Navy Federal Credit Union v. Terry Senn
Claim Number: FA1606001677923
Complainant is Navy Federal Credit Union (“Complainant”), represented by John Gary Maynard, Virginia, USA. Respondent is Terry Senn (“Respondent”), Massachusetts, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <navyfedearl.org>, 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 Forum electronically on June 3, 2016; the Forum received payment on June 3, 2016.
On June 3, 2016, GoDaddy.com, LLC; confirmed by e-mail to the Forum that the <navyfedearl.org> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. 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 June 6, 2016, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 27, 2016 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@navyfedearl.org. Also on June 6, 2016, 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 June 29, 2016, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Paul M. DeCicco 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.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant contends as follows:
Complainant has established rights to the NAVY FEDERAL mark through registration with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 2,994,078, registered September 13, 2005).
Respondent’s <navyfedearl.org> domain name is confusingly similar to Complainant’s NAVY FEDERAL mark. The disputed domain name incorporates the mark with the common typographical error of transposing the “a” and the “r” in “federal” while removing space between the words of the mark and affixing the generic top level domain (“gTLD”) “.org.”
Respondent does not have rights or legitimate interests in the <navyfedearl.org> domain name. Respondent is not commonly known by the disputed domain name or authorized to use the NAVY FEDERAL mark. The <navyfedearl.org> domain name currently resolves to an inactive webpage which does not constitute a bona fide offering of goods and services or a legitimate noncommercial fair use.
Respondent has registered and is using the disputed domain name in bad faith. Respondent has not made active use of the <navyfedearl.org> domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has rights in the NAVY FEDERAL mark through its registration of such mark with the USPTO.
Respondent is not affiliated with Complainant and had not been authorized to use Complainant’s trademark in any capacity.
Respondent registered the at‑issue domain name after Complainant acquired rights in its relevant trademarks.
Respondent currently uses the at-issue domain name to address an inactive webpage.
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 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 (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 establishes its rights in the NAVY FEDERAL mark through its registration with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 2,994,078, registered September 13, 2005). See Paisley Park Enters. v. Lawson, FA 384834 (Nat. Arb. Forum Feb. 1, 2005) (finding that the complainant had established rights in the PAISLEY PARK mark under Policy ¶ 4(a)(i) through registration of the mark with the USPTO).
The at-issue domain name contains an obvious misspelling of Complainant’s NAVY FEDERAL trademark less its space where the letter “a” and “r” are transposed. The top level domain name “.org” is appended to the malformed trademark to complete the at-issue domain name. The trivial differences between the Complainant’s trademark and Respondent’s domain name are insufficient to distinguish one from the other for the purpose of Policy ¶ 4(a)(i). Therefore the Panel finds that the <navyfedearl.org> domain name is confusingly similar to Complainant’s NAVY FEDERAL trademark. See Capital One Financial Corp. v. Huang Li Technology Corp c/o Dynadot, FA 1620197 (Forum June 16, 2015) (finding confusing similarity where the respondent misspelled the word “bank” by transposing the letters “a” and “n,” attached the gTLD “.com,” and eliminated spacing with respect to the CAPITAL ONE BANK mark to create the <capitalonebnak.com> 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, absent evidence of Policy ¶4(c) circumstances Complainant’s prima facie showing acts conclusively.
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 at-issue domain name.
WHOIS information for the at-issue domain name lists “Terry Senn” as the domain name’s registrant and there is nothing in the record that otherwise suggests Respondent is commonly known by the <navyfedearl.org> domain name. Therefore, the Panel finds that Respondent is not commonly known by the at-issue domain name pursuant to Policy ¶ 4(c)(ii). See Compagnie de Saint Gobain v. Com-Union Corp., D2000-0020 (WIPO Mar. 14, 2000) (finding no rights or legitimate interest where the respondent was not commonly known by the mark and never applied for a license or permission from the complainant to use the trademarked name).
Respondent uses the at-issue domain name to address an inactive webpage. Using the confusingly similar domain name in this manner is neither a bona fide offering of goods and services under Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See Hewlett-Packard Co. v. Shemesh, FA 434145 (Forum Apr. 20, 2005) (finding that a respondent’s non-use of a domain name that is identical to a complainant’s mark is not 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 under Policy ¶4(a)(ii) and conclusively demonstrates Respondent’s lack of rights and lack of interests in respect of the at-issue domain name.
The domain name was registered and used in bad faith. As discussed below, Policy ¶4(b) specific bad faith circumstances are present which compel the Panel to conclude that Respondent acted in bad faith pursuant to paragraph 4(a)(iii) of the Policy.
Respondent has inactively held the at-issue domain name. Under the circumstance and absent contrary evidence from the Respondent or elsewhere, Respondent’s failure to use the confusingly similar domain name constitutes non-exclusive evidence of bad faith under Policy ¶ 4(a)(iii). See Am. Broad. Cos., Inc. v. Sech, FA 893427 (Nat. Arb. Forum Feb. 28, 2007) concluded that the respondent’s failure to make active use of its domain name in the three months after its registration indicated that the respondent registered the disputed domain name in bad faith.
Furthermore, Respondent’s registration and use of the <navyfedearl.org> 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 sets itself up to capitalize on the mistakes of Internet user who accidentally transpose the letters “a” and “r” when trying to enter Complainant’s trademark into a browser or email address. The fact that the domain name is currently inactive is only because of Respondent’s choice to make it so and is immaterial to Respondent’s obvious intent to, at some point in time, improperly benefit via its <navyfedearl.org> domain name. 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)).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <navyfedearl.org> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: June 30, 2016
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