DECISION

 

The Nature Conservancy v. Waheed Fadi

Claim Number: FA2312002074398

 

PARTIES

Complainant is The Nature Conservancy ("Complainant"), represented by Alberto Zacapa of DLA Piper LLP (US), District of Columbia, USA. Respondent is Waheed Fadi ("Respondent"), Pakistan.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <thenaturesconservancy.org>, registered with NameCheap, Inc.

 

PANEL

The undersigned certifies that they have acted independently and impartially and to the best of their knowledge have no known conflict in serving as Panelist in this proceeding.

 

Richard Hill as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to Forum electronically on December 8, 2023; Forum received payment on December 8, 2023.

 

On December 8, 2023, NameCheap, Inc. confirmed by e-mail to Forum that the <thenaturesconservancy.org> domain name is registered with NameCheap, Inc. and that Respondent is the current registrant of the name. NameCheap, Inc. has verified that Respondent is bound by the NameCheap, 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 December 13, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 2, 2024 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@thenaturesconservancy.org. Also on December 13, 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 January 3, 2024, 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.

 

RELIEF SOUGHT

Complainant requests that the domain name be transferred from Respondent to Complainant.

 

PARTIES' CONTENTIONS

A. Complainant

Complainant states it is the world's largest nongovernmental conservation organization. With than a million members and over 400 scientists, Complainant impacts conservation in 79 countries and territories by tackling climate change, protecting ocean, land, and fresh water, providing food and water, and more. With donations reaching almost USD 885 million, Complainant was ranked #15 on Forbes America's Top 100 Charities in 2022. Complainant also landed #45 on Nonprofit News Feed's "List of Top 100 Environmental Nonprofits Saving the World," #2 on Outside Online Magazine's "The 6 Best Environmental Groups to Donate to for a Better World," and on Green Dreamer's "35 Environmental Organizations and Nonprofits for a Sustainable Future." Since as early as 1956, Complainant has prominently used its THE NATURE CONSERVANCY mark in connection with domestic and international conservation initiatives and partnerships. Complainant asserts rights in the THE NATURE CONSERVANCY mark through its registration in the United States in 1988. The mark is registered elsewhere around the world.

 

Complainant alleges that the disputed domain name is confusingly similar to its THE NATURE CONSERVANCY mark as it consists of a misspelling of the mark, merely adding an "s" after the term "nature", together with the generic top-level domain ("gTLD") ".org".

 

According to Complainant, Respondent has no rights or legitimate interests in the disputed domain name. Complainant has not authorized Respondent to use its mark. Respondent is not using the disputed domain name for a bona fide offering of goods or services or a legitimate noncommercial or fair use. Instead, the disputed domain name is not being used.

 

Complainant correctly notes that it has to prove that the disputed domain name has been registered and is being used in bad faith, but fails to provide any arguments or discussion of that element of the Policy, and this despite the fact that the Complaint was submitted by a well-known, large, law firm.

 

B. Respondent

Respondent failed to submit a Response in this proceeding.

 

FINDINGS

Complainant owns the mark THE NATURE CONSERVANCY and uses it to promote the conservation of nature.

 

Complainant's rights in its mark dates back to 1988.

 

The disputed domain name was registered in 2023.

 

Complainant has not licensed or otherwise authorized Respondent to use its mark.

 

The disputed domain name is not being used.

 

DISCUSSION

Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted and 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").

 

Identical and/or Confusingly Similar

Complainant alleges that the disputed domain name is confusingly similar to its THE NATURE CONSERVANCY mark as it consists of a misspelling of the mark, merely adding an "s" after the term "nature", together with the generic top-level domain ("gTLD") ".org". Such changes are not sufficient to distinguish a disputed domain name from a mark under Policy ¶ 4(a)(i). 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 Lonza Ltd. v. Isabel Rodriguez Negron, FA 1904285 (Forum Aug. 11, 2020) (finding the domain name <ilonza.com> confusingly similar to Complainant's LONZA mark); see also Brooks Sports, Inc. v. chen jiajin, FA 1930406 (Forum March 30, 2021) (finding that "adding random letters and a gTLD…fails to sufficiently distinguish a disputed domain name). Thus the Panel finds that the disputed domain name is confusingly similar to Complainant's mark per Policy ¶ 4(a)(i).

 

Rights or Legitimate Interests

Complainant has not licensed or otherwise authorized Respondent to use its mark in any way. Respondent is not commonly known by the disputed domain name: under Policy ¶ 4(c)(ii), relevant WHOIS information may demonstrate that a Respondent is not commonly known by a disputed domain name. See Farm Mutual Automobile Insurance Company v. Dale Anderson, FA 1613011 (Forum May 21, 2015) (concluding that because the WHOIS record lists "Dale Anderson" as the registrant of the disputed domain name, the respondent was not commonly known by the <statefarmforum.com> domain name pursuant to Policy ¶ 4(c)(ii)). Here, the WHOIS information of record identifies the registrant as "Waheed Fadi". Therefore the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).

 

Complainant alleges that the disputed domain name is not being used, but it fails to provide any evidence to support that allegation. This is surprising for at least two reasons: the Complainant clearly states that Complainant has the burden of proving its allegations, and the Complaint was submitted by a well-known, large, law firm.

 

As noted above, unsupported allegations are insufficient to establish rights under the Policy. See by analogy Richard Izzo Toughman Enterprises v. TJ Tryon, FA 1728347 (Forum May 30, 2017) ("While this Panel is willing to give Complainant some leeway because Complainant is pro se, that does not allow Complainant to ignore its burden of proof. A complainant fails to make a prima facie case when it fails to provide any evidence whatsoever of a respondent's use of a disputed domain name."); see also Chrome Bones / CB Luxury Brands, LLC v. Laursen, Shawn / Shawn's pasta & bake shop, FA 1787926 (Forum June 27, 2018) ("Complainant's evidence of secondary meaning consists only of its unsupported assertion that it has used the mark since 2000. … Respondent's default in this matter notwithstanding, the evidence before the Panel utterly fails to demonstrate that Complainant's trademark rights accrued prior to April 2003, when Respondent registered the Domain Name."); see also by analogy Chris Pearson v. Domain Admin / Automattic, Inc., FA 1613723 (Forum July 3, 2015) (finding that the complainant could not establish the respondent registered and used the disputed domain name in bad faith because it failed to present evidence that would support such a holding).

 

The Panel invites Complainant, and its law firm, to submit, in the future, evidence to support its allegations.

 

Nevertheless, 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 disputed domain name does not appear to resolve to a web site at present. A search in the Internet Archive indicates that the disputed domain name did not appear to be used in the past.

 

Thus the Panel finds that the disputed domain name is not being used. Failure to make an active use of a domain name demonstrates that Respondent is not using the disputed domain name for a bona fide offering of goods or services or a legitimate noncommercial fair use. See Bloomberg L.P. v. SC Media Servs. & Info. SRL, FA 296583 (Forum Sept. 2, 2004) ("Respondent is wholly appropriating Complainant's mark and is not using the <bloomberg.ro> domain name in connection with an active website. The Panel finds that the [failure to make an active use] of a domain name that is identical to Complainant's mark is not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) and it is not a legitimate noncommercial or fair use of the domain name pursuant to Policy ¶ 4(c)(iii)."). Therefore, 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 under Policy ¶¶ 4(c)(i) or 4(c)(iii). And the Panel finds that Respondent does not have rights or legitimate interests in the disputed domain name.

 

Registration and Use in Bad Faith

Complainant makes no allegations regarding this element of the Policy. As already noted, that is surprising, given that the Complainant was submitted by a well-known, large law firm.

 

The Panel operates under the principle "iura novit curia", thus it will analyze this element of the Policy even though Complainant does not discuss it.

 

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 disputed domain name is not being used. According to paragraph 3.3 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (WIPO Jurisprudential Overview 3.0): "From the inception of the UDRP, panelists have found that the non-use of a domain name (including a blank or "coming soon" page) would not prevent a finding of bad faith under the doctrine of passive holding. While panelists will look at the totality of the circumstances in each case, factors that have been considered relevant in applying the passive holding doctrine include: (i) the degree of distinctiveness or reputation of the complainant's mark, (ii) the failure of the respondent to submit a response or to provide any evidence of actual or contemplated good-faith use, (iii) the respondent's concealing its identity or use of false contact details (noted to be in breach of its registration agreement), and (iv) the implausibility of any good faith use to which the domain name may be put."

 

In the present case, Complainant's trademark is well known. It is difficult to envisage any use of the disputed domain name that would not violate the Policy, see Morgan Stanley v. TONY / shentony, FA 1637186 (Forum Oct. 10, 2015) ("Respondent registered the disputed domain name [MORGANSTANLEY.ONLINE] in bad faith because . . . it is difficult to envisage any use of the disputed domain name that would not violate the Policy"); see also Singapore Airlines Ltd. v. European Travel Network, D2000-0641 (WIPO Aug. 29, 2000) (where selection of disputed domain name is so obviously connected to complainant's well-known trademark, use by someone with no connection with complainant suggests opportunistic bad faith); see also Starwood Hotels & Resorts Worldwide, Inc., Sheraton Int'l IP, LLC, Westin Hotel Mgmt., L.P. v. Jingjing Tang, D2014-1040 (WIPO Aug. 19, 2014) ("The Panel finds that the [WESTIN] Marks are not such that could legitimately be adopted by traders other than for the purpose of creating an impression of an association with Complainant. Thus, the Panel concludes that the disputed domain names were registered in bad faith").

 

There has been no response to the Complaint and Respondent used a privacy service, that is, it attempted to conceal its identity. Given these circumstances, the Panel finds that, in this particular case, a finding of bad faith use can be inferred even though the disputed domain name is not being actively used. See Telstra Corporation Limited v. Nuclear Marshmallows, D2000-0003 (WIPO Feb. 18, 2000).

 

Moreover, by merely adding a letter "s" in Complainant's mark, Respondent engages in typosquatting. A finding of typosquatting can evince bad faith under Policy ¶ 4(a)(iii). See Adorama, Inc. v. Moniker Privacy Services, FA 1610020 (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)."). As such, the Panel finds bad faith typosquatting under Policy ¶ 4(a)(iii).

 

DECISION

Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.

 

Accordingly, it is Ordered that the <thenaturesconservancy.org> domain name be TRANSFERRED from Respondent to Complainant.

 

 

 

Richard Hill, Panelist

Dated: January 3, 2024