DECISION

 

EMVCO, LLC c/o Visa Holdings v. LEE JACKSON / VISA EMV U.S.A. INC

Claim Number: FA1511001649795

 

PARTIES

Complainant is EMVCO, LLC c/o Visa Holdings ("Complainant"), represented by Patchen M. Haggerty of Perkins Coie LLP, Washington, United States. Respondent is LEE JACKSON / VISA EMV U.S.A. INC ("Respondent"), United States.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <emvamerica.com>, registered with eNom, 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.

 

David E. Sorkin as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to the Forum electronically on November 24, 2015; the Forum received payment on November 25, 2015.

 

On December 1, 2015, eNom, Inc. confirmed by email to the Forum that the <emvamerica.com> domain name is registered with eNom, Inc. and that Respondent is the current registrant of the name. eNom, Inc. has verified that Respondent is bound by the eNom, 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 December 3, 2015, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 23, 2015 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@emvamerica.com. Also on December 3, 2015, the 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 Forum transmitted to the parties a Notification of Respondent Default.

 

On December 29, 2015, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed David E. Sorkin 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.

 

RELIEF SOUGHT

Complainant requests that the domain name be transferred from Respondent to Complainant.

 

PARTIES' CONTENTIONS

A. Complainant

Complainant has used the EMV trademark in connection with secure payment transactions continuously since 1999. The mark refers to Complainant's founding member organizations, Europay, MasterCard, and Visa, and is the subject of numerous trademark registrations in the United States and other countries.

 

Complainant contends that the disputed domain name <emvamerica.com>, registered by Respondent through a privacy registration service in May 2015, is confusingly similar to its EMV mark. Complainant contends further that Respondent has no rights or legitimate interests in the disputed domain name, and that the disputed domain name was registered and is being used in bad faith. In support thereof, Complainant states that Respondent is not commonly known by the domain name; that Respondent has not been authorized to use Complainant's mark; and that Respondent registered and is using the domain name in connection with a website that provides goods and services in competition with those offered under Complainant's mark, falsely suggesting an affiliation with or certification by Complainant.

 

B. Respondent

Respondent failed to submit a Response in this proceeding.

 

FINDINGS

The Panel finds that the disputed domain name is confusingly similar to a mark in which Complainant has rights; that Respondent lacks rights or legitimate interests in respect of the disputed domain name; and that the disputed domain name was registered and has been used in bad faith.

 

DISCUSSION

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.").

 

Identical and/or Confusingly Similar

 

The disputed domain name is comprised of Complainant's registered EMV mark, with the geographic term "AMERICA" and the ".com" top-level domain suffix appended thereto. These modifications do not diminish the similarity between the domain name and Complainant's mark. See, e.g., EMVCO, LLC c/o Visa Holdings v. Joe Hall / United Team, FA 1630199 (Forum Sept. 2, 2015) (finding <emvglobal.com> confusingly similar to EMV); America Online, Inc. v. David Clemett a/k/a D Clemett, FA 157297 (Nat. Arb. Forum June 25, 2005) (finding <aolamerica.com> confusingly similar to AOL). The Panel therefore considers the disputed domain name to be confusingly similar to a mark in which Complainant has rights.

 

Rights or Legitimate Interests

 

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 name combines Complainant's certification mark with a broad geographic term. It was registered through a privacy service to conceal the registrant's identity, and the contact information that was provided to the registrar was likely fictitious. The only apparent use for the disputed domain name has been for a website promoting goods or services that compete directly with those offered by Complainant or its licensees. Such use does not give rise to rights or legitimate interests under the Policy. See, e.g., EMVCO, LLC c/o Visa Holdings v. Sarah Rosenzweig / GetMyFreeEMV.com, FA 1647292 (Forum Dec. 28, 2015); EMVCO, LLC c/o Visa Holdings v. Joe Hall / United Team, supra.

 

Complainant has made a prima facie case that Respondent lacks rights and legitimate interests in the domain name, 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 name.

 

Registration and Use in Bad Faith

 

Finally, Complainant must show that the disputed domain name was registered and has been used in bad faith. Under paragraph 4(b)(iii) of the Policy, bad faith may be shown by evidence that Respondent registered the disputed domain name "primarily for the purpose of disrupting the business of a competitor." Under paragraph 4(b)(iv), bad faith may be shown by evidence that "by using the domain name, [Respondent] intentionally attempted to attract, for commercial gain, Internet users to [Respondent's] web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of [Respondent's] web site or location or of a product or service on [Respondent's] web site or location."

 

Respondent has used the disputed domain name to promote goods or services that compete directly with those offered by Complainant or its licensees. Under the circumstances, the Panel infers that Respondent registered the domain name with this use in mind. See EMVCO, LLC c/o Visa Holdings v. Sarah Rosenzweig / GetMyFreeEMV.com, supra (finding bad faith registration and use under similar circumstances). The Panel finds that the disputed domain name was registered and has been used in bad faith.

 

DECISION

Having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.

 

Accordingly, it is Ordered that the <emvamerica.com> domain name be TRANSFERRED from Respondent to Complainant.

 

 

David E. Sorkin, Panelist

Dated: December 29, 2015

 

 

 

 

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