Wells Fargo & Company v. Maniac State c/o Maniac Smith
Claim Number: FA0512000608239
Complainant is Wells Fargo & Company (“Complainant”), represented by Deborah Shinbein, of Faegre & Benson, LLP, 1700 Lincoln St., Suite 3200, Denver, CO 80203-4532. Respondent is Maniac State c/o Maniac Smith (“Respondent”), Charlottenstr. 58, Berlin, 10117, Germany.
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <wellsbankupdate.com>, registered with Key-Systems Gmbh.
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.
Louis E. Condon as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on December 9, 2005; the National Arbitration Forum received a hard copy of the Complaint on December 12, 2005. The Complaint was submitted in both German and English.
On December 14, 2005, Key-Systems Gmbh confirmed by e-mail to the National Arbitration Forum that the <wellsbankupdate.com> domain name is registered with Key-Systems Gmbh and that Respondent is the current registrant of the name. Key-Systems Gmbh has verified that Respondent is bound by the Key-Systems Gmbh registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy").
On December 15, 2005, a German language Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of January 4, 2006 by which Respondent could file a response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent's registration as technical, administrative and billing contacts, and to postmaster@wellsbankupdate.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On January 10, 2006, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Louis E. Condon as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration 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." Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN 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.
Pursuant to Rule 11(a) the Panel determines that the language requirement has been satisfied through the German language Complaint and Commencement Notification and, absent a Response, determines that the remainder of the proceedings may be conducted in English.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <wellsbankupdate.com> domain name is confusingly similar to Complainant’s WELLS FARGO mark.
2. Respondent does not have any rights or legitimate interests in the <wellsbankupdate.com> domain name.
3. Respondent registered and used the <wellsbankupdate.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Wells Fargo & Company is a diversified financial services company with $422 billion in assets and 146,000 employees, providing banking, insurance, investments, mortgages and consumer finance for more than 27,000,000 customers through over 6,000 locations. Complainant issues 6,000,000 credit card accounts and was the number one originator of home mortgages in the United States in 2003. Complainant has provided financial services and related goods and services to the public under the WELLS FARGO mark and family of WELLS FARGO marks since 1852.
Complainant holds numerous trademark registrations with the United States Patent and Trademark Office (“USPTO”) for the WELLS FARGO mark (i.e., Reg. No. 779,187 issued October 27, 1964).
Respondent registered the <wellsbankupdate.com> domain name on June 30, 2005. Respondent is using the disputed domain name to “phish” personal and financial information from Complainant’s customers through a website that looks similar in appearance to Complainant’s websites.
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."
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(e), 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 (Nat. Arb. 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.”).
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.
Complainant has established rights in the WELLS FARGO mark
through registration of the mark with the USPTO. See Am. Online, Inc. v. Thomas P.
Culver Enters., D2001-0564 (WIPO June 18, 2001) (finding that successful
trademark registration with the USPTO creates a presumption of rights in a
mark); see also Innomed Tech., Inc. v. DRP Servs., FA 221171 (Nat. Arb. Forum Feb. 18, 2004)
(“Registration
of the NASAL-AIRE mark with the USPTO establishes Complainant's rights in the
mark.”).
Respondent’s
<wellsbankupdate.com> domain name is confusingly similar to
Complainant’s WELLS FARGO mark because Respondent’s domain name incorporates a
dominant feature of Complainant’s mark, omits the term “fargo,” and adds the
terms “bank” and “update” and the generic top-level domain “.com.” Furthermore, the term “bank” describes
Complainant. The Panel finds that such
minor alterations to Complainant’s registered mark do not negate the
confusingly similar aspects of Respondent’s domain name pursuant to Policy ¶
4(a)(i). See
Asprey & Garrard Ltd v. Canlan Computing, D2000-1262 (WIPO Nov. 14, 2000) (finding that the domain name
<asprey.com> is confusingly similar to the complainant’s ASPREY &
GARRARD and MISS ASPREY marks); see also Am. Eagle Outfitters, Inc. v. Admin, FA
473826 (Nat. Arb. Forum June 22, 2005) (finding the
<americaneaglestores.com> domain name to be confusingly similar to the
complainant’s AMERICAN EAGLE OUTFITTERS mark); see also Space Imaging LLC v.
Brownell, AF-0298 (eResolution Sept. 22, 2000) (finding confusing
similarity where the respondent’s domain name combines the complainant’s mark
with a generic term that has an obvious relationship to the complainant’s
business); see also Marriott Int’l, Inc. v. Café au lait, FA 93670,
(Nat. Arb. Forum Mar. 13, 2000) (finding that the respondent’s domain name
<marriott-hotel.com> is confusingly similar to the complainant’s MARRIOTT
mark); see also Nev. State Bank v. Modern Ltd. – Cayman Web Dev., FA
204063 (Nat. Arb. Forum Dec. 6, 2003) (“It has been established that the
addition of a generic top-level domain is irrelevant when considering whether a
domain name is identical or confusingly similar under the Policy.”).
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant has alleged that Respondent does not have rights or legitimate interests in the <wellsbankupdate.com> domain name. Once Complainant makes a prima facie case in support of its allegations, the burden shifts to Respondent to prove that it does have rights or legitimate interests pursuant to Policy ¶ 4(a)(ii). Due to Respondent’s failure to respond to the Complaint, the Panel assumes that Respondent does not have rights or legitimate interests in the disputed domain name. See G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum Oct. 1, 2002) (holding that, where the complainant has asserted that respondent does not have rights or legitimate interests with respect to the domain name, it is incumbent on respondent to come forward with concrete evidence rebutting this assertion because this information is “uniquely within the knowledge and control of the respondent”); see also Clerical Med. Inv. Group Ltd. v. Clericalmedical.com, D2000-1228 (WIPO Nov. 28, 2000) (finding that, under certain circumstances, the mere assertion by the complainant that the respondent does not have rights or legitimate interests is sufficient to shift the burden of proof to the respondent to demonstrate that such a right or legitimate interest does exist).
Respondent is using the disputed domain name to “phish”
personal and financial information from Complainant’s customers through a
website that looks similar in appearance to Complainant’s websites. The Panel finds that Respondent’s use of a
domain name that is confusingly similar to Complainant’s mark to divert
Internet users for Respondent’s commercial gain 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). See Juno Online Servs., Inc. v. Nelson, FA 241972 (Nat. Arb. Forum Mar.
29, 2004) (“‘Phishing’ involves the use of e-mails, pop-ups or other methods to
trick Internet users into revealing credit cards, passwords, social security
numbers and other personal information to the ‘phishers’ who intend to use such
information for fraudulent purposes.”); see also HOPE worldwide, Ltd. v. Jin,
FA 320379 (Nat. Arb. Forum Nov. 11, 2004) (defining “phishing” as fooling “Internet
users into sharing personal financial data so that identities can be stolen,
fraudulent bills are run up, and spam e-mail is sent”); see also MSNBC Cable, LLC v. Tysys.com,
D2000-1204 (WIPO Dec. 8, 2000) (finding no rights or legitimate interests in
the famous MSNBC mark where the respondent attempted to profit using the
complainant’s mark by redirecting Internet traffic to its own website); see
also Juno Online Servs., Inc. v.
Nelson, FA 241972 (Nat. Arb. Forum Mar. 29, 2004) (finding that using a domain
name in a fraudulent scheme to deceive Internet users into providing their
credit card and personal information is not a bona fide offering of goods or services nor a legitimate
noncommercial or fair use).
Moreover, Respondent has offered no evidence and there is no evidence in the record suggesting that Respondent is commonly known by the <wellsbankupdate.com> domain name. Thus, Respondent has not established rights or legitimate interests in the <wellsbankupdate.com> 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 interests 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); see also Gallup Inc. v. Amish Country Store, FA 96209 (Nat. Arb. Forum Jan. 23, 2001) (finding that the respondent does not have rights in a domain name when the respondent is not known by the mark); see also Broadcom Corp. v. Intellifone Corp., FA 96356 (Nat. Arb. Forum Feb. 5, 2001) (finding no rights or legitimate interests because the respondent was not commonly known by the disputed domain name nor was the respondent using the domain name in connection with a legitimate or fair use).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Respondent is using the <wellsbankupdate.com> domain name, which is confusingly similar to Complainant’s WELLS FARGO mark, to fraudulently retrieve personal and financial information from Complainant’s customers. Such use is evidence that Respondent registered and used the domain name in bad faith pursuant to Policy ¶ 4(a)(iii). See Monsanto Co. v. Decepticons, FA 101536 (Nat. Arb. Forum Dec. 18, 2001) (finding that Respondent's use of <monsantos.com> to misrepresent itself as Complainant and to provide misleading information to the public supported a finding of bad faith); see also Juno Online Servs., Inc. v. Nelson, FA 241972 (Nat. Arb. Forum Mar. 29, 2004) (“The domain name <billing-juno.com> was registered and used in bad faith by using the name for fraudulent purposes.”).
The Panel finds that Policy ¶ 4(a)(iii) has been satisfied.
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief should be GRANTED.
Accordingly, it is Ordered that the <wellsbankupdate.com> domain name be TRANSFERRED from Respondent to Complainant.
Louis E. Condon, Panelist
Dated: January 19, 2006
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