TELUS Corporation v. Peter Ogali / Enternija
Claim Number: FA2305002044748
Complainant is TELUS Corporation (“Complainant”), represented by Jordan LaVine of Flaster Greenberg PC, Pennsylvania, USA. Respondent is Peter Ogali / Enternija (“Respondent”), Nigeria.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <xtelusprofit.com>, registered with OwnRegistrar, Inc..
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 Forum electronically on May 16, 2023; Forum received payment on May 16, 2023.
On May 16, 2023, OwnRegistrar, Inc. confirmed by e-mail to Forum that the <xtelusprofit.com> domain name is registered with OwnRegistrar, Inc. and that Respondent is the current registrant of the name. OwnRegistrar, Inc. has verified that Respondent is bound by the OwnRegistrar, Inc. 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 May 17, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 6, 2023 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@xtelusprofit.com. Also on May 17, 2023, 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, Forum transmitted to the parties a Notification of Respondent Default.
On June 7, 2023, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Richard Hill as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that 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, 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 is Canada’s fastest-growing national telecommunications company and a public company that is traded on the Toronto Stock Exchange (TSX: T) and the New York Stock Exchange (NYSE: TU). Complainant is a dynamic, world-leading communications technology company with more than $14 billion in annual revenue. Complainant leverages its global-leading technology and compassion to enable remarkable human outcomes. Complainant’s long-standing commitment to putting its customers first fuels every aspect of its business, making it a distinct leader in customer service excellence and loyalty. Complainant provides services in specific areas, using its TELUS mark: TELUS Health is Canada’s leader in digital health technology, TELUS Agriculture provides innovative digital solutions throughout the agriculture value chain, and TELUS International is a leading digital customer experience innovator that delivers next-generation AI and content management solutions for global brands. In addition, and more specific to its TELUS International business, Complainant provides throughout the world, including in the United States, a variety of technology related services through its robust telecommunications infrastructure. More specifically, TELUS International provides customer experience and digital enablement transformation through its customer care and business services business, and designs, builds and delivers next-generation digital solutions to enhance the customer experience for clients across high-growth industry verticals. Complainant’s legitimate website has an icon that website visitors can click to support and make donations to victims of wildfires in the Alberta province of Canada. Complainant asserts rights in the TELUS Mark based upon its registration in Canada in 1993.
Complainant alleges that the disputed domain name is identical or confusingly similar to its TELUS mark because it incorporates the mark in its entirety, merely adding the prefix letter “x” and the suffix generic/descriptive term “profit” as well as the generic top level domain (“gTLD”) “.com”.
According to Complainant, Respondent lacks rights or legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name, nor has Respondent been authorized by Complainant to use its TELUS mark. Respondent does not use the disputed domain name in connection with a bona fide offering of goods or services, or a legitimate noncommercial or fair use. Instead, the resolving website purports to offer financial services, but attempting to sign-up for an investment plan only results in a person being asked to provide personal contact information and financial account information; accordingly, the website appears to be aimed at collecting the personal information of unwitting individuals. Further, Respondent has brazenly created a website intended to impersonate Complainant’s legitimate website through making the website look, upon cursory review, exactly like website, including containing photographs of Complainant’s Chief Executive Officer (and claim him to be Respondent’s Chief Executive Officer) and other of Complainant’s employees, with certain photos of Complainant’s employees manipulated to include the graphic that Respondent uses for the fake company name it displays on the resolving website. The resolving website prompts the user to donate to the victims of the recent earthquake in Turkey and Syria, and has a sign-up page where users provide their cryptocurrency wallet information; thus Respondent was conducting a scam to fraudulently transfer assets from unsuspecting consumers under the guise that the website being affiliated with Complainant when it is not.
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith. Respondent has created a likelihood of confusion as to the source of the resolving website. Respondent is impersonating Complainant and its CEO. Respondent is seeking scam donations and personal account information of consumers. Respondent has been involved in a prior UDRP proceeding.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant failed to provide the WHOIS information for the disputed domain name, whereas the date of the registration of the disputed domain name is an essential fact that must be taken into account by the Panel.
According to paragraph 4.8 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Jurisprudential Overview 3.0”), a Panel may conduct limited factual research regarding disputed domain names:
Noting in particular the general powers of a panel articulated inter alia in paragraphs 10 and 12 of the UDRP Rules, it has been accepted that a panel may undertake limited factual research into matters of public record if it would consider such information useful to assessing the case merits and reaching a decision.
This may include visiting the website linked to the disputed domain name in order to obtain more information about the respondent or its use of the domain name, consulting historical resources such as the Internet Archive (www.archive.org) in order to obtain an indication of how a domain name may have been used in the relevant past, reviewing dictionaries or encyclopedias (e.g., Wikipedia), or accessing trademark registration databases.
The Panel has consulted the publicly available WHOIS information and finds that the disputed domain name was registered in 2021.
Based on its research, the Panel finds that the US address given for Respondent’s business on the resolving website is not a legitimate business address. Further, the telephone number for Respondent’s business displayed on the resolving website “+31687612578” is not a valid US telephone number (even if one assumes that a leading 1 was mistakenly omitted).
Complainant owns the mark TELUS and uses it to provide telecommunication services.
Complainant’s rights in its mark date back to 1993.
The disputed domain name was registered in 2021.
Complainant has not licensed or otherwise authorized Respondent to use its marks.
The resolving website purports to offer financial services, but attempting to sign-up for an investment plan only results in a person being asked to provide personal contact information and financial account information. The resolving website prompts users to donate to the victims of the recent earthquake in Turkey and Syria, and has a sign-up page where users provide their cryptocurrency wallet information. The resolving website displays photographs of Complainant’s Chief Executive Officer (and claims him to be Respondent’s Chief Executive Officer) and other of Complainant’s employees, with certain photos of Complainant’s employees manipulated to include the graphic that Respondent uses for the company name it displays on the resolving website. The address and telephone number displayed on the resolving website are not legitimate.
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”).
The disputed domain name incorporates Complainant’s TELUS mark in its entirety, merely adding the prefix letter “x” and the suffix generic/descriptive term “profit” as well as the generic top level domain (“gTLD”) “.com”. Under Policy ¶ 4(a)(i), adding a gTLD and/or generic terms and/or relevant or meaningless letters is generally insufficient in differentiating a disputed domain name from the mark it incorporates. See Bloomberg Finance L.P. v. Nexperian Holding Limited, FA 1782013 (Forum June 4, 2018) (“Where a relevant trademark is recognisable within a disputed domain name, the addition of other terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) does not prevent a finding of confusing similarity under the first element.”); see also Vanguard Group Inc. v. Proven Fin. Solutions, FA 572937 (Forum Nov. 18, 2005) (holding that the addition of both the word “advisors” and the gTLD “.com” did not sufficiently alter the disputed domain name to negate a finding of confusing similarity under Policy ¶ 4(a)(i)); see also Home Depot Product Authority, LLC v. Angelo Kioussis, FA 1784554 (Forum June 4, 2018) (“The domain name contains the mark in its entirety, with only the addition of the generic letters ‘sb’ and the digits ‘2018,’ plus the generic Top Level Domain (“gTLD”) ‘.com.’ These alterations of the mark, made in forming the domain name, do not save it from the realm of confusing similarity under the standards of the Policy.”). Therefore, the Panel finds that the disputed domain name is confusingly similar to Complainant’s mark under Policy ¶ 4(a)(i).
Complainant has not licensed or otherwise authorized Respondent to use its TELUS mark. Respondent is not commonly known by the disputed domain name: under Policy ¶ 4(c)(ii), WHOIS information may be used to determine whether a respondent is commonly known by the disputed domain name. See Chevron Intellectual Property LLC v. Fred Wallace, FA1506001626022 (Forum July 27, 2015) (finding that the respondent was not commonly known by the <chevron-europe.com> domain name under Policy ¶ 4(c)(ii), as the WHOIS information named “Fred Wallace” as registrant of the disputed domain name). Here, the WHOIS information for the disputed domain name lists the registrant as “Peter Ogali”. Thus the Panel find that Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii).
Complainant alleges that the look and feel of the resolving website imitates that of Complainant’s legitimate website. The Panel disagrees, thus it will not further discuss this allegation.
Complainant provides evidence showing that the resolving website purports to offer financial services, but attempting to sign-up for an investment plan only results in a person being asked to provide personal contact information and financial account information. The resolving website prompts users to donate to the victims of the recent earthquake in Turkey and Syria, and has a sign-up page where users provide their cryptocurrency wallet information. The resolving website displays photographs of Complainant’s Chief Executive Officer (and claims him to be Respondent’s Chief Executive Officer) and other of Complainant’s employees, with certain photos of Complainant’s employees manipulated to include the graphic that Respondent uses for the company name it displays on the resolving website. As noted above, the address and telephone number displayed on the resolving website are not legitimate. Thus, on the balance of the evidence, the Panel finds that Respondent attempts to impersonate Complainant in furtherance of a phishing scheme. This is not a bona fide offering of goods or services, or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii). ). See Edible Communities v. Thoreau, FA0803001158554 (Forum Apr. 16, 2008) (“[R]espondent’s use of the disputed domain name [<theedibleaustin.com>] to pass itself off as [c]omplainant shows that [r]espondent lacks rights and legitimate interests in the disputed domain name under Policy ¶4(c)(i) as well as Policy ¶4(c)(iii).”); see also Digg v. Digg , FA0808001220833 (Forum Oct. 9, 2008) (finding no legitimate interest in respondent’s use of the domain name <digg-inc.com> because “[r]espondent is attempting to pass itself off as [c]omplainant” and such “actions do not constitute a bona fide offering of goods or services under Policy ¶4(c)(i) or a legitimate noncommercial or fair use under Policy ¶4(c)(iii).”); see also DaVita Inc. v. Cynthia Rochelo, FA 1738034 (Forum July 20, 2017) (”Passing off in furtherance of a phishing scheme is not considered a bona fide offering of goods or services or legitimate noncommercial or fair use.”); see also Amazon Technologies, Inc. v. Suzen Khan / Nancy Jain / Andrew Stanzy, FA 1741129 (Forum Aug. 16, 2017) (finding that respondent lacked rights and legitimate interests in a domain name with which it conducted a phishing scheme to procure “Internet users’ personal information”); see also 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).”). Thus the Panel finds that Respondent fails to use the disputed domain name to make a bona fide offering of goods or services, or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii). And the Panel finds that Respondent does not have rights or legitimate interests in the disputed domain name.
Complainant notes that Respondent has been found to have registered and used a disputed domain name in bad faith in one prior UDRP proceeding. This is apparently an attempt to allege bad faith registration and use under Policy ¶ 4(b)(ii). But that element of the Policy requires that Respondent has engaged in a pattern of bad faith registration and use. Complainant does not allege – much less provide evidence to show – that Respondent has engaged in such a pattern. Therefore the Panel will not further discuss this allegation.
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, the resolving website is used in furtherance of phishing. This is evidence of bad faith registration and use under Policy ¶ 4(a)(iii). See Citigroup Inc. v. Domain MANAGER / Domain Brokers, FA1505001621817 (Forum July 13, 2015) (finding that the respondent’s use of a survey, in which Internet users were encouraged to enter personal information to complete, indicated bad faith registration and use pursuant to Policy ¶ 4(a)(iii)); see also 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).”). The Panel therefore finds that Respondent registered and uses the disputed domain name in bad faith per Policy ¶ 4(a)(iii).
Further, also as already noted, Respondent is impersonating Complainant and its Chief Executive Officer. Impersonating an employee of a complainant is an indication of bad faith under Policy ¶ 4(a)(iii). See Smiths Group plc v. Snooks, FA 1372112 (Forum Mar. 18, 2011) (finding that the respondent’s attempt to impersonate an employee of the complainant was evidence of bad faith registration and use under Policy ¶ 4(a)(iii)). Thus the Panel finds that Respondent registered and uses the disputed domain name in bad faith per Policy ¶ 4(a)(iii) on this ground also.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <xtelusprofit.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: June 8, 2023
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page