The Complainant is e2Interactive, Inc., United States of America (“United States”), represented by Bates & Bates LLM, United States.
The Respondent is Jhonleno Fernandez, Dominican Republic. 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 3, 2021. On March 3, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On March 3, 2021, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name. The Center sent an email communication to the Complainant on March 9, 2021 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 amendment to the Complaint on March 12, 2021. The Center verified that the Complaint together with the amendment to the 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 March 23, 2021. In accordance with the Rules, paragraph 5, the due date for Response was April 12, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on April 16, 2021. The Center appointed Clive Duncan Thorne as the sole panelist in this matter on May 2, 2021. 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, in cooperation with its affiliate, Interactive Communications International, Inc. (“InComm”) provides pre-paid debit and stored value card services using its trade mark MYVANILLA including on various websites associated with the following domain names: The disputed domain name The Complainant owns numerous trade marks incorporating VANILLA throughout the world and which are exhibited at Annex 3 to the Complaint. In particular the Complainant owns the United States Registration Nos. 4324785, 4324786, and 4324787 for MYVANILLA in classes 9,16, and 36 in respect of pre-paid debit and stored value card services and which predate the date of registration of the disputed domain name. 5. Parties’ Contentions A. Complainant The Complainant submits; i. it owns registered trade marks for the mark MYVANILLA which predate the date of registration of the disputed domain name which is confusingly similar to the mark; ii. the Respondent has no rights or legitimate interests in respect of the disputed domain name; iii. the disputed domain name was registered and is being used in bad faith by engaging in an fraudulent phishing scheme. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings A. Identical or Confusingly Similar The Complainant submits that the disputed domain name is identical or confusingly similar to its registered trade marks MYVANILLA. The inclusion of the word “gift” in the domain name does nothing to alleviate any confusing similarity. The Panel agrees with that submission and finds that the word “gift” does not prevent a finding of confusing similarity between the trade mark MYVANILLA and the disputed domain name. This is supported by earlier UDRP decisions in which the Complainant was complainant and cited by the Complainant, including E2Interactive, Inc. v Jennifer Hart/ Donna Burton,WIPO Case No. D2017-1624 where that panel found the addition of a common word did not preclude a finding of confusing similarity. The Complainant also rightly submits that, on the basis of well-established authority, the generic Top-Level Domain, in this case “.org”, should, as is usual, be disregarded in assessing confusing similarity. The Panel therefore finds that the disputed domain name is confusingly similar to the trade mark MYVANILLA in which the Complainant has registered rights, within paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests The Complainant submits that the Respondent has no rights or legitimate interests in the disputed domain name. As provided in WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 2.1, a complainant is required to make out a prima facie case that the respondent lacks rights or legitimate interests. Once that case has been made out the burden of production then shifts to the respondent to come forward with appropriate allegations or evidence demonstrating that it has rights or legitimate interests in the domain name. On the evidence, the Respondent is not affiliated with the Complainant and the Complainant did not authorize the Respondent to use the disputed domain name. Rather, the Respondent is using the disputed domain name to engage in a fraudulent phishing scheme, as is shown by Annexes 6 and 7 to the Complaint. Three earlier panel decisions in which the Complainant was also complainant are cited to show that in similar circumstances a respondent would not have legitimate rights to the domain names. The earlier decisions are: E2Interactive, Inc. v. Jennifer Hart / Donna Burton,WIPO Case No. D2017-1624, where the panel found the respondents had no legitimate rights to the phishing websites at issue; E2Interactive, Inc. v Loraine Tillery / Cleo Runyon,WIPO Case No. 2017-2074, where the panel found the respondents had no legitimate rights to the phishing websites at issue; and E2Interactive, Inc. v. Aditya Singh and Andy Clark,WIPO Case No. D2017-1991, where the panel found that the respondents had no legitimate rights to the phishing websites at issue. This Panel finds that the Respondent’s phishing scheme supports a finding that it has no rights or legitimate interests in the disputed domain name. Accordingly, the Complainant has put forward a prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name, which has not been rebutted by the Respondent. The Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name within Paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith The Complainant submits that the Respondent registered the disputed domain name in bad faith so as to engage in the fraudulent phishing scheme. Previous panels have found that a domain name is registered in bad faith when it is being used to access a website which constitutes a phishing scheme. The earlier UDRP decision of Confederation Nationale du Credit Mutuel v Daniel DelcoreWIPO Case No. DLC2009-0001 discusses circumstances that may constitute phishing. This Panel agrees with that explanation, which can be summarized as follows: i. a fraudulent process intended to acquire sensitive information that can be used to obtain financial benefit; ii. the sensitive information may include details such as usernames, passwords, and credit card details; iii. the phishing is deceptive and the perpetrator may masquerade as a trustworthy entity in an electronic communication; iv. typically, a fake website is created that is confusingly similar to that of a legitimate website; and, v. the information is likely to be used for identity theft and other nefarious activities. The evidence of the comparison between the Complainant’s and the Respondent’s websites shows, in the Panel’s view, that the visual similarities between the websites (including the use of the Complainant’s trade marks) are clearly designed to demonstrate an intention that unsuspecting Internet users accessing the Respondent’s website will be deceived or confused as to the source and ownership of the websites. Furthermore, the phishing website contains a portal designed to collect sensitive credit or gift card details. In the absence of a Response the Panel finds that the evidence of fraudulent creation and use of the website and phishing activity is evidence that the Respondent intended to disrupt the Complainant’s business and to divert web traffic intended for the Complainant “by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation or endorsement of the Respondent’s website” within Paragraph 4(b)(iv) of the Policy. Accordingly the Panel finds that the disputed domain name was registered and is being used in bad faith by the Respondent within 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 name Clive Duncan Thorne
Sole Panelist
Date: May 16, 2021
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