Iowa Bankers Association v. Lin Xiao Feng
Claim Number: FA2010001916579
Complainant is Iowa Bankers Association (“Complainant”), represented by Matthew Warner-Blankenship of Davis, Brown, Koehn, Shors & Roberts, P.C., Iowa, USA. Respondent is Lin Xiao Feng (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <ibmc.com> (the “disputed domain name”), registered with Alibaba Cloud Computing (Beijing) Co., Ltd..
The undersigned certifies that she has acted independently and impartially and to the best of her knowledge has no known conflict in serving as Panelist in this proceeding.
Lynda M. Braun as Panelist.
Complainant submitted a Complaint to the Forum electronically on October 12, 2020; the Forum received payment on October 12, 2020. The Complaint was received in both Chinese and English.
On October 13, 2020, Alibaba Cloud Computing (Beijing) Co., Ltd. confirmed by e-mail to the Forum that the <ibmc.com> disputed domain name is registered with Alibaba Cloud Computing (Beijing) Co., Ltd. and that Respondent is the current registrant of the name. Alibaba Cloud Computing (Beijing) Co., Ltd. has verified that Respondent is bound by the Alibaba Cloud Computing (Beijing) Co., Ltd. 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 October 23, 2020, the Forum served the Chinese language Complaint and all Annexes, including a Chinese language Written Notice of the Complaint, setting a deadline of November 12, 2020 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@ibmc.com. Also on October 23, 2020, the Chinese 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 November 17, 2020, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Lynda M. Braun 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 disputed domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant founded Iowa Bankers Mortgage Corporation (“IBMC”) in 1979 and the two have been doing business under the mark “IBMC” for over 40 years (the “IBMC Mark”). Complainant has rights in the IBMC Mark through its registration of the mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 4,560,073, registered July 1, 2014, with a date of first use of September 26, 1979). Complainant contends that the disputed domain name is identical or confusingly similar to the IBMC Mark, that Respondent lacks rights or legitimate interests in the disputed domain name, and Respondent registered and is using the disputed domain name in bad faith since Respondent uses the disputed domain name to redirect users to a malicious webpage and/or provide directions to install a malicious browser extension.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that Complainant owns trademark rights in the IBMC Mark, the disputed domain name is confusingly similar to the IBMC Mark, Respondent lacks rights or legitimate interests in the disputed domain name, and Respondent registered and is using the disputed domain name in bad faith.
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”).
PRELIMINARY ISSUE: LANGUAGE OF THE PROCEEDINGS
Pursuant to Rule 11(a), the Panel determines that the language requirement has been satisfied through the Chinese language Complaint and Commencement Notification, and, absent a Response, determines that the remainder of the proceedings may be conducted in English.
The Panel agrees with Complainant that the disputed domain name is identical or confusingly similar to Complainant’s IBMC Mark as it contains Complainant’s mark in its entirety and merely adds the generic Top-Level Domain (“gTLD”) “.com”. The addition of a gTLD fails to sufficiently distinguish a disputed domain name from a mark per Policy ¶ 4(a)(i). See Longo Brothers Fruit Markets Inc. v. John Obeye / DOMAIN MAY BE FOR SALE, CHECK AFTERNIC.COM, FA 1734634 (Forum July 17, 2017) (“[O]f course it is well established in prior UDRP cases that the addition of a ‘.com’ suffix is irrelevant when determining if a disputed domain name is identical or confusingly similar to a trademark.”).
Accordingly, the Panel finds that Policy ¶ 4(a)(i) has been established by Complainant.
In order for Complainant to succeed under this element, it must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), and then the burden shifts to Respondent to show that it does have rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006) and AOL LLC v. Gerberg, FA 780200 (Forum Sept. 25, 2006) (“Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.”). The Panel holds that Complainant has made out a prima facie case.
The Panel further finds that Respondent has no rights or legitimate interests in the disputed domain name as Respondent has not provided evidence nor proven that it is not commonly known by the disputed domain name, nor has Complainant authorized Respondent to use the IBMC Mark. Respondent has no relationship, affiliation, connection, endorsement or association with Complainant. Further, 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. Rather, Respondent uses the disputed domain name to download malicious code onto Internet users’ devices. Using a disputed domain name in furtherance of a malware scheme 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 Snap Inc. v. Domain Admin / Whois Privacy Corp., FA 1735300 (Forum July 14, 2017) (“Use of a disputed domain name to offer malicious software does not constitute a bona fide offering or a legitimate use per Policy ¶ 4(c)(i) & (iii).”). Here, Complainant provides screenshots showing that the disputed domain name redirects to a subdomain of <mysecurify.com>, which, Complainant argues, is a scam that downloads malicious code to a user’s device. The Panel finds that such use does not constitute a bona fide offering or a legitimate noncommercial or fair use.
Accordingly, the Panel finds that Policy ¶ 4(a)(ii) has been established by Complainant.
The Panel finds that, based on the record, Complainant has demonstrated the existence of Respondent’s bad faith pursuant to paragraph 4(b) of the Policy.
First, the use of a domain name to intentionally attempt to attract Internet users to a respondent’s website or online location by creating a likelihood of confusion with a complainant’s mark as to the source, sponsorship, affiliation or endorsement of the registrant’s website or online location demonstrates registration and use in bad faith. Bad faith under Policy ¶ 4(b)(iv) can be found where a respondent uses a confusingly similar domain name to falsely indicate an association with a complainant. See AOL LLC v. iTech Ent, LLC, FA 726227 (Forum July 21, 2006).
Moreover, Respondent registered and is using the disputed domain name in bad faith as Respondent currently uses the disputed domain name to redirect users to a malicious webpage and/or provide directions to install a malicious browser extension. Using a disputed domain name in furtherance of a malware scheme demonstrates bad faith per Policy ¶ 4(a)(iii). See Asbury Communities, Inc. v. Tiffany Hedges, FA 1785054 (Forum June 18, 2018) (finding that Respondent ‘s installation of malware further supports the conclusion that Respondent registered and used the disputed domain name in bad faith under Policy ¶ 4(a)(iii)). Here, the disputed domain name redirects users to a subdomain of <mysecurify.com>, which Complainant explains is a scam that downloads malicious code to a user’s device.
Accordingly, the Panel finds that Policy ¶ 4(a)(iii) has been established by 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 <ibmc.com> disputed domain name be TRANSFERRED from Respondent to Complainant.
Lynda M. Braun, Panelist
Dated: November 30, 2020
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page