Charles Schwab & Co., Inc. v. Micheal Ard
Claim Number: FA1707001741975
Complainant is Charles Schwab & Co., Inc. (“Complainant”), represented by Laura M. Franco of Winston & Strawn LLP, California, USA. Respondent is Micheal Ard (“Respondent”), Texas, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <charlesschwabloans.com>, registered with Name.com, Inc..
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.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on July 27, 2017; the Forum received payment on July 27, 2017.
On July 28, 2017, Name.com, Inc. confirmed by e-mail to the Forum that the <charlesschwabloans.com> domain name is registered with Name.com, Inc. and that Respondent is the current registrant of the name. Name.com, Inc. has verified that Respondent is bound by the Name.com, 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 July 31, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 21, 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@charlesschwabloans.com. Also on July 31, 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 August 24, 2017, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Richard Hill 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 states that it is one of the leading financial services firms in the country. Complainant or its affiliates manage over $2.38 trillion in client assets and services, 9.3 million brokerage accounts, 1.4 million corporate retirement plan participants, and nearly 1 million banking accounts. It serves 7000 independent registered investment advisors, and operates over 300 branches nationwide with over 1200 financial consultants. In connection with this business, Complainant uses the CHARLES SCHWAB mark to promote its goods and services. Complainant has rights in the mark based upon registration in the United States in 2001.
Complainant alleges that the disputed domain name is confusingly similar to its mark as it appends the descriptive term “loans” as well as the “.com” generic top-level-domain (“gTLD”) to Complainant’s wholly incorporated mark.
According to Complainant, Respondent lacks rights and legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name and Complainant has not authorized Respondent’s use of the CHARLES SCHWAB mark. Further, Respondent failed to use the disputed domain name in connection with a bona fide offer of goods or services or for a legitimate noncommercial or otherwise fair use. Instead, Respondent uses the disputed domain name in an attempt to pass off as Complainant and profit from the goodwill and fame built up in Complainant’s mark to offer competing services. Complainant cites UDRP precedents to support its position.
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith. Respondent disrupts Complainant’s business. Respondent uses the domain name to intentionally attract Internet users—otherwise seeking Complainant—to Respondent’s website for commercial gain. Respondent had constructive knowledge of Complainant’s CHARLES SCHWAB mark. Complainant cites UDRP precedents to support its position.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns the mark CHARLES SCHWAB, with rights dating back to at least 2001.
The disputed domain name was registered in 2017.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
Respondent uses the disputed domain to pass off as Complainant and offer competing services.
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 disputed domain name is confusingly similar to Complainant’s mark as it appends the descriptive term “loans” as well as the “.com” gTLD to Complainant’s wholly incorporated mark. The addition of a descriptive term and a gTLD to a complainant’s mark is insufficient to differentiate a disputed domain name from said mark per Policy ¶ 4(a)(i). See Gillette Co. v. RFK Assocs., FA 492867 (Forum July 28, 2005) (finding that the additions of the term “batteries,” which described the complainant’s products, and the generic top-level domain “.com” were insufficient to distinguish the respondent’s <duracellbatteries.com> from the complainant’s DURACELL mark). As such, the Panel finds that the disputed domain name <charlesschwabloans.com> is confusingly similar, in the sense of the Policy, to Complainant’s CHARLES SCHWAB mark.
Complainant has not licensed or otherwise authorized Respondent to use the CHARLES SCHWAB mark. Absent a response, WHOIS information can substantiate a finding that a respondent is not commonly known by a disputed domain name; likewise, lack of authorization to use a mark further evidences that a respondent is not commonly known by a domain name utilizing said mark per Policy ¶ 4(c)(ii). See Chevron Intellectual Property LLC v. Fred Wallace, FA1506001626022 (Forum July 27, 2015) (finding that the respondent was not commonly known by the <chevron-europe.com> domain name under Policy ¶ 4(c)(ii), as the WHOIS information named “Fred Wallace” as registrant of the disputed domain name); see also Navistar International Corporation v. N Rahmany, FA1505001620789 (Forum June 8, 2015) (finding that the respondent was not commonly known by the disputed domain name where the complainant had never authorized the respondent to incorporate its NAVISTAR mark in any domain name registration). The WHOIS information of record names “Micheal Ard” as the registrant of the disputed domain name. The Panel therefore finds that Respondent is not commonly known by the disputed domain name.
Respondent failed to use the disputed domain name in connection with a bona fide offer of goods or services or for a legitimate noncommercial or otherwise fair use. Instead, Respondent uses the disputed domain name in an attempt to pass off as Complainant and profit from the goodwill and fame built up in Complainant’s mark by offering competing services. Use of a domain name to trade off on the goodwill associated with a complainant’s mark that said domain name contains demonstrates a lack of rights and legitimate interests per Policy ¶¶ 4(c)(i) & (iii). See Am. Int’l Group, Inc. v. Busby, FA 156251 (Forum May 30, 2003) (finding that the respondent attempts to pass itself off as the complainant online, which is blatant unauthorized use of the complainant’s mark and is evidence that the respondent has no rights or legitimate interests in the disputed domain name); see also General Motors LLC v. MIKE LEE, FA 1659965 (Forum Mar. 10, 2016) (finding that “use of a domain to sell products and/or services that compete directly with a complainant’s business does not constitute 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).”). As such, the Panel finds find that Respondent lacks rights and legitimate interests in the disputed domain name.
Respondent (who did not reply to Complainant’s contentions) has not presented any plausible explanation for its use of Complainant’s mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain name.
Indeed, as already noted, Respondent uses the disputed domain name to intentionally attract Internet users—otherwise seeking Complainant—to Respondent’s website for commercial gain through Respondent’s passing off behavior and its offering of services that compete with those of Complainant. Use of a disputed domain name to pass off as a complainant and trade on the goodwill associated with said complainant’s mark evinces a finding of bad faith per Policy ¶ 4(b)(iv). See Xylem Inc. and Xylem IP Holdings LLC v. YinSi BaoHu YiKaiQi, FA1504001612750 (Forum May 13, 2015) (“The Panel agrees that Respondent’s use of the website to display products similar to Complainant’s, imputes intent to attract Internet users for commercial gain, and finds bad faith per Policy ¶ 4(b)(iv).”). Thus the Panel finds that Respondent used the disputed domain name in bad faith per Policy ¶ 4(b)(iv).
Further, Respondent registered and uses the disputed domain name in bad faith as Respondent disrupts Complainant’s business through competition generated from the disputed domain name. Use of a confusingly similar domain name to disrupt a trademark owner’s business evinces a finding of bad faith per Policy ¶ 4(b)(iii). See Fitness International, LLC v. ALISTAIR SWODECK / VICTOR AND MURRAY, FA1506001623644 (Forum July 9, 2015) (“Respondent uses the at-issue domain name to operate a website that purports to offer health club related services such as fitness experts, fitness models, fitness venues, exercise programs, and personal training, all of which are the exact services offered by Complainant. Doing so causes customer confusion, disrupts Complainant’s business, and demonstrates Respondent’s bad faith registration and use of the domain name pursuant to Policy ¶ 4(b)(iii).”). The Panel therefore finds that Respondent disrupted Complainant’s business and acted in bad faith per Policy ¶ 4(b)(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 <charlesschwabloans.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: August 24, 2017
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