Navy Federal Credit Union v. Privacy Protection
Claim Number: FA1501001601378
Complainant is Navy Federal Credit Union (“Complainant”), represented by John Gary Maynard, Virginia, USA. Respondent is Privacy Protection (“Respondent”), North Carolina, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <navyfederral.org>, registered with Uniregistrar Corp (R1981-LROR).
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on January 22, 2015; the National Arbitration Forum received payment on January 22, 2015.
On January 26, 2015, Uniregistrar Corp (R1981-LROR) confirmed by e-mail to the National Arbitration Forum that the <navyfederral.org> domain name is registered with Uniregistrar Corp (R1981-LROR) and that Respondent is the current registrant of the name. Uniregistrar Corp (R1981-LROR) has verified that Respondent is bound by the Uniregistrar Corp (R1981-LROR) 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 January 27, 2015, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 17, 2015 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@navyfederral.org. Also on January 27, 2015, 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 February 23, 2015, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Sandra J. Franklin 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
1. Respondent’s <navyfederral.org> domain name is confusingly similar to Complainant’s NAVY FEDERAL mark.
2. Respondent does not have any rights or legitimate interests in the <navyfederral.org> domain name.
3. Respondent registered and uses the <navyfederral.org> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant owns the NAVY FEDERAL mark through registration with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 2,994,078, registered Sept. 13, 2005). Complainant uses the NAVY FEDERAL mark in connection with its financial institution that provides financial services to the military and their families.
Respondent registered the <navyfederral.org> domain name on Dec. 6, 2012, and uses it to divert Internet users to Respondent’s website featuring a search engine and links related to Complainant’s business.
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 Panel finds that Complainant’s registration of the NAVY FEDERAL mark with the USPTO sufficiently demonstrates Complainant’s rights in the mark for purposes of Policy ¶ 4(a)(i). See Expedia, Inc. v. Emmerson, FA 873346 (Nat. Arb. Forum Feb. 9, 2007) (“Complainant’s trademark registrations with the USPTO adequately demonstrate its rights in the [EXPEDIA] mark pursuant to Policy ¶ 4(a)(i).”).
Respondent’s <navyfederral.org> domain name is a simple misspelling Complainant’s NAVY FEDERAL mark and Respondent adds the generic top-level domain “.org.” Prior panels have found that merely adding a letter to the incorporated mark or misspelling the mark does nothing to distinguish the disputed domain name from the complainant’s registered mark. See Google, Inc. v. DktBot.org, FA 286993 (Nat. Arb. Forum Aug. 4, 2004) (“The mere addition of a single letter to the complainant’s mark does not remove the respondent’s domain names from the realm of confusing similarity in relation to the complainant’s mark pursuant to Policy ¶ 4(a)(i).”). Additionally, prior panels have concluded that inserting a gTLD to an otherwise incorporated mark does not sufficiently distinguish the disputed domain name from the registered mark. See Nev. State Bank v. Modern Ltd. – Cayman Web Dev., FA 204063 (Nat. Arb. Forum Dec. 6, 2003) (“It has been established that the addition of a generic top-level domain is irrelevant when considering whether a domain name is identical or confusingly similar under the Policy.”). Accordingly, the Panel finds that Respondent’s <navyfederral.org> domain name is confusing similarity to Complainant’s NAVY FEDERAL 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 Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name); see also AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006) (“Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.”).
Complainant argues that Respondent has no rights or legitimate interests in the disputed domain name and is not commonly known by the disputed domain name. The WHOIS information for the <navyfederral.org> domain name lists “Privacy Protection” as the registrant, which does not reflect that Respondent is commonly known by the disputed domain name. Further, Complainant has never authorized Respondent to use its NAVY FEDERAL trademark. The Panel thus finds that Respondent has no rights to the disputed domain name under Policy ¶ 4(c)(ii). See IndyMac Bank F.S.B. v. Eshback, FA 830934 (Nat. Arb. Forum Dec. 7, 2006) (finding that the respondent failed to establish rights and legitimate interests in the <emitmortgage.com> domain name as the respondent was not authorized to register domain names featuring the complainant’s mark and failed to submit evidence that it is commonly known by the domain name).
Complainant asserts that Respondent’s lack of rights or legitimate interests in the <navyfederral.org> domain name is evident by Respondent’s failure to use the disputed domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use. The Panel notes that Respondent’s disputed domain name resolves to a website featuring a search engine and related links such as “USAA” and “Platinum Federal Credit Union,” Complainant’s competitors. This demonstrates that Respondent is not using the disputed domain name in connection with a bona fide offering of goods or services. See Meyerson v. Speedy Web, FA 960409 (Nat. Arb. Forum May 25, 2007) (finding that where a respondent has failed to offer any goods or services on its website other than links to a variety of third-party websites, it was not using a domain name in connection with 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)). Thus, the Panel finds that Respondent has no rights or legitimate interests in the disputed domain name under Policy ¶ 4(c)(i) Policy ¶ 4(c)(iii).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant contends that Respondent has engaged in bad faith registration and use of the <navyfederral.org> domain name by diverting Internet customers seeking Complainant’s website to other financial institutions. The Panel agrees and finds bad faith registration and use under Policy ¶ 4(b)(iii). See Univ. of Texas Sys. v. Smith, FA 1195696 (Nat. Arb. Forum July 7, 2008) (finding that using the resolving website to divert Internet users to the complainant’s competitors constituted bad faith registration and use under Policy ¶ 4(b)(iii)).
Respondent intentionally attracts, for commercial gain, Internet users to its website by creating a likelihood of confusion with the Complainant’s mark. This constitutes bad faith registration and use under Policy ¶ 4(a)(iv). See Zee TV USA, Inc. v. Siddiqi, FA 721969 (Nat. Arb. Forum July 18, 2006) (finding that the respondent engaged in bad faith registration and use by using a domain name that was confusingly similar to the complainant’s mark to offer links to third-party websites that offered services similar to those offered by the complainant).
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 <navyfederral.org> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: February 26, 2015
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