The Clearing House Payments Company L.L.C. v. ADRA PAUL
Claim Number: FA2203001987600
Complainant is The Clearing House Payments Company L.L.C. (“Complainant”), represented by Mary Grace Gallagher of Alston & Bird, LLP, Georgia, USA. Respondent is ADRA PAUL (“Respondent”), Benin.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <theclearinghouse.online>, registered with NameSilo, LLC.
Hon. Karl v. Fink (Ret.) as Panelist.
Complainant submitted a Complaint to the Forum electronically on March 9, 2022; the Forum received payment on March 9, 2022.
On March 10, 2022, NameSilo, LLC confirmed by e-mail to the Forum that the <theclearinghouse.online> domain name is registered with NameSilo, LLC and that Respondent is the current registrant of the name. NameSilo, LLC has verified that Respondent is bound by the NameSilo, 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 March 10, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 30, 2022 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@theclearinghouse.online. Also on March 10, 2022, 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.
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 Clearing House Payments Company L.L.C., provides various services within the financial industry, including electronic check clearing. Complainant has rights in the THE CLEARING HOUSE mark based upon registration with the United States Patent and Trademark Office (“USPTO”) (e.g., 4,132,217, registered Apr. 24, 2012). The <theclearinghouse.online> domain name is confusingly similar to Complainant’s mark because Respondent has incorporated the entire mark, merely adding the “.online” generic top level domain (“gTLD”).
Respondent does not have rights or legitimate interests in the <theclearinghouse.online> domain because Respondent is not commonly known by the disputed domain name and is not authorized to use Complainant’s THE CLEARING HOUSE mark. Additionally, Respondent fails to use the disputed domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use because Respondent uses the disputed domain in a phishing scheme and to pass itself off as affiliated with Complainant.
Respondent has registered and uses the <theclearinghouse.online> domain name in bad faith because Respondent registered and uses the disputed domain name to (1) pass itself off as affiliated with Complainant, (2) host malicious software, and (3) phish for consumers’ personal information. Additionally, Respondent had knowledge of Complainant’s rights in the THE CLEARING HOUSE mark prior to registering the domain.
B. Respondent
Respondent failed to submit a Response in this proceeding.
For the reasons set forth below, based upon the uncontested allegations and evidence, the Panel finds that Complainant is entitled to the requested relief of transfer of the <theclearinghouse.online> 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 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 asserts rights in the THE CLEARING HOUSE mark based on registration with the United States Patent and Trademark Office. Registration with the USPTO is generally sufficient to establish rights in a mark per Policy ¶ 4(a)(i). 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). Complainant provides evidence of its registration with the USPTO for the THE CLEARING HOUSE mark (e.g., 4,132,217, registered Apr. 24, 2012. The Panel finds that Complainant has rights in the THE CLEARING HOUSE mark under Policy ¶ 4(a)(i).
The <theclearinghouse.online> domain name is confusingly similar to Complainant’s mark because Respondent has incorporated the entire mark, omitting the spaces in the mark, and merely adding the “.online” generic top level domain (“gTLD”). Domain names which incorporate the entire mark are considered confusingly similar, while deleting spaces and adding a gTLD creates no distinction between a complainant’s mark and a disputed domain name under Policy ¶ 4(a)(i). See Rockwell Automation v. Zhao Ke, FA 1760051 (Forum Jan. 2, 2018) (“The disputed domain name <rockwellautomation.co> corresponds to Complainant's registered ROCKWELL AUTOMATION mark, with the space omitted and the ".co" top-level domain appended thereto. These alterations do not distinguish the domain name from Complainant's mark for purposes of the Policy.”). Respondent has made the changes identified above and these changes do not create a sufficient distinction between Complainant’s mark and the disputed domain name. The Panel finds that Respondent’s 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), then the burden shifts to Respondent to show it does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests”). The Panel finds that Complainant has made a prima facie case.
Complainant claims that Respondent does not have rights or legitimate interests in the <theclearinghouse.online> domain name because Respondent is not commonly known by the disputed domain name and is not associated with Complainant or authorized to use Complainant’s THE CLEARING HOUSE mark. When no response is submitted, WHOIS information can be used to show that a respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Wells Fargo & Co. v. Onlyne Corp. Services11, Inc., FA 198969 (Forum Nov. 17, 2003) (“Given the WHOIS contact information for the disputed domain [name], one can infer that Respondent, Onlyne Corporate Services11, is not commonly known by the name ‘welsfargo’ in any derivation.”). Additionally, lack of authorization to use a complainant’s mark may demonstrate the respondent is not commonly known by the disputed domain name. See Indeed, Inc. v. Ankit Bhardwaj / Recruiter, FA 1739470 (Forum Aug. 3, 2017) (”Respondent lacks both rights and legitimate interests in respect of the at-issue domain name. Respondent is not authorized to use Complainant’s trademark in any capacity and, as discussed below, 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.”). There is no evidence available in the WHOIS information to suggest that Respondent is known by <theclearinghouse.online> and no information suggests Complainant authorized Respondent to use the THE CLEARING HOUSE mark. Rather, the WHOIS information lists the registrant of the domain as “ADRA PAUL.” The Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).
Complainant argues that Respondent does not use the <theclearinghouse.online> domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use. Under Policy ¶¶ 4(c)(i) and (iii), past panels have found no bona fide offering of goods or services, nor any legitimate noncommercial or fair use where the respondent uses the domain name to pass itself off as affiliated with the complainant. See Bittrex, Inc. v. Caroline Alves Maia, FA 1796113 (Forum Aug. 6, 2018) (finding the respondent’s attempt to pass itself of as the complainant was not 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) when the respondent used the disputed domain name to present users with a website that was “virtually identical, with the same color scheme, the same layout and the same substantive content.”). There are several similarities between Complainant’s and Respondent’s resolving webpages. Respondent’s resolving webpage displays Complainant’s name, mark, and logo. The website also features the same blue and orange color scheme and similar layout with similarly labeled tabs. This is evidence that Respondent has failed to make a bona fide offering of goods or services or legitimate noncommercial or fair use per Policy ¶ 4(c)(i) or (iii).
Complainant argues that Respondent does not use the <theclearinghouse.online> domain name in connection to a bona fide offering of goods or services or a legitimate noncommercial or fair use because the domain is used in a phishing scheme. Using a confusingly similar domain name to phish for consumers’ personal information is evidence that the respondent lacks legitimate interests and rights in the domain name. See Blackstone TM L.L.C. v. Mita Irelant Ltd., FA 1314998 (Forum Apr. 30, 2010) (“The Panel finds that Respondent’s attempt to “phish” for users’ personal information is neither a bona fide offering of goods and services pursuant to Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).”). Complainant argues that Respondent uses the domain in a phishing scheme because once at the resolving webpage, visitors are asked to create an account; to do so visitors must input personal information. The Panel finds that Respondent has failed to make a bona fide offering of goods or services or legitimate noncommercial or fair use per Policy ¶ 4(c)(i) or (iii) and Respondent has no rights or legitimate interests in respect of the domain name,
Complainant has proved this element.
Complainant argues that Respondent has registered and uses the <theclearinghouse.online> domain in bad faith. Registration and use of a confusingly similar domain name in furtherance of a phishing scheme and to pass one’s self off as affiliated with a complainant is evidence of bad faith per Policy ¶ 4(a)(iii) and 4(b)(iv), respectively. See Morgan Stanley v. Bruce Pu, FA 1764120 (Forum Feb. 2, 2018) (“[T]he screenshot of the resolving webpage allows users to input their name and email address, which Complainant claims Respondent uses that to fraudulently phish for information. Thus, the Panel agrees that Respondent phishes for information and finds that Respondent does so in bad faith under Policy ¶ 4(a)(iii).”); see also Bittrex, Inc. v. Wuxi Yilian LLC, FA 1760517 (Forum Dec. 27, 2017) (finding bad faith per Policy ¶ 4(b)(iv) where “Respondent registered and uses the <lbittrex.com> domain name in bad faith by directing Internet users to a website that mimics Complainant’s own website in order to confuse users into believing that Respondent is Complainant, or is otherwise affiliated or associated with Complainant.”). Respondent’s resolving webpage shares similarities with Complainant’s website and Complainant argues that Respondent uses the webpage to pass itself off as affiliated with Complainant. Complainant further argues that by passing itself off as affiliated with Complainant, Respondent can lure confused consumers to its domain where Respondent asks users to input personal information for use in a phishing scheme. This is evidence that Respondent has registered and uses the disputed domain in bad faith per Policy ¶ 4(a)(iii) and 4(b)(iv).
Complainant also argues that Respondent has registered and uses the <theclearinghouse.online> domain in bad faith because it registered and uses the domain to host malicious software which is evidence of bad faith. See Asbury Communities, Inc. v. Tiffany Hedges, FA 1785054 (Forum June 18, 2018) (“The Panel here finds that Respondent [installation of malware] further support the conclusion that Respondent registered and used the <asburymethodistvillage.com> domain name in bad faith under Policy ¶ 4(a)(iii)”). Complainant argues that Respondent has imbedded malicious software in the resolving website. This is evidence of bad faith under Policy ¶ 4(a)(iii).
Complainant also argues that Respondent has registered and uses the <theclearinghouse.online> domain in bad faith because Respondent had knowledge of Complainant’s rights in the THE CLEANING HOUSE mark prior to registering the disputed domain name. While constructive knowledge alone is not sufficient to establish bad faith, actual knowledge is evidence of bad faith under Policy ¶ 4(a)(iii). See Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum Feb. 6, 2014) (“The Panel notes that although the UDRP does not recognize ‘constructive notice’ as sufficient grounds for finding Policy ¶ 4(a)(iii) bad faith, the Panel here finds actual knowledge through the name used for the domain and the use made of it.”); 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 argues that Respondent had actual knowledge of its rights in the mark given Respondent’s attempt to pass itself off as affiliated with Complainant. The Panel finds that Respondent has registered and uses the disputed domain in bad faith under 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 <theclearinghouse.online> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Karl V. Fink (Ret.) Panelist
April 12, 2022
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