Wells Fargo & Company v. Ken Laidlaw
Claim Number: FA2102001932164
Complainant is Wells Fargo & Company (“Complainant”), represented by Felicia J. Boyd of Norton Rose Fulbright US LLP, Minnesota, USA. Respondent is Ken Laidlaw (“Respondent”), United Kingdom.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <weiisfarg0.com>, registered with Wild West Domains, LLC.
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.
Paul M. DeCicco, as Panelist.
Complainant submitted a Complaint to the Forum electronically on February 15, 2021; the Forum received payment on February 15, 2021.
On February 16, 2021, Wild West Domains, LLC confirmed by e-mail to the Forum that the <weiisfarg0.com> domain name is registered with Wild West Domains, LLC and that Respondent is the current registrant of the name. Wild West Domains, LLC has verified that Respondent is bound by the Wild West Domains, LLC 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 February 18, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 10, 2021 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@weiisfarg0.com. Also on February 18, 2021, 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.
A timely Response was received and determined to be complete on March 5, 2021.
On March 9, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Paul M. DeCicco 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.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant contends as follows:
Complainant, Wells Fargo & Company, provides financial services and related goods to the public.
Complainant has rights in the WELLS FARGO mark based on registration with the United States Patent and Trademark Office (“USPTO”).
Respondent’s <weiisfarg0.com> domain name is confusingly similar to Complainant’s mark because it is simply replaces the letters “LL” with “ii” and the letter “O” with the numeral “0” to create a misspelling of Complainant’s WELLS FARGO mark and adds the “.com” generic top level domain (“gTLD”).
Respondent does not have rights or legitimate interests in the <weiisfarg0.com> domain name. Respondent is not commonly known by the at-issue domain name and Complainant has not licensed Respondent to use the WELLS FARGO mark. Additionally, Respondent does not use the domain for any bona fide offering of goods or services or legitimate noncommercial or fair use because the domain name fails to address an active website.
Respondent registered and uses the <weiisfarg0.com> domain name in bad faith. Respondent engages in typosquatting and fails to make active use of the disputed domain name. Additionally, Respondent has constructive and/or actual notice of Complainant’s rights in the WELLS FARGO mark based on the international fame of the mark.
B. Respondent
Respondent contends as follows:
Respondent is a small business owner with no interest whatsoever in registering or profiting from registering or re-selling web domains. The email address used to contact Respondent is redundant and not regularly checked. The domain name weiisfargo was one of 7 purchased in December 2020 by an unknown / unauthorised person who had illegally accessed Respondent’s Microsoft Office 365 account. Respondent became aware of this activity in January 2021 and took immediate action – Microsoft have disabled these domains and refunded the monies taken from Respondent’s account.
Complainant has trademark rights in WELLS FARGO.
Respondent is not affiliated with Complainant and is not authorized to use the WELLS FARGO mark in any capacity.
The at‑issue domain name was registered after Complainant acquired trademark rights in WELLS FARGO.
The at-issue domain name is held passively.
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.
Respondent takes the position that it is not the real party interest and that an unknown third party registered the domain name, as well as other domain names, after gaining access to its Office 365 account. Nevertheless, the at-issue domain name is confusingly similar to a trademark in which Complainant has rights.
Complainant’s registration of the WELLS FARGO mark with the USPTO sufficiently demonstrates Complainant’s 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)).
Further, the <weiisfarg0.com> domain name contains a misspelled version of Complainant’s WELLS FARGO trademark, less its space, wherein the mark’s “l” characters are each replaced with an “i” character, and the mark’s “o” character is replace by a “0”; the misspelling is followed by a domain name-necessary generic top-level, here “.com”. The slight visual differences between Complainant’s trademark and the at-issue domain name does nothing to distinguish the domain name from Complainant’s trademark under Policy ¶ 4(a)(i). Therefore, the Panel concludes that the <weiisfarg0.com> domain name is confusingly similar to Complainant’s WELLS FARGO trademark. See Morgan Stanley v. Francis Mccarthy / Baltec Marine Llc, FA 1785347 (Forum June 8, 2018) (“The [<morganstonley.com> and <morganstainley.com>] Domain Names are confusingly similar to Complainant’s marks, as they fully incorporate the MORGAN STANLEY mark, varying it only by subtle misspellings, omitting a space between the words, and adding the generic top-level domain (“gTLD”) ‘.com.’”); see also Oxygen Media, LLC v. Primary Source, D2000-0362 (WIPO June 19, 2000) (finding that the domain name <0xygen.com>, with zero in place of letter “O,” “appears calculated to trade on Complainant’s name by exploiting likely mistake by users when entering the url address”).
The Panel finds that Respondent lacks both rights and legitimate interests in respect of the <weiisfarg0.com> domain name. Respondent is not authorized to use Complainant’s trademark in any capacity and effectively admits to having no interest in the domain name. Moreover, there are no Policy ¶ 4(c) circumstances from which the Panel might find that Respondent has rights or interests in respect of the at‑issue domain name.
As mentioned elsewhere, Respondent baldly claims that the at-issue domain name was fraudulently registered by an unknown third party. Respondent offers no support for having rights or legitimate interest in the <weiisfarg0.com> domain name. It also follows that if the nominal Respondent did not in fact register the domain name, as Respondent appears to claim, then it is axiomatic that Respondent has no rights or interest in the domain name under Policy ¶ 4(a)(ii). See General Steel Domestic Sales, LLC d/b/a General Steel Corporation and Anthem Steel Corp., LLC d/b/a Anthem Steel Corporation v. Rodney Chamness, Esq. / ICON Domains, LLC, FA1636155 (Forum Oct. 15, 2015) (finding that a respondent who claims his identity was stolen to register an at-issue domain name has no rights to such domain name).
Further, the WHOIS information for the at-issue domain name identifies <weiisfarg0.com>’s registrant as “Ken Laidlaw.” The record before the Panel contains no evidence that tends to show that Respondent is commonly known by the <weiisfarg0.com> domain name, nor does Respondent make such claim. The Panel therefore concludes that Respondent is not commonly known by the at-issue domain name for the purposes of Policy ¶ 4(c)(ii). See Emerson Electric Co. v. golden humble / golden globals, FA 1787128 (Forum June 11, 2018) (“lack of evidence in the record to indicate a respondent is authorized to use [the] complainant’s mark may support a finding that [the] respondent does not have rights or legitimate interests in the disputed domain name per Policy ¶ 4(c)(ii)”).
Also and as mentioned regarding rights and legitimate interests, the at-issue domain name fails to address any web content and is held passively. This use of the at-issue domain name supports neither a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor a non-commercial or fair use of the domain name under Policy ¶ 4(c)(iii). See CrossFirst Bankshares, Inc. v Yu-Hsien Huang, FA 1785415 (Forum June 6, 2018) (“Complainant demonstrates that Respondent fails to actively use the disputed domain name as it resolves to an inactive website. Therefore, the Panel finds that Respondent fails to actively use the disputed domain name for a bona fide offering of goods or services or legitimate noncommercial or fair use under Policy ¶ 4(c)(i) or (iii).”).
Given the forgoing, Complainant satisfies its initial burden and conclusively demonstrates Respondent’s lack of rights and lack of interests in respect of the at-issue domain name pursuant to Policy ¶ 4(a)(ii).
The <weiisfarg0.com> domain name was registered and used in bad faith. As discussed in the paragraphs below without limitation, circumstance are present which compel the Panel to conclude that the domain name’s registrant acted in bad faith regarding the at-issue domain name pursuant to paragraph 4(a)(iii) of the Policy. The Panel again notes that the nominal Respondent denies it in fact registered the at-issue domain name. However, the determination of the named respondent’s identity in this proceeding is based on the name of the “single person or entity listed in the WHOIS registration information at the time of [the proceeding’s] commencement” per Forum Supplemental Rule 1(d).
First and as mentioned elsewhere regarding rights and legitimate interests, the <weiisfarg0.com> domain name is held passively. Browsing to the domain name returns an error message. Passively holding the <weiisfarg0.com> domain name is indicative of bad faith registration and use of the domain name pursuant to Policy ¶ 4(a)(iii). See CommScope, Inc. of North Carolina v. Zhuang Yan / WANGYONG, FA 1764026 (Forum Feb. 14, 2018) (“Respondent’s domain names do not have resolving websites. Using a domain name to resolve to an inactive website (or no website at all) indicates bad faith registration and use.”).
Moreover, the domain name shows typosquatting on its face. Typosquatting is a practice whereby a domain name registrant deliberately introduces typographical errors or misspellings into a trademark, or perhaps into a domain name or other mark related to or sponsored by the target trademark holder, and then registers the resulting string in a domain name. The domain name registrant hopes that internet users will: 1) inadvertently type the malformed string when searching for content related to the domain name’s target trademark and/or, 2) in viewing the domain name will confuse the domain name with its target trademark. The registrant then may use the confusion to inappropriately capitalize on the target trademark’s goodwill. The <weiisfarg0.com> domain name is visually similar to Complainant’s trademark and to Complainant’s actual domain name and is apt to be confused with Complainant’s trademark and Complainant’s official website when read. Typosquatting, in itself, indicates bad faith under Policy ¶ 4(a)(iii). See Computerized Sec. Sys., Inc. v. Hu, FA 157321 (Forum June 23, 2003) (finding that the respondent engaged in typosquatting, which is evidence of bad faith registration and use under Policy ¶ 4(a)(iii)).
Finally, the <weiisfarg0.com> domain name was registered and is held knowing that Complainant has trademark rights in WELLS FARGO. Such prior knowledge is evident from the notoriety of Complainant’s trademark and from the overt misspelling of the WELLS FARGO mark in the at-issue domain name. Therefore, the Panel finds that the <weiisfarg0.com> domain name was intentionally registered to improperly exploit its trademark value. Prior knowledge of Complainant's trademark further demonstrates that the domain name was registered and used in bad faith pursuant to Policy ¶ 4(a)(iii). See Minicards Vennootschap Onder FIrma Amsterdam v. Moscow Studios, FA 1031703 (Forum Sept. 5, 2007) (holding that respondent registered a domain name in bad faith under Policy ¶ 4(a)(iii) after concluding that respondent had "actual knowledge of Complainant's mark when registering the disputed domain name"); see also Finex Inc. v. xu shuaiwei, FA 1760249 (Forum Jan. 1, 2018) (“Respondent’s prior knowledge is evident from the notoriety of Complainant’s BITFINEX trademark as well as from Respondent’s use of its trademark laden domain name to direct internet traffic to a website which is a direct competitor of 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 <weiisfarg0.com> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: March 10, 2021
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