Webster Financial Corporation and Webster Bank, National Association v. Conquistador Sat
Claim Number: FA1309001520211
Complainants are Webster Financial Corporation and Webster Bank, National Association (“Complainant”), represented by Diane Duhaime of Jorden Burt LLP, Connecticut, USA. Respondent is Conquistador Sat (“Respondent”), Germany.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <webesteronline.com>, registered with FABULOUS.COM PTY LTD.
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.
David E. Sorkin as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on September 18, 2013; the National Arbitration Forum received payment on September 18, 2013.
On September 18, 2013, FABULOUS.COM PTY LTD. confirmed by e-mail to the National Arbitration Forum that the <webesteronline.com> domain name is registered with FABULOUS.COM PTY LTD. and that Respondent is the current registrant of the name. FABULOUS.COM PTY LTD. has verified that Respondent is bound by the FABULOUS.COM PTY LTD. 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 19, 2013, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 9, 2013 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@webesteronline.com. Also on September 19, 2013, 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 National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On October 16, 2013, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed David E. Sorkin 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" 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 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
Complainant is a Delaware corporation and its wholly-owned subsidiary, both of which are headquartered in Connecticut. Complainant offers banking and financial services, including online banking services, under names and marks incorporating the term WEBSTER. Among Complainant’s marks is WEBSTERONLINE.COM, used since 1999 and registered on the Principal Register of the U.S. Trademark and Patent Office in 2008.
Complainant alleges that the disputed domain name, <webesteronline.com>, is confusingly similar to its marks, representing an instance of “typosquatting,” designed to take advantage of Internet users’ typographical errors when seeking Complainant’s website at <websteronline.com>. Complainant further alleges that Respondent has used the disputed domain name for a website containing links to competitors of Complainant offering financial services, in some instances labeled “Webster Online Banking,” and changed the nature of the links only after receiving a cease and desist letter from Complainant. Complainant states that it has never authorized Respondent to use its marks, and asserts that Respondent has not been commonly known by the disputed domain name. Complainant alleges, based on these and other grounds, that Respondent lacks rights or legitimate interests in the disputed domain name and that the disputed domain name was registered and is being used in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that the disputed domain name is confusingly similar to a mark in which Complainant has rights; that Respondent lacks rights or legitimate interests in respect of the disputed domain name; and that the disputed domain name was registered and has been used in bad faith.
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(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.”).
The disputed domain name is identical to Complainant’s registered mark WEBSTERONLINE.COM, but for the addition of a letter “e.” The Panel agrees with Complainant’s characterization of this domain name as an example of “typosquatting,” and considers the domain name to be confusingly similar to Complainant’s mark for purposes of paragraph 4(a)(i) of the Policy. See, e.g., Advance Auto Parts, Inc. v. Conquistador Sat, FA 1480897 (Nat. Arb. Forum Feb. 26, 2013) (finding <advanceautopaets.com> confusingly similar to ADVANCE AUTO PARTS mark, notwithstanding substitution of “e” for “r” and addition of top-level domain).
Under the Policy, the Complainant must first make a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain name, and then the burden shifts to the Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006).
The disputed domain name corresponds to Complainant’s mark and domain name, with a minor typographical error; and the only apparent use of the domain name is in connection with a website seemingly calculated to create and exploit confusion among Internet users and infringe upon Complainant’s marks. See Advance Auto Parts, Inc. v. Conquistador Sat, supra (finding lack of rights or legitimate interests based upon similar facts). Respondent has not come forward with any evidence of rights or legitimate interests. Accordingly, the Panel finds that Complainant has sustained its burden of proving that Respondent lacks rights or legitimate interests in respect of the disputed domain name.
Finally, Complainant must show that the disputed domain name was registered and has been used in bad faith. Under paragraph 4(b)(iv) of the Policy, bad faith may be shown by evidence that “by using the domain name, [Respondent] intentionally attempted to attract, for commercial gain, Internet users to [Respondent’s] web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of [Respondent’s] web site or location or of a product or service
on [Respondent’s] web site or location.”
Respondent’s use of the domain name for a website containing links to Complainant’s competitors but bearing Complainant’s name, presumably generating clickthrough or referral fees for Respondent, is indicative of bad faith use under the Policy. See, e.g., Red Hat, Inc. v. Haecke, FA 726010 (Nat. Arb. Forum July 24, 2006). Absent any evidence that the domain name was registered for a different purpose, the Panel infers that the name was registered in bad faith as well. The fact that Respondent’s registration and use of the domain name are obvious attempts to take advantage of typographical errors by Internet users lends further support to these conclusions. See Zone Labs, Inc. v. Zuccarini, FA 190613 (Nat. Arb. Forum Oct. 15, 2003) (characterizing typosquatting as evidence of bad faith registration and use).
Having considered all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <webesteronline.com> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: October 16, 2013
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