West Coast University, Inc. v. Adam Smith / West Coast University (Los Angeles)LLC
Claim Number: FA1705001730442
Complainant is West Coast University, Inc. (“Complainant”), represented by Michelle Hon Donovan of Duane Morris, LLP., California, USA. Respondent is Adam Smith / West Coast University, LLC., (“Respondent”), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <wcu-la.us>, registered with GoDaddy.com, LLC.
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.
Kenneth L. Port as Panelist.
Complainant submitted a Complaint to the Forum electronically on May 5, 2017; the Forum received payment on May 5, 2017.
On May 5, 2017, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <wcu-la.us> 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 the U.S. Department of Commerce’s usTLD Dispute Resolution Policy (the “Policy”).
On May 15, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 5, 2017 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@wcu-la.us. Also on May 15, 2017, 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 8.2017, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Kenneth L. Port 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 to the usTLD Dispute Resolution Policy (“Rules”). Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the usTLD Policy, usTLD 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, West Coast University, Inc. uses the WEST COAST UNIVERSITY mark to provide courses and training at the undergraduate and professional levels. Complainant has rights in the mark based upon registration with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 3,232,786, registered April 24, 2007). See Compl., at Attached Annex 2. Respondent’s <wcu-la.us> domain name is confusingly similar to Complainant’s mark as it merely combines a common abbreviation for Complainant’s mark “WCU”, a common abbreviation for Complainant’s Los Angeles school location “LA”, and a country code top-level domain (“ccTLD”) “.us.”
Respondent does not have rights or legitimate interests in the <wcu-la.us> domain name. Respondent is not commonly known by the disputed domain name and Complainant has not granted respondent permission or license to use the WEST COAST UNIVERSITY mark for any purpose. Respondent is not using the disputed domain name to make a bona fide offering of goods or services or for a legitimate non-commercial or fair use. Rather, Respondent uses the domain name to trade on the goodwill associated with Complainant’s service marks and trade name, and mislead the public into believing Respondent is a real school. By misleading Internet users, Respondent presumably attempts to phish for personal and financial information by collecting this information from applicants. Alternatively, even if Respondent’s offering of educational services is legitimate, offering competing services still fails to make a bona fide offering of goods or services or legitimate noncommercial or fair use. See Compl., at Attached Annexes 9-11.
Respondent has registered and used the <wcu-la.us> domain name in bad faith. Respondent intentionally attempts to attract, for commercial gain, users to its website by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website and the links contained therein. Respondent either commercially benefits from offering competing educational services, or by fraudulently phishing for personal or financial information. See Compl., at Attached Annexes 9-11. Further, Respondent has previously registered multiple infringing domain names using Complainant’s trademark in bad faith. See Compl., at Attached Annexes 17 & 18 (WHOIS information for previously registered domain names registered by Respondent).
B. Respondent
Respondent failed to submit a Response in this proceeding. The disputed domain name was created on August 11, 2008.
The Panel finds that the disputed domain name is confusingly similar to Complainant’s trademark; that Respondent has no rights or legitimate interests in or to the disputed domain name; and that Respondent has engaged in bad faith use and registration of the disputed domain name.
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 or is being used in bad faith.
Given the similarity between the Uniform Domain Name Dispute Resoloution Policy (“UDRP”) and the usTLD Policy, the Panel will draw upon UDRP precendent as applicable in rendering its decision.
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 Panel finds that the disputed domain name is confusingly similar to Complainant’s valid and subsisting trademark. Complainant has adequately pled its rights and interests to the mark WEST COAST UNIVERSITY of which the disputed name, <wcu-la.us>, is an abbreviation. Respondent arrives at the disputed domain name by using this abbreviation, appending a generic geographic location where Complainant is found, and appending generic country code, “.us”. This is insufficient to distinguish the disputed domain name from Complainant’s trademark.
As such, the Panel finds that the dispute domain name is confusingly similar to Complainant’s trademark.
The Panel further finds that Respondent has no rights or legitimate interests in or to the disputed domain name. Respondent has no license or permission to registered the disputed domain name. Respondent is not commonly known by the disputed domain name. The WHOIS information of record identifies Respondent as <wcu-la.us>. The record is devoid of any evidence to show that there is a genuine registrant. As such, the Panel finds that Respondent is not commonly known by the disputed domain name.
The Panel further finds that Respondent’s lack of rights or legitimate interests in the disputed domain name is evinced by the failure to use the name for bona fide offering of goods or services or legitimate noncommercial or fair use. Complainant contends that Respondent’s sole purpose for registering and using the <wcu-la.us> domain name is to trade on the goodwill associated with Complainant’s service marks and trade name, and mislead the public into believing Respondent is a real school. Using a mark to trade off on the reputation of a complainant is not a bona fide offering of goods or services. The Panel, therefore, finds that Respondent fails to use the domain name for bona fide offering of goods or services or legitimate noncommercial or fair use.
Complainant also argues that Respondent’s attempt of gathering personal and financial information from Internet users is a fraudulent phishing attempt. A finding of a respondent engaging in a fraudulent phishing scheme can further indicate a lack any rights or legitimate interests in the disputed domain name under Policy ¶¶ 4(c)(i) & (iii); however, Complainant does not provide any screenshot or alternative evidence to support the phishing allegation. As ushc, the Panel does not find evidence in the record to support the claim that Respondent is engaged in an illegal phishing attempt.
Alternatively, Complainant argues that if Respondent does not use the <wcu-la.us> domain name to fraudulently phish for information, then Respondent uses the disputed domain name to offer services in direct competition with Complainant. Using a confusingly similar domain name that resolves in a webpage that directly competes with Complainant fails to provide a bona fide offering of goods or services. See Upwork Global Inc. v. Shoaib Malik, FA 1654759 (Forum February 3, 2016) (finding that Complainant provides freelance talent services, and that Respondent competes with Complainant by promoting freelance talent services through the disputed domain’s resolving webpage, which is neither a bona fide offering of goods or services, nor is it a legitimate noncommercial or fair use). The screenshots offered by Complainant appear to show that Respondent uses the disputed domain name to offer educational services similar to that of Complainant. See Compl., at Attached Annexes 9-11.
Accordingly, the Panel finds that Respondent has failed to provide a bona fide offering of goods or services under Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use per Policy ¶ 4(c)(iii) and, as such, has no rights or legitimate interests in or to the disputed domain name.
The Panel also finds that Respondent has engaged in bad faith use and registration of the disputed domain name. This is evinced by Respondent’s propensity for registering domain names using Complainant’s own mark. A complainant may use serial cybersquatting to evince bad faith under Policy ¶ 4(b)(ii). See Fandango, LLC v. 21562719 Ont Ltd, FA1209001464081 (Forum November 2, 2012) (“Respondent’s past conduct and UDRP history establishes a pattern of registered domain names in bad faith under Policy ¶ 4(b)(ii).”). Complainant provides the WHOIS registration information for two other webpages hosted by Respondent, <westcoastuniversity.asia> and <westcoastuniversity.us>. See Compl., at Attached Annexes 17 & 18. Accordingly, the Panel finds that Respondent registered the disputed domain name in bad faith based on the registration of multiple confusingly similar domain names.
Next, Complainant asserts that Respondent uses the disputed domain name to trade off on the fame and notoriety of Complainant’s mark, for commercial gain, by creating confusion as to the source sponsorship, affiliation, or endorsement of the disputed domain name. Commercially benefiting by using a confusingly similar domain name can demonstrate bad faith under Policy ¶ 4(b)(iv). See H-D Michigan, Inc. v. Petersons Auto., FA 135608 (ForumJan. 8, 2003) (finding that the disputed domain name was registered and used in bad faith pursuant to Policy ¶ 4(b)(iv) through the respondent’s registration and use of the infringing domain name to intentionally attempt to attract Internet users to its fraudulent website by using the complainant’s famous marks and likeness). The Complainant’s Attached Annexes 9-11 show the resolving website of the disputed domain name attempting to solicit services related to Complainant’s business. Using a confusingly similar domain name to offer competing services can also demonstrate bad faith registration and use. See DatingDirect.com Ltd. v. Aston, FA 593977 (ForumDec. 28, 2005) (“Respondent is appropriating Complainant’s mark to divert Complainant’s customers to Respondent’s competing business. The Panel finds this diversion is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iii).”). The Panel finds that such behavior is an attempt to pass off Respondent as Complainant for commercial gain and finds that Respondent registered and uses the <wcu-la.us> domain name in bad faith under Policy ¶ 4(b)(iv).
Complainant argues that Respondent engages in a phishing scheme to obtain personal or financial information; however, for the same reason as stated above, namely, the lack of evidence to support this claim, the Panel dismisses this claim.
Given the totality of the circumstances, the Panel further finds that Complainant’s interests in the mark WEST COAST UNIVERSITY pre-dated Respondent’s registration of the disputed domain name. That is, the Panel finds that Respondent had actual prior knowledge of Complainant’s trademark and proceeded to register the disputed domain name anyway.
Therefore, the Panel finds that Respondent has engaged in bad faith use and registration of the disputed domain name.
Having established all three elements required under the usTLD, the Panel concludes that relief shall be granted.
Accordingly, it is Ordered that the <wcu-la.us> domain name be TRANSFERRED from Respondent to Complainant.
Kenneth L. Port, Panelist
Dated: June 9, 2017
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