Complainant is FleetCor Technologies, Inc. of Norcross, Georgia, United States of America (“United States”), represented by Alston & Bird, LLP, United States.
Respondent is Registration Private, Domains By Proxy, LLC of Scottsdale, Arizona, United States / Andrew Left of Beverly Hills, California, United States. 2. The Domain Name and Registrar
The disputed domain name is registered with GoD, LLC (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 13, 2017. On April 13, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On April 13, 2017, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to Complainant on April 19, 2017 providing the registrant and contact information disclosed by the Registrar, and inviting Complainant to submit an amendment to the Complaint. Complainant filed an amended Complaint on April 21, 2017.
The Center verified that the Complaint together with the amended Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).
In accordance with the Rules, paragraphs 2 and 4, the Center formally notified Respondent of the Complaint, and the proceedings commenced on April 25, 2017. In accordance with the Rules, paragraph 5(a), the due date for Response was May 15, 2017. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on May 16, 2017.
The Center appointed Georges Nahitchevansky, Sandra J. Franklin and Robert A. Badgley as panelists in this matter on June 8, 2017. The Panel finds that it was properly constituted. Each member of the Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7. 4. Factual Background
Complainant, FleetCor Technologies, Inc., is a global provider of fuel cards, commercial payment and data solutions, lodging and management services and workforce payment and services. Complainant, a publicly traded company on the New York Stock Exchange, provides its services throughout North America, Latin America, Europe, Australia and New Zealand. Complainant, through its wholly-owned subsidiary FleetCor Technologies Operating Company, LLC (a co-Complainant in this proceeding), owns trademark registrations in the United States for the FLEETCOR mark both as a word mark and in a stylized version (U.S. Registration Nos. 4,751,422 and 4,751,423), both of which issued to registration on January 9, 2015.
The disputed domain name was registered on or about April 3, 2017. Currently, the disputed domain name resolves to a website that features the title “Fleet Card Secrets Exposed” and which appears to concern fees charged by Complainant to its customers in connection with Complainant’s various services. 5. Parties’ Contentions A. Complainant
Complainant asserts that it has continuously and exclusively used the FLEETCOR mark for Complainant’s services since 2000.
Complainant contends that the disputed domain name is confusingly similar to Complainant’s FLEETCOR mark because it contains the FLEETCOR mark in its entirety. Complainant also contends that the addition of the word “secret” is of no import as the inclusion of a generic term in a domain name does not distinguish the domain name from the underlying mark.
Complainant argues that Respondent lacks any rights or legitimate interests in the disputed domain name because Respondent has no connection of affiliation with Complainant, has not, at any time, received a license or consent from Complainant to use the FLEETCOR mark in the disputed domain name, and cannot be associated with the disputed domain names given that Respondent used a privacy service to register the disputed domain. Complainant further asserts that Respondent is not using the disputed domain name for a bona fide offering of goods or services or for a legitimate noncommercial or fair use. Complainant contends that Respondent has used the disputed domain name as part of a scheme to drive down the price of Complainant’s stock in order to increase the value of a short position taken by Respondent in the stock.
In that regard, Complainant claims that Respondent is an activist short seller and author of an online newsletter Citron Research and that Respondent has a known reputation and pattern for “shorting” a company’s stock, then publishing negative information about the underlying company in the hopes of driving down the price of the stock so as to increase the value of Respondent’s “short” position. Complainant maintains that Respondent has been “shorting” Complainant’s stock and registered and is using the disputed domain name for a website that publishes false information about Complainant in order to devalue Complainant’s stock and increase the value of his short position. Complainant also argues that even if Respondent’s use of the disputed domain name is for legitimate, truthful criticism that has no commercial motivation, Respondent would still not have the right to use Complainant’s mark to attract web traffic to his website – particularly where, as here, Respondent appears to have registered the domain name to convey his message.
Finally, Complainant asserts that Respondent registered and has used the disputed domain name in bad faith given the timing of the registration and use of the disputed domain name in relation to when Respondent began “shorting” Complainant’s stock, and given that Respondent is using the disputed domain name for financial gain by diverting web traffic to a website that appears to originate with Complainant but which communicates false information about Complainant and its business practices. Complainant also asserts that Respondent’s right to criticize Complainant does not extend to the use of Complainant’s FLEETCOR mark in the disputed domain name to create initial interest confusion. Lastly, Complainant argues that Respondent has a prior pattern and practice of registering and using in bad faith domain names that are confusingly similar to the trademarks of companies whose stock Respondent was shorting. B. Respondent
Respondent did not reply to Complainant’s contentions. 6. Discussion and Findings
Under paragraph 4(a) of the Policy, to succeed Complainant must satisfy the Panel that:
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which Complainant has rights;
(ii) Respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) the disputed domain name was registered and is being used in bad faith.
Here, although Respondent has failed to respond to the complaint, the default does not automatically result in a decision in favor of Complainant, nor is it an admission that Complainant’s claims are true. The burden remains with Complainant to establish the three elements of paragraph 4(a) of the Policy by a preponderance of the evidence. A Panel, however, may draw appropriate inferences from a respondent’s default in light of the particular facts and circumstances of the case, such as regarding factual allegations that are not inherently implausible as being true. See paragraph 4.3 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”); see also The Knot, Inc. v. In Knot We Trust LTD,WIPO Case No. D2006-0340. A. Identical or Confusingly Similar
Ownership of a trademark registration is generally sufficient evidence that a complainant has the requisite rights in a mark for purposes of paragraph 4(a)(i) of the Policy. WIPO Overview 3.0 at paragraph 1.2.1. Complainant has provided evidence that it owns and uses the FLEETCOR mark in connection with its fuel card and related services the United States, which has been registered and in use in the United States before Respondent registered the disputed domain name.
With Complainant’s rights in the FLEETCOR mark established, the remaining question under the first element of the Policy is whether the disputed domain name (typically disregarding the generic Top-Level Domain “.com”) is identical or confusingly similar with Complainant’s mark. See B & H Foto & Electronics Corp. v. Domains by Proxy, Inc. / Joseph Gross,WIPO Case No. D2010-0842. The threshold for satisfying this first element is low and generally panels have found that fully incorporating the identical mark in a disputed domain name is sufficient to meet the threshold.
In the instant proceeding, the disputed domain name is confusingly similar to Complainant’s FLEETCOR mark as it incorporates the FLEETCOR mark in its entirety at the head of the disputed domain name. The addition of the word “secret” does not distinguish the disputed domain name from Complainant’s FLEETCOR mark, as the dominant component of the disputed domain name is FLEETCOR. WIPO Overview 3.0, paragraphs 1.7 and 1.8. The Panel therefore finds that Complainant has satisfied the requirements of paragraph 4(a)(i) of the Policy in establishing its rights in Complainant’s FLEETCOR mark and in showing that the disputed domain name is identical or confusingly similar to that trademark. B. Rights or Legitimate Interests
Under paragraph 4(a)(ii) of the Policy, the complainant must make at least a prima facie showing that the respondent possesses no rights or legitimate interests in a disputed domain name. Malayan Banking Berhad v. Beauty, Success & Truth International,WIPO Case No. D2008-1393. Once the complainant makes such a prima facie showing, the burden of production shifts to the respondent, though the burden of proof always remains on the complainant. If the respondent fails to come forward with evidence showing rights or legitimate interests, the complainant will have sustained its burden under the second element of the UDRP.
From the record in this case, it is arguable whether Respondent has rights or a legitimate interest in the disputed domain name. While the word “secret” in its normal dictionary meaning could be used in a domain name associated with a criticism or whistleblower website, the word “secret” does not in and of itself suggest that the website at the disputed domain is in fact a criticism website. Indeed, the addition of the word “secret” directly after a brand name could be seen by web users in many other ways, such as a marketing website used to promote or offer select or exclusive deals that are not generally known. Thus, the use of the word “secret” after the FLEETCOR mark creates a situation where at least some web users will be attracted to the website because of its name and association with Complainant. Moreover, the website that Respondent has placed at the disputed domain name does not readily communicate, upon access, that it is a website critical of Complainant or its services. The visible portion of the website when it is first accessed contains some information about Complainant and a list of various brands used by Complainant for its services. It is not until a web user scrolls further down on the homepage of the website that the true nature of Respondent’s website becomes apparent.
While Respondent’s website at the disputed domain name ultimately contains statements that are critical of Complainant and its business practices, the evidence submitted by Complainant, and not challenged by Respondent, suggests that the use of the disputed domain name and associated website by Respondent has not been for noncommercial criticism purposes, but has been made by Respondent in furtherance of a commercial scheme. Specifically, the evidence submitted shows that Respondent is a known short seller who on at least three prior occasions has “short” sold the stocks of companies and then registered and used domain names based on the target company’s name or trademark to publish negative information about the company in the hopes of devaluing the company’s stock and increasing the value of Respondent’s “short” position. Respondent’s registration and use of the disputed domain name appears to follow that pattern. The disputed domain name was registered on April 3, 2017 and on April 5, 2017 Respondent appeared on a Bloomberg program that announced that “Andrew Left’s Citron Research Goes Short on FleetCor.” Thereafter, a website appeared at the disputed domain name which contained negative information regarding Complainant and its business practices, and which urged consumers to file complaints against Complainant with the Federal Trade Commission or State Attorneys General.
Although Complainant maintains that the postings at Respondent’s website are false and defamatory, given the limited record before the Panel, the Panel is not in a position to assess whether or not this is the case. However, as Respondent has not filed a response, the only evidence presented suggests that Respondent published fairly negative information regarding Complainant and its business practices on his website at the disputed domain name for what can be seen as an attempt to damage Complainant’s reputation for Respondent’s gain. This evidence, seen in light of the timing of the registration and use of the disputed domain name and the announcement that Respondent was “shorting” Complainant’s stock, makes it more likely than not that Respondent’s actions were taken in furtherance of a financial scheme to benefit Respondent and not for noncommercial legitimate criticism.
Given that Complainant has established with sufficient evidence that it owns rights in the FLEETCOR mark, and given Respondent’s above noted actions and failure to file a response, the Panel concludes that Respondent does not have a right or legitimate interest in the disputed domain name and that none of the circumstances of paragraph 4(c) of the Policy are evident in this case. C. Registered and Used in Bad Faith
There are several ways that a complainant can demonstrate that a domain name was registered and used in bad faith. For example, paragraph (4)(b)(iv) of the Policy states that bad faith can be shown where “by using the domain name [Respondent] has intentionally attempted to attract, for commercial gain, Internet users to [Respondent’s] web site or other on-line location, by creating a likelihood of confusion with [Complainant’s] mark as to the source, sponsorship, affiliation, or endorsement of [Respondent’s] web site or location or of a product or service on [the] web site or location.”
Here, Respondent has registered the disputed domain name that fully incorporates Complainant’s FLEETCOR mark with the word “secret,” which does not on its face disclose that the disputed domain name or associated website are for criticism purposes. Respondent uses the disputed domain name to attract Internet users to a website that upon initial access could be seen as related to Complainant, but which, in fact, is being used by Respondent to publish negative information about Complainant. Given that the evidence of record shows that Respondent registered the disputed domain in or around the time it was announced that he was “shorting” Complainant’s stock, and that he then used the disputed domain name for a website to publish negative information about Complainant and its business practices, it is more likely than not that Respondent was acting in bad faith in furtherance of what appears to be a financial scheme for Respondent’s profit. See, e.g., Asset Loan Co. Pty Ltd v. Gregory Rogers,WIPO Case No. D2006-0300.
That Respondent is using the disputed domain to redirect web traffic for his own profit and not for purposes of legitimate criticism is underscored by the fact that Respondent appears to also have registered the domain name , which Respondent has also used to convey his message regarding fees charged by Complainant and Complainant’s alleged business practices. This, coupled with Respondent’s failure to file a response, suggests that Respondent is quite able to communicate his message without registering or using a domain name based on Complainant’s FLEETCOR mark, and that Respondent registered and is using the disputed domain name based on Complainant’s FLEETCOR mark to intentionally attract Internet users to Respondent’s website for personal gain and not for legitimate criticism.
Moreover, given that the uncontested evidence submitted by Complainant shows that Respondent has a pattern and practice of registering domain names that are based on the names or trademarks of companies that Respondent is short selling, and then using such domain names with websites to publish negative information regarding those companies, underscores Respondent’s bad faith registration and use of the disputed domain name. Such pattern or practice supports a finding that it is more likely than not that Respondent has registered and used the disputed domain name in bad faith for a similar commercial scheme to hopefully drive down the price of Complainant’s stock and to increase the value of Respondent’s short position in the stock. See, e.g., Halle Berry and Bellah Brands Incorporated v. Alberta Hot Rods,WIPO Case No. D2016-0256.
Accordingly, the Panel finds that Complainant succeeds under this element of the Policy. 7. Decision
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name be transferred to Complainant.
Georges Nahitchevansky
Presiding Panelist
Sandra J. Franklin
Panelist
Robert A. Badgley
Panelist
Date: June 19, 2017
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