United Services Automobile Association v. Gabriel Joseph
Claim Number: FA1804001781133
Complainant is United Services Automobile Association (“Complainant”), represented by Manuel Rivera of United Services Automobile Association, Texas, USA. Respondent is Gabriel Joseph (“Respondent”), Great Britain.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <usaatrustfund.com>, registered with NameCheap, Inc.
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 April 10, 2018; the Forum received payment on April 10, 2018.
On April 10, 2018, NameCheap, Inc. confirmed by e-mail to the Forum that the <usaatrustfund.com> domain name is registered with NameCheap, Inc. and that Respondent is the current registrant of the name. NameCheap, Inc. has verified that Respondent is bound by the NameCheap, 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 April 17, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 7, 2018 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@usaatrustfund.com. Also on April 17, 2018, 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 May 11, 2018, 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, United Services Automobile Association is the leading company for providing a wide variety of services and products, primarily financial and insurance services, for members of the United States Armed Forces.
Complainant has rights in the USAA mark through its trademark registrations with the United States Patent and Trademark Office (“USPTO”) (e.g. Reg. No. 806,520, registered on Mar. 29, 1966).
Respondent’s <usaatrustfund.com> domain name is confusingly similar to Complainant’s USAA mark as Respondent incorporates the mark in its entirety and merely adds the generic term “trustfund” and the “.com” generic top level domain (“gTLD”).
Respondent has no rights or legitimate interests in the <usaatrustfund.com> domain name. Respondent is not authorized or permitted to use Complainant’s USAA mark and is not commonly known by the disputed domain name. Furthermore, 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. Instead, Respondent uses the <usaatrustfund.com> domain name as part of a fraudulent phishing scheme.
Respondent registered and is using the <usaatrustfund.com> domain name in bad faith. Respondent attempts to acquire internet users’ personal and financial information as part of a phishing scheme through the disputed domain name. Furthermore, Respondent had actual knowledge and constructive notice of Complainant’s rights in the USAA mark at the time of registration.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has rights in the USAA mark as demonstrated by its registration of such mark with the USPTO.
Complainant’s rights in the USAA mark existed prior to Respondent’s registration of the at-issue domain name.
Respondent uses the <usaatrustfund.com> domain name as part of a 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.”).
The at-issue domain name is confusingly similar to a trademark in which Complainant has rights.
Complainant’s USPTO trademark registration for USAA demonstrates that Complainant has rights in a mark under Policy ¶ 4(a)(i). See Haas Automation, Inc. v. Jim Fraser, FA 1627211 (Forum Aug. 4, 2015) (finding that Complainant’s USPTO registrations for the HAAS mark sufficiently demonstrate its rights in the mark under Policy ¶ 4(a)(i)).
Respondent’s <usaatrustfund.com> domain name contains Complainant’s entire USAA trademark followed by the term “trustfund” with the top-level domain name “.com” appended thereto. The differences between Complainant’s trademark and the <usaatrustfund.com> domain name fail to distinguish the domain name from Complainant’s mark for the purpose of Policy ¶ 4(a)(i). In fact the inclusion of the term “trustfund” in the domain name is somewhat suggestive of Respondent’s finance related business. Therefore, incorporating the term “trustfund” into the at-issue domain name only adds to any confusion resulting from the inclusion of Complainant’s USAA trademark. The Panel thus concludes that Respondent’s <usaatrustfund.com> domain name is confusingly similar to Complainant’s USAA trademark. See Traditional Medicinals, Inc. v. Flippa Chick, FA1006001328702 (Forum July 15, 2010) (“Respondent’s disputed domain name contains Complainant’s SMOOTH MOVE mark in its entirety after removing the space separating the terms of the mark, adds the descriptive terms “herbal tea” and adds the generic top-level domain (“gTLD”) “.com.” The Panel finds that the addition of descriptive terms creates a confusing similarity between the disputed domain name and Complainant’s mark.”); see also, Trip Network Inc. v. Alviera, FA 914943 (Forum Mar. 27, 2007) (concluding that the affixation of a gTLD to a domain name is irrelevant to a Policy ¶ 4(a)(i) analysis).
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 (Forum Aug. 18, 2006). Since Respondent failed to respond, 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 identifies the domain name’s registrant as “Gabriel Joseph.” Notably, the record before the Panel contains no evidence that otherwise tends to prove that Respondent is commonly known by the <usaatrustfund.com> domain name. The Panel therefore concludes that Respondent is not commonly known by the <usaatrustfund.com> domain name for the purposes of Policy ¶ 4(c)(ii). See 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); see also, Amazon Technologies, Inc. v. Suzen Khan / Nancy Jain / Andrew Stanzy, FA 1741129 (Forum Aug. 16, 2017) (finding that respondent had no rights or legitimate interests in the disputed domain names when the identifying information provided by WHOIS was unrelated to the domain names or respondent’s use of the same).
Additionally, Respondent uses its <usaatrustfund.com> domain name to facilitate a phishing scheme. Using the domain name in this manner is neither a bona fide offering of goods or services under Policy ¶ 4 (c)(i), nor a non-commercial or fair use pursuant to Policy ¶ 4(c)(iii See Lockheed Martin Corporation v. mail mail, FA1707001739473 (Forum, Aug. 9, 2017) (“Respondent does not use the <lm-corporation.com> domain name for any legitimate purpose because Respondent uses it to fraudulently obtain valuable and highly sensitive government contracts. Using a confusingly similar domain name to fraudulently obtain information or money fails to constitute a bona fide offering of goods or services or legitimate noncommercial or fair use”); see also Microsoft Corporation v. Terrence Green / Whois Agent / Whois Privacy Protection Service, Inc., FA 1661030 (Forum Apr. 4, 2016) (finding the respondent’s use of the disputed domain names to send fraudulent emails purportedly from agents of complainant to be 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)).
Given the forgoing, Complainant satisfies its initial burden and conclusively demonstrates Respondent’s lack of rights and lack of interests in respect of the at-issue domain name under Policy ¶4(a)(ii).
The at-issue domain name was registered and is being used in bad faith. As discussed below Policy ¶ 4(b) bad faith circumstances are present and there is additional non-Policy ¶ 4(b) evidence from which the Panel may independently conclude that Respondent acted in bad faith pursuant to Policy ¶ 4(a)(iii).
As mentioned above regarding rights and interests, Respondent registered and is using its <usaatrustfund.com> domain name to facilitate a phishing scheme. Respondent is intent on tricking third parties into giving up sensitive private information by posing as Complainant via the confusingly similar domain name. The information is then illegally exploited for Respondent’s financial benefit. Respondent also appears to be distributing malware/spyware in the process. Respondent’s use of the at-issue domain name in this manner shows Respondent’s bad faith 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 per Policy ¶ 4(b)(iv)); see also, V.F. Corporation v. Kyle Greig, FA 1309001517896 (Forum Oct. 11, 2013) (“The same behavior, called “phishing,” which makes clear that Respondent has no rights to or legitimate interests in the <vfcorp.org> domain name also shows that Respondent both registered and uses the domain name in bad faith”).
Finally, Respondent had actual knowledge of Complainant’s rights in the USAA mark when it registered the <usaatrustfund.com> domain name. Respondent’s actual knowledge is, without limitation, evident from Respondent’s use of the domain name to pose as Complainant in furtherance of a phishing scheme, as well as being evident from the notoriety of Complainant’s trademark. Registering and using a confusingly similar domain name with knowledge of Complainant’s rights in such domain name shows bad faith registration and use pursuant to Policy ¶4(a)(iii). See Minicards Vennootschap Onder FIrma Amsterdam v. Moscow Studios, FA 1031703 (Forum Sept. 5, 2007) (holding that respondent registered a domain name in bad faith under Policy ¶ 4(a)(iii) after concluding that respondent had actual knowledge of Complainant's mark when registering the disputed domain name); see also, Univision Comm'cns Inc. v. Norte, FA 1000079 (Forum Aug. 16, 2007) (rejecting the respondent's contention that it did not register the disputed domain name in bad faith since the panel found that the respondent had knowledge of the complainant's rights in the UNIVISION mark when registering the disputed domain name).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <usaatrustfund.com> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: May 13, 2018
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