notification, and, absent a Response, concludes that the remainder of the proceedings may be conducted in English. See, e.g., Personalizationmall.com v. Pham Dinh Nhut, FA 1577353 (Nat. Arb. Forum Oct. 21, 2014); Universal Protein Supplements Corp. d/b/a Universal Nutrition v. Pham Dinh Nhut, FA 1575330 (Nat. Arb. Forum Sept. 25, 2014); Chex Systems, Inc. v. Pham Dinh Nhut, FA 1548788 (Nat. Arb. Forum Apr. 26, 2014); Miller-Motte Business College, Inc. v. Pham Dinh Nhut, FA 1517897 (Nat. Arb. Forum Oct. 16, 2013); TaxHawk, Inc. v. Pham Dinh Nhut, FA 1431444 (Nat. Arb. Forum May 28, 2012).
The disputed domain names <mufico.com> and <myfco.com> are identical to Complainant’s registered MYFICO mark, but for the introduction of minor typographical errors and the addition of the “.com” top-level domain. These alterations do not diminish the similarity between the domain name and Complainant’s mark. See, e.g., Fair Isaac Corp. v. Zhichao Yang, FA 1582275 (Nat. Arb. Forum Oct. 28, 2014) (finding <fmyfico.com>, <myfic0.com>, <myficio.com>, <myficl.com>, <myfilco.com>, and <myfoico.com> confusingly similar to MYFICO). The Panel finds that the disputed domain names are confusingly similar to Complainant’s mark.
Under the Policy, the Complainant must first make a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain name, and then the burden shifts to the Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006).
The disputed domain names incorporate typographical variations of Complainant’s mark, and apparently their sole use has been in connection with websites containing advertising links, including links to competitors of Complainant. See, e.g., Fair Isaac Corp. v. Zhichao Yang, supra (finding lack of rights or legitimate interests in similar circumstances). Complainant has made a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain names, and Respondent has failed to come forward with any evidence of such rights or interests. Accordingly, the Panel finds that Complainant has sustained its burden of proving that Respondent lacks rights or legitimate interests in respect of the disputed domain names.
For the same reasons as those present in numerous other cases involving Respondent, including Personalizationmall.com, supra; Universal Protein Supplements Corp., supra; Chex Systems, Inc., supra; Miller-Motte Business College, Inc., supra; TaxHawk, Inc., supra; and others, the Panel finds that the disputed domain names were registered and have been used in bad faith.
Having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <mufico.com> and <myfco.com> domain names be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: November 12, 2014
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