Webster Financial Corporation and Webster Bank, National Association v. Lyndon Sam
Claim Number: FA1903001833322
Complainant is Webster Financial Corporation and Webster Bank, National Association (“Complainant”), represented by Gail Podolsky of Carlton Fields Jorden Burt, P.A., Connecticut, USA. Respondent is Lyndon Sam (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <websreronline.com>, registered with LCN.COM 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.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on March 11, 2019; the Forum received payment on March 11, 2019.
On March 13, 2019, LCN.COM Ltd. confirmed by e-mail to the Forum that the <websreronline.com> domain name is registered with LCN.COM Ltd. and that Respondent is the current registrant of the name. LCN.COM Ltd. has verified that Respondent is bound by the LCN.COM 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 March 13, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 2, 2019 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@websreronline.com. Also on March 13, 2019, 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 April 3, 2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Richard Hill 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 states that it offers a wide range of banking and financial services, including online banking, checking account, and mortgage loan services. Complainant has rights in the WEBSTER and WEBSTERONLINE.COM marks through its registration of the marks in the United States in, respectively, 2007 and 2008.
Complainant alleges that the disputed domain name is identical or confusingly similar to Complainant’s marks as it merely substitutes the letter “t” in the mark with the letter “r.” Complainant cites UDRP precedents to support its position.
According to Complainant, Respondent has no rights or legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name, nor has Complainant authorized, licensed, or otherwise permitted Respondent to use the mark. Respondent does not use the disputed domain name in connection with a bona fide offering of goods or services or legitimate noncommercial or fair use. Rather, the resolving webpage contains links to financial services offerings in direct competition with those offered by Complainant. Complainant cites UDRP precedents to support its position.
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith. Respondent disrupts Complainant’s business by intentionally attempting to divert, for commercial gain, Internet users to Respondent’s website by creating a likelihood of confusion with Complainant’s WEBSTER marks as to the source, sponsorship, affiliation, and endorsement of the services offered through the links displayed on Respondent’s website. Further, Respondent engaged in typosquatting by intentionally misspelling Complainant’s mark within the domain name. Additionally, Respondent had actual or constructive knowledge of Complainant’s rights in the marks prior to registering the domain name. Complainant cites UDRP precedents to support its position.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns the marks WEBSTER and WEBSTERONLINE.COM and uses them to market a wide range of banking and financial services.
Complainant’s rights in its marks date back to, respectively, 2007 and 2008.
The disputed domain name was registered in 2018.
Complainant has not licensed or otherwise authorized Respondent to use its marks.
The resolving website contains links to products and services that compete with those of Complainant.
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.”).
Preliminary Issue: Multiple Complainants
In the instant proceedings, there are two Complainants: Webster Financial Corporation and Webster Bank, National Association. Complainant Webster Financial Corporation is a Delaware corporation headquartered in Waterbury, Connecticut. Complainant Webster Bank, National Association is a federally-chartered national bank and a wholly-owned subsidiary of Complainant Webster Financial Corporation.
Paragraph 3(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”) provides that “[a]ny person or entity may initiate an administrative proceeding by submitting a complaint.” The Forum’s Supplemental Rule 1(e) defines “The Party Initiating a Complaint Concerning a Domain Name Registration” as a “single person or entity claiming to have rights in the domain name, or multiple persons or entities who have a sufficient nexus who can each claim to have rights to all domain names listed in the Complaint.”
Previous panels have interpreted the Forum’s Supplemental Rule 1(e) to allow multiple parties to proceed as one party where they can show a sufficient link to each other. For example, in Vancouver Org. Comm. for the 2010 Olympic and Paralymic Games & Int’l Olympic Comm. v. Malik, FA 666119 (Forum May 12, 2006), the panel stated:
It has been accepted that it is permissible for two complainants to submit a single complaint if they can demonstrate a link between the two entities such as a relationship involving a license, a partnership or an affiliation that would establish the reason for the parties bringing the complaint as one entity.
In Tasty Baking, Co. & Tastykake Invs., Inc. v. Quality Hosting, FA 208854 (Forum Dec. 28, 2003), the panel treated the two complainants as a single entity where both parties held rights in trademarks contained within the disputed domain names. Likewise, in Am. Family Health Srvs. Group, LLC v. Logan, FA 220049 (Forum Feb. 6, 2004), the panel found a sufficient link between the complainants where there was a license between the parties regarding use of the TOUGHLOVE mark.
The Panel accepts that the evidence in the Complaint is sufficient to establish a sufficient nexus or link between the Complainants, therefore it will treat them all as a single entity in this proceeding. In this decision, the Complainants will be collectively referred to as “Complainant.”
The disputed domain name is confusingly similar to Complainant’s marks as it merely substitutes the letter “t” in the marks with the letter “r,” and adds the term “online” as well as the “.com” generic top-level domain (“gTLD”). Misspellings of a mark and/or the addition of terms and a gTLD have generally failed to sufficiently distinguish a domain name for the purposes of Policy ¶ 4(a)(i). See MTD Products Inc. v. J Randall Shank, FA 1783050 (Forum June 27, 2018) (“The disputed domain name is confusingly similar to Complainant’s mark as it wholly incorporates the CUB CADET mark before appending the generic terms ‘genuine’ and ‘parts’ as well as the ‘.com’ gTLD.”); see also TPI Holdings, Inc. v. LaPorte Holdings, D2006-0235, (WIPO Apr. 6, 2006) (finding <traderonlne.com> confusingly similar to complainant’s TRADER ONLINE registered mark). As such, the Panel finds that the <websreronline.com> domain name is confusingly similar to the WEBSTER and WEBSTERONLINE.COM marks under Policy ¶ 4(a)(i).
Complainant has not authorized, licensed, or otherwise permitted Respondent to use its marks. Respondent is not commonly known by the disputed domain name: absent a response, relevant information includes the WHOIS, assertions by a complainant regarding the nature of its relationship with a respondent, and other evidence in the record to support these assertions. See 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); see also Google LLC v. Bhawana Chandel / Admission Virus, FA 1799694 (Forum Sep. 4, 2018) (concluding that Respondent was not commonly known by the disputed domain name where “the WHOIS of record identifies the Respondent as “Bhawana Chandel,” and no information in the record shows that Respondent was authorized to use Complainant’s mark in any way.”). Here, the WHOIS identifies “Lyndon Sam” as the registrant. Accordingly, the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).
The resolving webpage contains links to financial services offerings in direct competition with those offered by Complainant. Specifically, Complainant provides a screenshot of the resolving webpage, which displays “RELATED LINKS” such as “Online Banking” and “Open Checking Account Online.” Using a domain name to display hyperlinks to services relating to a complainant generally does not amount to any bona fide offering of goods or services or a legitimate noncommercial or fair use. See Barclays PLC v. Antwan Barnes, FA 1806411 (Forum Oct. 20, 2018) (“Using a domain name to offer links to services in direct competition with a complainant does not constitute a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii).”). Accordingly, the Panel finds that Respondent fails to use the disputed domain name for a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii).
Respondent (who did not reply to Complainant’s contentions) has not presented any plausible explanation for its use of Complainant’s mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain name.
Indeed, as already noted, Respondent disrupts Complainant’s business by intentionally attempting to divert, for commercial gain, Internet users to Respondent’s website by creating a likelihood of confusion with Complainant’s WEBSTER marks as to the source, sponsorship, affiliation, and endorsement of the services offered through the competing links displayed on Respondent’s website. Using a confusingly similar domain name to display competing links can evince bad faith under Policy ¶¶ 4(b)(iii) & (iv). See Transamerica Corporation v. Carolina Rodrigues / Fundacion Comercio Electronico, FA 1798316 (Forum Aug. 20, 2018) (“Respondent's use of the domain name to link to competitors of Complainant, presumably generating pay-per-click or referral fees for Respondent, is indicative of bad faith under paragraphs 4(b)(iii) and 4(b)(iv).”). Accordingly, the Panel finds that Respondent registered and is using the disputed domain name in bad faith under Policy ¶¶ 4(b)(iii) & (iv).
Further, Respondent engaged in typosquatting by intentionally misspelling Complainant’s mark within the domain name. A finding of typosquatting can evince bad faith under Policy ¶ 4(a)(iii). See Adorama, Inc. v. Moniker Privacy Services, FA1503001610020 (Forum May 1, 2015) (“Respondent has also engaged in typosquatting, which is additional evidence of bad faith registration and use under Policy ¶ 4(a)(iii). Respondents who capitalize on common typing errors engage in bad faith registration under Policy ¶ 4(a)(iii).”). Thus, the Panel finds that Respondent’s misspelling of Complainant’s mark in the domain name further demonstrates Respondent’s bad faith.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <websreronline.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: April 4, 2019
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