Thrivent Financial for Lutherans v. Robert / Robert torres Anthony
Claim Number: FA1907001853442
Complainant is Thrivent Financial for Lutherans (“Complainant”), represented by William Schultz of Merchant & Gould, P.C., Minnesota, USA. Respondent is Robert / Robert torres Anthony (“Respondent”), Louisiana, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <thriventassets.com>, registered with Hostinger, UAB.
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 A. Einhorn appointed as Panelist.
Complainant submitted a Complaint to the Forum electronically on July 23, 2019; the Forum received payment on July 23, 2019.
On July 24, 2019, Hostinger, UAB confirmed by e-mail to the Forum that the <thriventassets.com> domain name is registered with Hostinger, UAB and that Respondent is the current registrant of the name. Hostinger, UAB has verified that Respondent is bound by the Hostinger, UAB 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 July 29, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 19, 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@thriventassets.com. Also on July 29, 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 August 22, 2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed David A. Einhorn 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, Thrivent Financial for Lutherans, is a provider of numerous insurance products and financial services. Complainant has rights in the THRIVENT mark based upon the registration with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 2,815,440, registered Feb. 17, 2004). Respondent’s <thriventassets.com> is confusingly similar to Complainant’s mark as Respondent merely adds the generic term “assets” and the “.com” generic top-level domain (“gTLD”) to Complainant’s mark.
Respondent does not have rights or legitimate interests in the <thriventassets.com> domain name. Respondent is not permitted or licensed to use Complainant’s THRIVENT mark and is not commonly known by the disputed domain name. Additionally, Respondent is not using the disputed domain name to make a bona fide offering of goods or services or for a legitimate non-commercial or fair use. Rather, Respondent uses the <thriventassets.com> domain name to disrupt Complainant’s business by attempting to offer services that compete with Complainant’s business. Further, Respondent attempts to phish for Internet users’ personal information.
Respondent has registered and uses the <thriventassets.com> domain name in bad faith. Respondent attempts to disrupt Complainant’s business by impersonating Complainant as part of an email phishing scheme. Finally, Respondent had knowledge of Complainant’s THRIVENT mark prior to registering the <thriventassets.com> domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding. The Panel notes that the disputed domain name was registered on April 22, 2019.
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 set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
Complainant claims rights to the THRIVENT mark based upon registration with the USPTO. Registration with the USPTO sufficiently establishes rights in a mark under Policy ¶ 4(a)(i). See Haas Automation, Inc. v. Jim Fraser, FA 1627211 (Forum Aug. 4, 2015) (finding that Complainant’s USPTO registrations for the HAAS mark sufficiently demonstrate its rights in the mark under Policy ¶ 4(a)(i)). Complainant provides copies of its USPTO registrations for the THRIVENT mark (e.g., Reg. No. 2,815,440, registered Feb. 17, 2004). Therefore, the Panel finds that Complainant has rights in the THRIVENT mark per Policy ¶ 4(a)(i).
Complainant next claims that Respondent’s <thriventassets.com> domain name is confusingly similar to Complainant’s THRIVENT mark as Respondent merely adds a modifier and a gTLD to the mark. Additions of a generic and/or descriptive terms and a gTLD to a complainant’s mark does not negate any confusing similarity between a disputed domain name and mark under Policy ¶ 4(a)(i). See Microsoft Corporation v. Thong Tran Thanh, FA 1653178 (Forum Jan. 24, 2016) (determining that confusing similarity exist where [a disputed domain name] contains Complainant’s entire mark and differs only by the addition of a generic or descriptive phrase and top-level domain, the differences between the domain name and its contained trademark are insufficient to differentiate one from the other for the purposes of the Policy.). Complainant argues Respondent merely adds the term “assets”, and a “.com” gTLD to Complainant’s THRIVENT mark. The Panel agrees with Complainant and finds that the <thriventassets.com> does not contain changes that would sufficiently distinguish it from the THRIVENT mark per Policy ¶ 4(a)(i).
Complainant argues that Respondent has no rights or legitimate interests in <thriventassets.com> domain name. Specifically Complainant argues that Respondent is not licensed or authorized to use the THRIVENT mark and 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 the disputed domain name under Policy ¶ 4(c)(ii). See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1574905 (Forum Sept. 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark.). Additionally, lack of authorization to use a complainant’s mark may demonstrate the respondent is not commonly known by the disputed domain name. See Navistar International Corporation v. N Rahmany, FA1620789 (Forum June 8, 2015) (finding that the respondent was not commonly known by the disputed domain name where the complainant had never authorized the respondent to incorporate its NAVISTAR mark in any domain name registration). The WHOIS information of record identifies Respondent as “Robert / Robert torres Anthony,” and there is no other evidence to suggest Respondent was authorized to use the THRIVENT mark. The Panel therefore finds that Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii).
In addition, Complainant argues that Respondent uses the <thriventassets.com> domain name to redirect users to Respondent’s competing website. Use of a disputed domain name to offer competing products and services may not amount to a bona fide offering of goods or services or a legitimate noncommercial or fair use of the name under Policy ¶¶ 4(c)(i) or (iii). See General Motors LLC v. MIKE LEE, FA 1659965 (Forum Mar. 10, 2016) (finding that “use of a domain to sell products and/or services that compete directly with a complainant’s business 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).”). Complainant argues that Respondent’s domain name is directed to a commercial website that provides services related to Complainant’s investment services. The site purportedly offers trading, crypto trading, and digital assets markets services. The Panel finds that Respondent’s use of the <thriventassets.com> domain name to offer competing services is not a bona fide offering of goods or services or legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii).
In addition, Complainant claims Respondent attempts to impersonate Complainant as part of a fraudulent scheme. Use of an email address associated with the disputed domain name to pass off as a complainant in furtherance of phishing is not indicative of rights or legitimate interests in the name per Policy ¶¶ 4(c)(i) or (iii). See Abbvie, Inc. v. James Bulow, FA 1701075 (Forum Nov. 30, 2016) (“Respondent uses the at-issue domain name to pose as Complainant’s CEO by means of email addresses at the confusingly similar domain name in an attempt to determine Complainant’s ability to process a transfer. Using the domain name in this manner is neither a bona fide offering of goods and services under Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii)”). Here, Complainant claims that Respondent uses an email address associated with the disputed domain name to impersonate Complainant and sends phishing e-mails to Complainant’s customers that are designed to solicit payment information under false pretenses. Complainant provides emails sent by Respondent concerning this alleged phishing scheme. Thus, the Panel agrees that Respondent’s use of the domain name indicates that it lacks rights and legitimate interests in the disputed domain name per Policy ¶¶ 4(c)(i) or (iii).
Complaint has therefore satisfied Policy ¶ 4(a)(ii)
Complainant argues that Respondent has registered and uses the <thriventassets.com> domain name in bad faith. Complainant alleges that Respondent attempts to disrupt Complainant’s business. Specifically, Complainant argues that Respondent is attempting to impersonate Complainant as part of an email phishing scheme, presumably for commercial gain. Use of a domain name to impersonate a complainant in furtherance of a fraudulent scheme may constitute bad faith pursuant to Policy ¶¶ 4(b)(iii) and/or (iv). See Abbvie, Inc. v. James Bulow, FA 1701075 (Forum Nov. 30, 2016) (“Respondent uses the <abbuie.com> domain name to impersonate Complainant’s CEO. Such use is undeniably disruptive to Complainant’s business and demonstrates bad faith pursuant to Policy ¶ 4(b)(iii), and/or Policy ¶ 4(b)(iv)”); see also Monsanto Co. v. Decepticons, FA 101536 (Forum Dec. 18, 2001) (finding that the respondent's use of <monsantos.com> to misrepresent itself as the complainant and to provide misleading information to the public supported a finding of bad faith). As previously indicated, Complainant claims that Respondent uses an email address associated with the disputed domain name to impersonate Complainant and send phishing e-mails to Complainant’s customers, presumably designed to solicit information under false pretenses. Complainant provided emails sent by Respondent regarding the fraudulent email scheme. Therefore, the Panel finds that Respondent registered and uses the disputed domain name in bad faith per Policy ¶¶ 4(b)(iii) and/or (iv).
Complainant claims that Respondent’s use of the <thriventassets.com> domain name to pass off as Complainant in order to compete with Complainant’s business demonstrates that Respondent registered and used the domain name in bad faith. Use of a domain name to create a false impression of affiliation with a complainant in order to compete with and disrupt the complainant’s business is behavior indicative of bad faith registration and use per Policy ¶ 4(b)(iv). See Citadel LLC and its related entity, KCG IP Holdings, LLC v. Joel Lespinasse / Radius Group, FA1579141 (Forum Oct. 15, 2014) (“Here, the Panel finds evidence of Policy ¶ 4(b)(iv) bad faith as Respondent has used the confusingly similar domain name to promote its own financial management and consulting services in competition with Complainant.”). Complainant claims the at-issue domain name resolves to a website that purportedly offers trading, crypto trading, and digital assets markets services. The Panel therefore finds that Respondent registered and used the domain name in bad faith per Policy ¶ 4(b)(iv).
Finally, Complainant argues that Respondent registered the <thriventassets.com> domain name with actual knowledge of Complainant’s rights in the THRIVENT mark. Registering a domain name with knowledge of another’s rights therein may be indicative of bad faith under Policy ¶ 4(a)(iii). See Norgren GmbH v. Domain Admin / Private Registrations Aktien Gesellschaft, FA1599884 (Forum Feb. 25, 2014) (holding that the respondent had actual knowledge of the complainant and its rights in the mark, thus demonstrating bad faith registration under Policy ¶ 4(a)(iii), where the respondent was using the disputed domain name to purposely host links related to the complainant’s field of operation). Here, Complainant argues that Respondent’s knowledge of Complainant’s mark prior to registering <thriventassets.com> is apparent from Respondent’s use of the domain name to redirect users to its own website where it offers competing services. The Panel agrees, and finds that Respondent registered the <thriventassets.com> domain name with actual knowledge of Complainant’s THRIVENT mark, thus demonstrating bad faith per Policy ¶ 4(a)(iii).
Thus, Complaint has also satisfied Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED
Accordingly, it is Ordered that the <thriventassets.com> domain name be TRANSFERRED from Respondent to Complainant
David A. Einhorn, Panelist
Dated: September 5, 2019
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