The Complainant is Ally Financial Inc., United States of America (“United States”), represented by CSC Digital Brand Services AB, Sweden.
The Respondent is Registration Private, Domains By Proxy, LLC, United States / Carolina Rodrigues, Fundacion Comercio Electronico, Panama. 2. The Domain Names and Registrar
The disputed domain names The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 3, 2020. On August 3, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain names. On August 4, 2020, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain names which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on August 6, 2020 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on August 10, 2020. 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 the Respondent of the Complaint, and the proceedings commenced on August 10, 2020. In accordance with the Rules, paragraph 5, the due date for Response was August 30, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on September 3, 2020. The Center appointed Christian Gassauer-Fleissner as the sole panelist in this matter on September 25, 2020. The Panel finds that it was properly constituted. 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 The Complainant, being founded in 1919 by General Motors Corporation, is a bank holding company, which provides financial services including online banking, car finance, corporate lending, vehicle insurance, mortgages, credit cards, and brokerage firm services. As of 2018, the Complainant is one of the top auto lenders in the United States and reported net revenue of USD 6.3 billion for 2019. The Complainant has used its ALLY trademark in connection with financial services since 2009. The Complainant is the owner of the following ALLY trademarks in different jurisdictions: - United States Registration No. 3667814, registered on August 11, 2009, in respect of services in class 36; Furthermore, the Complainant is the owner of the following ALLY BANK trademarks in different jurisdictions: - United States Registration No. 3722309, registered on December 8, 2009, in respect of services in class 36; - United States Registration No. 4015248, registered on August 23, 2011, in respect of services in class 36; - United States Registration No. 4025574, registered on September 13, 2011, in respect of services in class 36; - European Union Trade Mark Registration No. 014567911, registered on January 11, 2016, in respect of services in class 36; and - International Registration No. 1074075, registered on March 28, 2011, in respect of services in class 36. The Complainant has a strong online presence. It operates the domain names The disputed domain name The Complainant asserts that the disputed domain names are confusingly similar to its ALLY and ALLY BANK trademarks as the disputed domain names differ from Complainant’s trademarks by just one letter. The Complainant further asserts that the Respondent has no rights or legitimate interests in respect of the disputed domain names since the Respondent is not commonly known by the disputed domain names and the Respondent is not licensed, authorized or permitted to register domain names incorporating the Complainant’s trademarks. The Complainant contends that the Respondent has registered and is using the Disputed Domain Name in bad faith in view of that the disputed domain names are clearly designed to attract Internet user looking for the website of the Complaint by using a slight misspelling of Complainant’s trademarks and domain name. The Respondent’s domains must thus be considered prototypical examples of typosquatting. The Complainant requests transfer of the disputed domain names. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings Paragraph 15(a) of the Rules requires that the Panel’s decision be made “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”. It has been a consensus view in previous UDRP decisions that a respondent’s default (i.e., failure to submit a response) would not by itself mean that the Complainant is deemed to have prevailed; a respondent’s default is not necessarily an admission that the complainant’s claims are true (See section 4.3 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”)). A complainant must evidence each of the three elements required by paragraph 4(a) of the Policy in order to succeed on the complaint, namely that; (i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights; (ii) the respondent has no rights or legitimate interests in respect of the disputed domain name; and (iii) the disputed domain name has been registered and is being used in bad faith. A. Identical or Confusingly Similar The Panel finds that the disputed domain names are confusingly similar to the Complainant’s ALLY BANK mark, in which the Complainant has established rights through registration and use. The disputed domain names vary from Complainant’s trademark by only one letter. Specifically, in creating the disputed domain names, the Respondent has added the letter “g” (after “b”) and the letter “i” (before “k”) respectively in the term “bank” of the Complainant’s ALLY BANK trademark. The letters “g” and “b” as well as the letters “i” and “k” are directly adjacent and next to each other on a standard English language computer keyboard. Due to the proximity of these keys, a user intending to type Complainant’s domain name Such obvious misspellings of a trademark are consistently considered by UDRP panels to be confusingly similar to the relevant mark for purposes of the first element (see section 1.9 of the WIPO Overview 3.0). Furthermore, both disputed domain names wholly incorporate the Complainant’s ALLY mark, which is clearly recognizable in the disputed domain names. Accordingly, the Panel finds the Complainant has satisfied the requirements of paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests While the overall burden of proof in UDRP proceedings is on the Complainant, UDRP panels have recognized that proving a respondent lacks rights or legitimate interests in a domain name may result in the often impossible task of “proving a negative”, requiring information that is often primarily within the knowledge or control of the respondent. As such, where a complainant makes out a prima facie case that the respondent lacks rights or legitimate interests, the burden of production on this element shifts to the respondent to come forward with relevant evidence demonstrating rights or legitimate interests in the domain name (see section 2.1 of the WIPO Overview 3.0). Based on the evidence provided by the Complainant, the Panel concludes that the Respondent was aware of the Complainant and had the Complainant’s distinctive ALLY BANK mark in mind when registering the disputed domain names. The disputed domain names are an obvious misspelling of the Complainant’s domain name The disputed domain names resolve to websites containing pay-per-click advertisement, which as numerous previous UDRP panels have found, does not represent a bona fide offering where such links compete with or capitalize on the reputation and goodwill of the Complainant’s mark or otherwise mislead Internet users, which is the case here (see section 2.9 of the WIPO Overview 3.0). The Complainant therefore made a prima facie case that the Respondent lacks rights or legitimate interests to which the Respondent failed to respond. Accordingly, the Panel finds the Complainant has satisfied the requirements of paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith The fact that both of the disputed domain names consist of an obvious misspelling of the Complainant’s trademark ALLY BANK and domain name The current use of the disputed domain name to redirect users the websites comprising pay-per-click links, further proves to the Panel that the Respondent is intentionally attempting to attract, for commercial gain, Internet users to its websites by creating a likelihood of confusion with the Complainant’s mark. Furthermore, the Complainant has provided evidence that the disputed domain names have been offered for sale on a third party website for valuable consideration in excess of the out-of-pocket costs directly related to the disputed domain names. Previous UDRP panels have found that employing a misspelling in this way signals intention on the part of the Respondent to confuse Internet users seeking or expecting the Complainant (see section 1.9 of the WIPO Overview 3.0.). The Responded furthermore has previously been involved in the below-listed cases, among others, which provides evidence of a pattern of cybersquatting in which the Respondent is engaging: - Sunrise Senior Living, LLC v. Registration Private, Domains By Proxy, LLC / CarolinaRodrigues, Fundacion Comercio Electronico,WIPO Case No. D2020-1620; - Teva Pharmaceutical Industries Limited v. Registration Private, Domains By Proxy, LLC /Carolina Rodrigues, Fundacion Comercio Electronico,WIPO Case No. D2020-1337; - Discover Financial Services v. Registration Private, Domains By Proxy, LLC / CarolinaRodrigues,WIPO Case No. D2020-1178; - Carvana, LLC v. Registration Private, Domains By Proxy, LLC / Carolina Rodrigues, Fundacion Comercio Electronico,WIPO Case No. D2020-1376; and - Signature Bank v. Registration Private, Domains By Proxy, LLC / Carolina Rodrigues, Fundacion Comercio Electronico,WIPO Case No. D2020-1081. Previous UDRP panels have concluded that evidence of prior panel decisions in which domain names have been transferred away from the Respondent to complaining parties supports a finding that Respondent has engaged in a bad faith pattern of “cybersquatting”. (see Arai Helmet Americas, Inc. v. Goldmark,WIPO Case No. D2004-1028). Lastly, the Complainant has provided evidence that the Respondent also holds registrations for other domain names, which are obvious misspellings of well-known marks, which provides further evidence of the pattern of cybersquatting in which the Respondent is engaging. For these reasons, the Panel considers that the Respondent’s conduct constitutes bad faith registration and use of the disputed domain names. Accordingly, the Panel finds that the Complainant has satisfied the requirements of paragraph 4(a)(iii) 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 names, Christian Gassauer-Fleissner
- United States Registration No. 4264894, registered on December 25, 2012, in respect of services in class 35;
- European Union Trade Mark Registration No. 013056941, registered on November 26, 2014, in respect of services in class 36; and
- International Registration No. 981147, registered on September 16, 2008, in respect of services in class 36.
Sole Panelist
Date: October 6, 2020
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