The United Nations Federal Credit Union v. Marcus Brown / Mbrown
Claim Number: FA1710001752126
Complainant is The United Nations Federal Credit Union (“Complainant”), represented by Michael Rott, New York, USA. Respondent is Marcus Brown / Mbrown (“Respondent”), Nigeria.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <onlineunfcu.com>, registered with PDR Ltd. d/b/a PublicDomainRegistry.com.
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.
Hon. Karl v. Fink (Ret.) as Panelist.
Complainant submitted a Complaint to the Forum electronically on October 4, 2017; the Forum received payment on October 4, 2017.
On Oct 06, 2017, PDR Ltd. d/b/a PublicDomainRegistry.com confirmed by e-mail to the Forum that the <onlineunfcu.com> domain name is registered with PDR Ltd. d/b/a PublicDomainRegistry.com and that Respondent is the current registrant of the name. PDR Ltd. d/b/a PublicDomainRegistry.com has verified that Respondent is bound by the PDR Ltd. d/b/a PublicDomainRegistry.com 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 October 10, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 30, 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@onlineunfcu.com. Also on October 10, 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 October 31, 2017, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Hon. Karl V. Fink (Ret.) 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, The United Nations Federal Credit Union, serves the financial needs of the United Nations community as well as many other consumers. In connection with this business, Complainant uses the UNFCU mark to offer and promote its services. Complainant has rights in the UNFCU mark based upon registration with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 2,666,294, registered Dec. 24, 2002). Respondent’s <onlineunfcu.com> is confusingly similar to Complainant’s mark.
Respondent has no rights or legitimate interests in the <onlineunfcu.com> domain name, as evidenced by its failure to use the name to make a bona fide offering of goods and services or for a legitimate noncommercial or fair use. Instead, Respondent uses the domain name to fraudulently misrepresent itself as Complainant.
Respondent has registered and used the <onlineunfcu.com> domain name in bad faith. The website resolving from the domain name displays Complainant’s registered trademarks in an attempt to impersonate a financial services webpage in an attempt to confuse, mislead, and defraud the public.
B. Respondent
Respondent failed to submit a Response in this proceeding.
For the reasons set forth below, the Panel finds Complainant is entitled to the requested relief of transfer of the <onlineunfcu.com> domain name.
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 claims rights in the UNFCU mark based upon registration of the mark with the USPTO (Reg. No. 2,666,294, registered Dec. 24, 2002). Registration of a mark with the USPTO is sufficient to establish rights in that mark. See Home Depot Product Authority, LLC v. Samy Yosef / Express Transporting, FA 1738124 (Forum July 28, 2017) (finding that registration with the USPTO was sufficient to establish the complainant’s rights in the HOME DEPOT mark). The Panel holds that Complainant’s registration of the UNFCU mark with the USPTO is sufficient to establish rights in the mark under Policy ¶ 4(a)(i).
Complainant next claims Respondent’s <onlineunfcu.com> domain name is confusingly similar to its UNFCU mark. Complainant does not expand on this claim, but the domain name incorporates the mark in its entirety, merely adding the generic term “online” and the generic top-level domain (“gTLD”) “.com.” Addition of a generic term and a gTLD to a mark in order to form a domain name does not distinguish the resultant domain name from the mark for the purposes of Policy ¶ 4(a)(i). See Wiluna Holdings, LLC v. Edna Sherman, FA 1652781 (Forum Jan. 22, 2016) (Finding the addition of a generic term and gTLD is insufficient in distinguishing a disputed domain name from a mark under Policy ¶ 4(a)(i).). The Panel finds that the <onlineunfcu.com> domain name is confusingly similar to Complainant’s mark per Policy ¶ 4(a)(i).
Complainant has proved this element.
Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), and then the burden shifts to Respondent to show it does have rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name); see also AOL LLC v. Gerberg, FA 780200 (Forum Sept. 25, 2006) (“Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.”).
Complainant argues that Respondent has no rights or legitimate interests in <onlineunfcu.com> as Respondent is not commonly known by the disputed domain name. Where a response is lacking, WHOIS information can support a finding that a respondent is not commonly known by a 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)); see also Kohler Co. v. Privacy Service, FA1505001621573 (Forum July 2, 2015) (holding that the respondent was not commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii) where “Privacy Service” was listed as the registrant of the disputed domain name). A privacy service was used by Respondent, but was lifted as a result of the commencement of this proceeding. As a result, the Panel notes that the WHOIS information of record identifies Respondent as “Marcus Brown / Mbrown.” The Panel finds under Policy ¶ 4(c)(ii) that Respondent has not been commonly known by the disputed domain name.
Complainant contends Respondent’s lack of rights or legitimate interests in the <onlineunfcu.com> domain name is demonstrated by Respondent’s failure to use the name for any legitimate business purpose. Rather, Complainant claims Respondent uses the domain name to fraudulently misrepresent itself as Complainant. Use of a disputed domain name to pass off as a complainant is not a bona fide offering of goods or services or a noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii). See Mortgage Research Center LLC v. Miranda, FA 993017 (Forum July 9, 2007) (“Because [the] respondent in this case is also attempting to pass itself off as [the] complainant, presumably for financial gain, the Panel finds the respondent is not using the <mortgageresearchcenter.org> domain name for 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).”). The Panel agrees this behavior demonstrates a lack of rights or legitimate interests in the domain name per Policy ¶¶ 4(c)(i) and (iii).
Complainant further argues that Respondent’s passing off behavior may be in furtherance of a phishing scheme. Phishing is the attempt of a website, email, or other methods to trick Internet users into revealing personal financial information. See Capital One Fin. Corp. v. Howel, FA 289304 (Forum Aug. 11, 2004) (defining “phishing” as “a practice that is intended to defraud consumers into revealing personal and proprietary information”). Such use is not indicative of rights or legitimate interests per Policy ¶ 4(a)(ii). See Morgan Stanley v. Zhange Sheng Xu / Zhang Sheng Xu, FA1501001600534 (Forum Feb. 26, 2015) (“The Panel agrees that the respondent’s apparent phishing attempt provides further indication that the respondent lacks any rights or legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii).”). Complainant includes the declaration of one of its information security officers, indicating the likelihood that Respondent’s behavior amounts to a phishing attempt. The Panel agrees and finds Respondent lacks rights and legitimate interests per Policy ¶ 4(a)(ii).
Complainant has proved this element.
Complainant claims Respondent’s passing off behavior indicates Respondent registered and used the <onlineunfcu.com> domain name in bad faith. Passing off as a complainant to confuse and misdirect Internet users for commercial gain can be evidence of bad faith registration and use per Policy ¶ 4(b)(iii) and (iv). See Wells Fargo & Co. v. Mihael, FA 605221 (Forum Jan. 16, 2006) (“Complainant asserts,…that soon after the disputed domain name was registered, Respondent arranged for it to resolve to a web site closely resembling a legitimate site of Complainant, called a ‘doppelganger’ (for double or duplicate) page, the purpose of which is to deceive Complainant’s customers into providing to Respondent their login identification, social security numbers, and/or account information and Personal Identification Numbers…. The Panel finds that Respondent’s behavior, as alleged, constitutes bad faith registration and use of the subject domain name pursuant to Policy ¶ 4(a)(iii).”); see also 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.”). Complainant’s contention is that the domain name resolves to a site in which Respondent attempts to confuse consumers in an attempt to obtain personal information. The Panel finds Respondent to have registered and used the domain name in bad faith per Policy ¶¶ 4(b)(iii) and/or (iv).
Complainant also claims Respondent’s phishing behavior is evidence of its bad faith. Phishing can be independent evidence of bad faith registration and use per Policy ¶ 4(a)(iii). See Klabzuba Oil & Gas, Inc. v. LAKHPAT SINGH BHANDARI, FA1506001625750 (Forum July 17, 2015) (“Respondent uses the <klabzuba-oilgas.com> domain to engage in phishing, which means Respondent registered and uses the domain name in bad faith under Policy ¶ 4(a)(iii).”). Complainant claims that Respondent is likely engaging in phishing behavior. The Panel agrees and finds Respondent to have registered and used the disputed domain name in bad faith per Policy ¶ 4(a)(iii).
Complainant has proved this element.
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is ORDERED that the <onlineunfcu.com> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Karl V. Fink (Ret.) Panelist
Dated: November 1, 2017
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