House Advantage, LLC v. NAHID ABOUTALEBPOUR
Claim Number: FA1708001746279
Complainant is House Advantage, LLC (“Complainant”), represented by Nathaniel Edwards of Lewis Roca Rothgerber LLP, Arizona, USA. Respondent is NAHID ABOUTALEBPOUR (“Respondent”), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is/are <housadv.com>, registered with eNom, 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.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on August 25, 2017; the Forum received payment on August 25, 2017.
On Aug 28, 2017, eNom, LLC confirmed by e-mail to the Forum that the <housadv.com> domain name is registered with eNom, LLC and that Respondent is the current registrant of the name. eNom, LLC has verified that Respondent is bound by the eNom, 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 September 5, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 25, 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@housadv.com. Also on September 5, 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 September 26, 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 provides a wide variety of business, marketing, and technology products for U.S. and Asian casino gaming industries. In connection with this business, Complainant uses the HOUSE ADVANTAGE mark to market its goods and services. Complainant has rights to the mark by virtue of its registration in the United States in 2013.
According to Complainant, the disputed domain name is confusingly similar to its mark, as the disputed domain name consists entirely of the mark, merely omitting the space in the mark and the letter “e” in “house,” abbreviating the word “advantage” to “adv,” and appending the generic top-level domain (“gTLD”) “.com.” Complainant cites UDRP precedents to support its position.
Complainant alleges that Respondent has no rights or legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name, nor has Complainant authorized or licensed Respondent to use the HOUSE ADVANTAGE mark for any reason. Respondent’s use of the disputed domain name does not amount to a bona fide offering of goods or services or a legitimate noncommercial or fair use. Rather, Respondent uses the disputed domain name within an email address to pass itself off as the CEO of Complainant in a fraudulent scheme to solicit money transfers. Complainant cites UDRP precedents to support its position.
Further, says Complainant, Respondent has registered and used the disputed domain name in bad faith. Respondent registered the disputed domain name and reproduced Complainant’s legitimate website at the resolving website in an attempt to pass off as Complainant and create confusion as to the source of Respondent’s online activities. Respondent’s typosquatting behavior is further evidence of its bad faith. Additionally, Respondent’s use of the domain name to defraud Complainant is evidence of its bad faith. Further, Respondent’s use of a privacy service gives rise to a presumption of bad faith. Finally, it is clear Respondent had actual knowledge of Complainant and its rights in the HOUSE ADVANTAGE mark at the time it registered and subsequently used the disputed domain name. Complainant cites UDRP precedents to support its position.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns the mark HOUSE ADVANTAGE, with rights dating back to at least 2013.
The disputed domain name was registered in 2017.
Complainant has not licensed or otherwise authorized Respondent to use its marks.
The disputed domain name resolves to a web page that reproduces Complainant’s home page; further Respondent used the disputed domain name as part of a fraudulent phishing scheme.
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.”).
Complainant alleges that the disputed domain name is confusingly similar to Complainant’s mark, as the disputed domain name consists entirely of the mark, merely omitting the space in the mark and the letter “e” in “house,” abbreviating the word “advantage” to “adv,” and appending the gTLD “.com.”
Respondent (who did not reply to Complainant’s contentions) has not contested these allegations. 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.
According to the case law of the UDRP, omission of spaces in a mark and addition of a gTLD are irrelevant changes in a Policy ¶ 4(a)(i) analysis. See Health Republic Insurance Company v. Gustavo Winchester, FA 1622089 (Forum July 7, 2015) (finding, “Domain name syntax requires TLDs. Domain name syntax prohibits spaces. Therefore, omitted spacing and adding a TLD must be ignored when performing a Policy ¶4(a)(i) analysis.”). Abbreviation of a term in a mark likewise does not distinguish a domain name form a mark per Policy ¶ 4(a)(i). See Black Hills Ammunition, Inc. v. ICS INC, FA 1541572 (Forum Mar. 4, 2014) (finding that the <black-hillsammo.com> domain name is confusingly similar to the BLACK HILLS AMMUNITION mark under Policy ¶ 4(a)(i).). Similarly, omission of a single letter from a mark does not overcome a finding of confusing similarity. See Hallelujah Acres, Inc. v. Manila Indus., Inc., FA 805029 (Forum Nov. 15, 2006) (holding that the respondent’s <hacrs.com> domain name was confusingly similar to the complainant’s HACRES mark because it omitted the letter “e” from the mark and added the generic top-level domain “.com”).
The panel therefore finds the disputed domain name to be confusingly similar to the HOUSE ADVANTAGE mark per Policy ¶ 4(a)(i).
Complainant has not authorized Respondent to use the HOUSE ADVANTAGE mark in any way. Respondent has no rights or legitimate interests in the disputed domain name as Respondent is not commonly known by the disputed domain name. Where a response is lacking, WHOIS information can support a finding that the respondent is not commonly known by the disputed domain name, especially where a privacy service has been engaged. See State Farm Mutual Automobile Insurance Company v. Dale Anderson, FA1504001613011 (Forum May 21, 2015) (concluding that because the WHOIS record lists “Dale Anderson” as the registrant of the disputed domain name, the respondent was not commonly known by the <statefarmforum.com> domain name pursuant to Policy ¶ 4(c)(ii)). The Panel notes that the WHOIS information of record identifies Respondent as “NAHID ABOUTALEBPOUR.” The Panel therefore finds under Policy ¶ 4(c)(ii) that Respondent has not been commonly known by the disputed domain name.
Respondent’s lack of rights or legitimate interests in the disputed domain name is evinced by Respondent’s failure to use the disputed domain name for a bona fide offering of goods or services or legitimate noncommercial or fair use. Rather, the Respondent used the disputed domain name as part of a fraudulent phishing scheme in which it impersonated an executive of Complainant in order to initiate money transfers from Complainant’s employees. Specifically, Complainant provides printouts of emails in which “jon.wolfe@houseadv.com,” purports to be Complainant’s CEO John Wolfe and solicits a wire transfer of $58,000 from another executive of Complainant. The email contains an illicit copy of Mr. Wolfe’s actual email signature block.
Use of a disputed domain name to pass off as an employee or executive of a complainant by means of an email address hosted at the disputed domain name is not a use indicative of rights or legitimate interests under Policy ¶¶ 4(c)(i) or (iii). See Abbvie, Inc. v. James Bulow, FA 1701075 (Forum, Nov. 30, 2016) (finding Respondent’s use of the disputed domain name to pose as Complainant’s CEO by means of an email address at the confusingly similar domain name in an attempt to determine Complainant’s ability to process a transfer was neither a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii)). The Panel finds that Respondent does not have rights or legitimate interests in the disputed domain name per Policy ¶¶ 4(c)(i) or (iii).
Respondent (who did not reply to Complainant’s contentions) has not presented any plausible explanation for its use of Complainant’s mark. As already noted, 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 names.
Indeed, as already noted, Respondent has attempted to impersonate an executive of Complainant in emails designed fraudulently to solicit cash transfers. Such use of a domain name supports a finding of bad faith registration and use per Policy ¶ 4(a)(iii). See Qatalyst Partners LP v. Devimore, FA 1393436 (Forum July 13, 2011) (finding that using the disputed domain name as an e-mail address to pass itself off as the complainant in a phishing scheme is evidence of bad faith registration and use). Accordingly, the Panel finds Respondent to have registered and used the disputed domain name in bad faith per Policy ¶ 4(a)(iii).
Further, Respondent attempts to pass of as Complainant by reproducing Complainant’s home page at the resolving website This also evinces its bad faith registration and use of the disputed domain name per Policy ¶ 4(b)(iv). See Am. Online, Inc. v. Miles, FA 105890 (Forum May 31, 2002) (“Respondent is using the domain name at issue to resolve to a website at which Complainant’s trademarks and logos are prominently displayed. Respondent has done this with full knowledge of Complainant’s business and trademarks. The Panel finds that this conduct is that which is prohibited by Paragraph 4(b)(iv) of the Policy.”). Accordingly, the Panel finds that Respondent has registered and sued the disputed domain name in bad faith per Policy ¶ 4(b)(iv).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <housadv.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: September 27, 2017
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