CSEA Employee Benefit Fund (CSEA EBF) v. mw weeden
Claim Number: FA2102001930815
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <cseabf.org>, registered with NameCheap, 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.
Darryl C. Wilson, as Panelist.
Complainant submitted a Complaint to the Forum electronically on February 3, 2021; the Forum received payment on February 3, 2021.
On February 4, 2021, NameCheap, Inc. confirmed by e-mail to the Forum that the <cseabf.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 February 17, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 9, 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@cseabf.org. Also on February 17, 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.
Having received no response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.
On March 15, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Darryl C. Wilson 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 domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant has operated under the name CSEA EBF as a benefits provider since 1979. Complainant has common law rights in the CSEA EBF mark based upon use of the mark in commerce. Respondent’s <cseabf.org> domain name is confusingly similar to Complainant’s CSEA EBF mark since it simply deletes the second letter “E” in the mark to create a similar looking domain name.
Respondent does not have rights or legitimate interests in the <cseabf.org> domain name. Respondent is not commonly known by the disputed domain. Additionally, Respondent does not use the disputed domain for any bona fide offering of goods or services or legitimate noncommercial or fair use as Respondent uses the disputed domain name to impersonate Complainant via email and engage in phishing.
Respondent registered and uses the <cseabf.org> domain name in bad faith. Respondent uses the disputed domain name to impersonate Complainant via emails and engage in phishing.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant is CSEA Employee Benefit Fund (CSEA EBF) (“Complainant”), of Latham, NY, USA. Complainant claims common law rights in the mark CSEA EBF based on use of the name since 1979.
Respondent is MW Weeden (“Respondent”), of Haddonfield, NJ, USA. Respondent’s registrar’s address is listed as Phoenix, AZ, USA. The Panel notes that the disputed domain name was registered on or about December 16, 2020.
PROCEDURAL ISSUE: CONCURRENT COURT PROCEEDINGS
Complainant notes that it has filed a criminal complaint in connection with the <cseabf.org> domain name which Respondent used to impersonate Complainant’s employee via email and defraud Complainant’s client of over $22,000. Because there’s ongoing litigation in a court of law regarding the disputed domain name the Panel here finds that this administrative proceeding should be dismissed. See AmeriPlan Corp. v. Gilbert FA105737 (Forum Apr. 22, 2002) (Regarding simultaneous court proceedings and UDRP disputes, Policy ¶ 4(k) requires that ICANN not implement an administrative panel’s decision regarding a UDRP dispute “until the court proceeding is resolved.” Therefore, a panel should not rule on a decision when there is a court proceeding pending because “no purpose is served by [the panel] rendering a decision on the merits to transfer the domain name, or have it remain, when as here, a decision regarding the domain name will have no practical consequence.”).
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 Panel has dismissed the case based on concurrent court proceedings.
The Panel has dismissed the case based on concurrent court proceedings.
The Panel has dismissed the case based on concurrent court proceedings.
As the Complainant has indicated there is pending litigation regarding the disputed domain name the Panel concludes that this matter shall be DISMISSED.
Accordingly, it is Ordered that this case is dismissed.
Darryl C. Wilson, Panelist
Dated: March 29, 2021
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