ACCION USA Inc. and ACCION International v. Accion Now c/o Brian Accion
Claim Number: FA0908001278458
Complainant is ACCION USA Inc. and ACCION International (“Complainant”), represented by Brenda R. Sharton, of Goodwin Procter LLP, Massachusetts, USA. Respondent is Accion Now c/o Brian Accion (“Respondent”), Canada.
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <accionnow.com>, registered with Enom, 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.
Tyrus R. Atkinson, Jr., as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on August 7, 2009; the National Arbitration Forum received a hard copy of the Complaint on August 11, 2009.
On August 10, 2009, Enom, Inc. confirmed by e-mail to the National Arbitration Forum that the <accionnow.com> domain name is registered with Enom, Inc. and that Respondent is the current registrant of the name. Enom, Inc. has verified that Respondent is bound by the Enom, Inc. 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 August 17, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of September 7, 2009 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@accionnow.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On September 11, 2009 pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Tyrus R. Atkinson, Jr., 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.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <accionnow.com> domain name is confusingly similar to Complainant’s ACCION mark.
2. Respondent does not have any rights or legitimate interests in the <accionnow.com> domain name.
3. Respondent registered and used the <accionnow.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, ACCION USA Inc.
and ACCION International, is a private non-profit organization that serves
low-to-moderate income business owners who are unable to access mainstream
financial services. Complainant began
using the ACCION mark in connection with its financial services business in
1983. Complainant holds a registration
of the mark with the United States Patent and Trademark Office (“USPTO”) (Reg.
No. 3,006,595 issued October 11, 2005).
Respondent registered the <accionnow.com> domain name on June 9, 2009. The disputed domain name once resolves to a website that fraudulently advertises loan opportunities.
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.
The Panel is satisfied with Complainant’s showing of rights in the ACCION mark under Policy ¶ 4(a)(i) through its registration of the mark with the USPTO (Reg. No. 3,006,595 issued October 11, 2005). See Expedia, Inc. v. Tan, FA 991075 (Nat. Arb. Forum June 29, 2007) (“As the [complainant’s] mark is registered with the USPTO, [the] complainant has met the requirements of Policy ¶ 4(a)(i).”); see also Morgan Stanley v. Fitz-James, FA 571918 (Nat. Arb. Forum Nov. 29, 2005) (finding from a preponderance of the evidence that the complainant had registered its mark with national trademark authorities, the Panel determined that “such registrations present a prima facie case of Complainant’s rights in the mark for purposes of Policy ¶ 4(a)(i).”).
Respondent’s <accionnow.com> domain name contains Complainant’s ACCION mark in its entirety, adds the generic term “now,” and adds the generic top-level domain “.com.” Accordingly, the Panel finds that the <accionnow.com> domain name is confusingly similar to Complainant’s ACCION mark under Policy ¶ 4(a)(i) because none of these additions to Complainant’s mark sufficiently distinguish the disputed domain from Complainant’s mark. See Oki Data Ams., Inc. v. ASD, Inc., D2001-0903 (WIPO Nov. 6, 2001) (“[T]he fact that a domain name wholly incorporates a Complainant’s registered mark is sufficient to establish identity [sic] or confusing similarity for purposes of the Policy despite the addition of other words to such marks”); see also Warner Bros. Entm’t Inc. v. Rana, FA 304696 (Nat. Arb. Forum Sept. 21, 2004) (finding that the addition of the generic term “collection” to Complainant’s HARRY POTTER mark failed to distinguish the domain name from the mark); see also Reese v. Morgan, FA 917029 (Nat. Arb. Forum Apr. 5, 2007) (finding that the mere addition of the generic top-level domain “.com” is insufficient to differentiate a disputed domain name from a mark).
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
In the beginning, Complainant must make a prima facie showing that Respondent lacks rights and legitimate interests in the disputed domain name. The Panel finds that Complainant has sufficiently made its prima facie showing under Policy ¶ 4(a)(ii). The burden then shifts to Respondent and Respondent must establish that it has rights or legitimate interests in the disputed domain name. See Compagnie Generale des Matieres Nucleaires v. Greenpeace Int’l, D2001-0376 (WIPO May 14, 2001) (“Proving that the Respondent has no rights or legitimate interests in respect of the Domain Name requires the Complainant to prove a negative. For the purposes of this sub paragraph, however, it is sufficient for the Complainant to show a prima facie case and the burden of proof is then shifted on to the shoulders of Respondent. In those circumstances, the common approach is for respondents to seek to bring themselves within one of the examples of paragraph 4(c) or put forward some other reason why they can fairly be said to have a relevant right or legitimate interests in respect of the domain name in question.”); see also G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum Oct. 1, 2002) (“Because Complainant’s Submission constitutes a prima facie case under the Policy, the burden effectively shifts to Respondent. Respondent’s failure to respond means that Respondent has not presented any circumstances that would promote its rights or legitimate interests in the subject domain name under Policy ¶ 4(a)(ii).”).
The WHOIS information for the <accionnow.com> domain name lists “Accion Now c/o Brian Accion.” While this information suggests that Respondent may be commonly known by the disputed domain, no other information in the record corroborates this suggestion. Therefore, the Panel finds that Respondent is not commonly known by the the <accionnow.com> domain name under Policy ¶ 4(c)(ii). See AOL LLC v. AIM Profiles, FA 964479 (Nat. Arb. Forum May 20, 2007) (finding that although the respondent listed itself as “AIM Profiles” in the WHOIS contact information, there was no other evidence in the record to suggest that the respondent was actually commonly known by that domain name); see also Nature’s Path Foods Inc. v. Natures Path, Inc., FA 237452 (Nat. Arb. Forum Apr. 2, 2004) (“In its WHOIS contact information, Respondent lists its name and its administrative contact as ‘Natures Path, Inc.’ However, since Respondent failed to respond to the Complaint, there has not been any affirmative evidence provided to the Panel showing that Respondent was commonly known by the disputed domain name prior to its registration of the domain name.”).
Respondent’s <accionnow.com>
domain name resolves to a website that purports to allow individuals to apply
for loans. Complainant is also in the
business of offering loans to individuals.
The Panel finds that Respondent is attempting to pass itself off as
Complainant, as Respondent uses Complainant’s name and address on the resolving
website. The Panel further finds that
Respondent’s attempt to pass itself off as Complainant does not represent a bona fide offering of goods or services
under Policy ¶ 4(c)(i) or a legitimate noncommercial
or fair use under Policy ¶ 4(c)(iii).
Furthermore, Respondent’s <accionnow.com> domain name resolves to a website that offers fraudulent loan opportunities as part of a phishing scheme to obtain confidential information. The Panel finds that Respondent’s phishing attempt is further evidence that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii). See Allianz of Am. Corp. v. Bond, FA 690796 (Nat. Arb. Forum June 12, 2006) (holding that the respondent’s use of the <allianzcorp.biz> domain name to fraudulently acquire the personal and financial information of Internet users seeking Complainant’s financial services was not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use of the disputed domain name pursuant to Policy ¶ 4(c)(iii)); see also Capital One Fin. Corp. v. Howel, FA 289304 (Nat. Arb. Forum Aug. 11, 2004) (finding that using a domain name to redirect Internet users to a website that imitated the complainant’s credit application website and attempted to fraudulently acquire personal information from the complainant’s clients was not a bona fide offering of goods or services or a legitimate noncommercial or fair use).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
The Panel finds that Respondent’s attempt to pass itself off
as Complainant in order to financially gain by obtaining confidential
information constitutes bad faith registration and use under Policy ¶ 4(b)(iv), as Respondent has created a likelihood of confusion
as to Complainant’s affiliation with the disputed domain name. See Capital One Fin. Corp. & Capital One
Bank v. Howel, FA 289304 (Nat. Arb. Forum Aug. 11, 2004) (“The
<capitalonebank.biz> domain name is confusingly similar to Complainant’s
mark, it is being used to redirect Internet users to a website that imitates
Complainant’s credit application website, and it is being used to fraudently
[sic] acquire personal information from Complainant’s clients. Respondent’s use of the domain name supports
findings of bad faith registration and use pursuant to Policy ¶ 4(a)(iii).”); see also Vivendi Universal Games v. Ballard, FA 146621 (Nat. Arb.
Forum Mar. 13, 2002) (finding that where the complainant’s mark was appropriated at registration, and a copy of
the complainant’s website was used at the domain name in order to facilitate
the interception of the complainant’s customer’s account information, the
respondent’s behavior evidenced bad faith use and registration of the domain
name).
Moreover, the Panel
finds that Respondent’s aforementioned phishing attempt to fraudulently acquire
Internet users’ personal information represents further evidence of bad faith
registration and use under Policy ¶ 4(a)(iii). See Wells
Fargo & Co. v.
The Panel finds that Policy ¶ 4(a)(iii) has been satisfied.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <accionnow.com> domain name be TRANSFERRED from Respondent to Complainant.
Tyrus R. Atkinson, Jr., Panelist
Dated: September 23, 2009
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