Complainant is CoBank, ACB, United States of America (“United States”), represented by Adsero IP, United States.
Respondent is James Miller, United States. 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 30, 2021. On April 30, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On May 1, 2021, 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 May 3, 2021, 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 May 5, 2021. 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 May 7, 2021. In accordance with the Rules, paragraph 5, the due date for Response was May 27, 2021. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on May 28, 2021. The Center appointed Frederick M. Abbott as the sole panelist in this matter on June 4, 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 Complainant is the owner of registrations on the Principal Register of the United States Patent and Trademark Office (“USPTO”) for the word, and word and design, service mark COBANK, including registration number (word) 1,562,560, registration dated October 24, 1989, in international class (IC) 36, covering banking services, and; registration number (word and design) 3,716,779, registration dated November 24, 2009, in IC 36, covering banking services. Complainant operates a federally chartered cooperative bank providing a variety of banking services throughout the United States under the service mark COBANK. Complainant operates a commercial website at “www.cobank.com”. Complainant customarily uses its service mark in the form “CoBank”. According to the Registrar’s verification, Respondent is registrant of the disputed domain name. According to that verification the disputed domain name was registered to Respondent on October 16, 2020. Complainant has provided evidence in the form of email exchanges that Respondent used the disputed domain name as the domain identifier in emails purporting to originate from Complainant and replicating the logo of Complainant. Respondent through the use of these intentionally deceptive emails - appearing to originate from an officer of Complainant - obtained information from a vendor to Complainant that allowed Respondent to fraudulently solicit and obtain a payment from Complainant in an amount in excess of USD 500,000. There is no evidence on the record of this proceeding that Respondent has used the disputed domain name to direct Internet users to an active website. The registration agreement between Respondent and the Registrar subjects Respondent to dispute settlement under the Policy. The Policy requires that domain name registrants submit to a mandatory administrative proceeding conducted by an approved dispute resolution service provider, one of which is the Center, regarding allegations of abusive domain name registration and use (Policy, paragraph 4(a)). 5. Parties’ Contentions A. Complainant Complainant alleges that it owns rights in the COBANK trademark and that the disputed domain name is confusingly similar to that trademark. Complainant contends that Respondent lacks rights or legitimate interests in the disputed domain name because: (1) Respondent registered the disputed domain name substantially after Complainant secured rights in its trademark; (2) Respondent is not a licensee of Complainant nor is it otherwise authorized to use Complainant’s trademark; (3) Respondent has used the disputed domain name as part of a scheme to defraud Complainant and its vendor. Complainant argues that Respondent registered and is using the disputed domain name in bad faith because: (1) Respondent engaged in typosquatting in the disputed domain name; (2) Respondent intentionally used the disputed domain name to induce a vendor of Complainant to disclose confidential financial information that resulted in the fraudulently-induced transfer of funds to Respondent; (3) Respondent used a privacy shield to protect its identity as it undertook its scheme to defraud. Complainant requests the Panel to direct the Registrar to transfer the disputed domain name to Complainant. B. Respondent Respondent did not reply to Complainant’s contentions. 6. Discussion and Findings It is essential to Policy proceedings that fundamental due process requirements be met. Such requirements include that a respondent have notice of proceeding that may substantially affect its rights. The Policy and the Rules establish procedures intended to ensure that respondents are given adequate notice of proceedings commenced against them and a reasonable opportunity to respond (see, e.g., Rules, paragraph 2(a)). The Center formally notified the Complaint to Respondent at the email, fax, and physical addresses provided in its record of registration. Neither the fax nor courier delivery were successfully completed because the information provided in Respondent’s record of registration for the disputed domain name is inaccurate. The Center took those steps prescribed by the Policy and the Rules to provide notice to Respondent, and those steps are presumed to satisfy notice requirements. Paragraph 4(a) of the Policy sets forth three elements that must be established by a complainant to merit a finding that a respondent has engaged in abusive domain name registration and use and to obtain relief. These elements are that: (i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which complainant has rights; and (ii) 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. Each of the aforesaid three elements must be proved by a complainant to warrant relief. A. Identical or Confusingly Similar Complainant has provided evidence of rights in the trademark COBANK, including by registration at the USPTO and use in commerce. See Factual Background, supra. Respondent has not challenged Complainant’s assertion of rights. The Panel determines that Complainant has established rights in the trademark COBANK. Respondent registered the disputed domain name incorporating Complainant’s COBANK trademark (customarily used by Complainant as “CoBank”), the only difference being substitution of the numeral “0” (zero) for the letter “o”. The obvious intention of the number for letter substitution was to cause casual viewers of the disputed domain name in email communications to confuse it with Complainant’s trademark. There is a close visual similarity between the disputed domain name and Complainant’s trademark. The Panel determines that the disputed domain name is confusingly similar to Complainant’s trademark. The Panel determines that Complainant has established rights in the trademark COBANK, and that the disputed domain name is confusingly similar to that trademark. B. Rights or Legitimate Interests Complainant’s allegations to support Respondent’s lack of rights or legitimate interests in the disputed domain name are outlined above in section 5A, and the Panel finds that Complainant has made a prima facie showing that Respondent lacks rights or legitimate interests in the disputed domain name. Respondent has not replied to the Complaint, and has not attempted to rebut Complainant’s prima facie showing of lack of rights or legitimate interests. Respondent’s use of the disputed domain name as the domain in an email address as part of a scheme involving impersonation of an officer of Complainant to fraudulently solicit information from a vendor of Complainant, ultimately resulting in a fraudulent transfer of funds from Complainant to Respondent, does not establish rights or legitimate interests in the disputed domain name in favor of Respondent. Respondent’s use of the disputed domain name does not otherwise manifest rights or legitimate interests. The Panel determines that Complainant has established that Respondent lacks rights or legitimate interests in the disputed domain name. C. Registered and Used in Bad Faith In order to prevail under the Policy, Complainant must demonstrate that the disputed domain name “has been registered and is being used in bad faith” (Policy, paragraph 4(a)(iii)). Paragraph 4(b) of the Policy states that “for the purposes of paragraph 4(a)(iii), the following circumstances, in particular but without limitation, if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith”. These include that, “(iv) by using the domain name, [the respondent has] intentionally attempted to attract, for commercial gain, Internet users to [the respondent’s] website or other online location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of [the respondent’s] website or location or of a product or service on [the respondent’s] website or location”. Respondent has used the disputed domain name intentionally for purposes of commercial gain to establish Internet user confusion regarding Complainant as the source of email communications intended by Respondent to deceive a vendor of Complainant and Complainant. The deceptive email communications induced a substantial payment from Complainant to Respondent under false pretenses. Respondent was manifestly aware of Complainant’s rights in its trademark when it registered the disputed domain name and undertook its deceptive course of action. Such use of Complainant’s trademark in the disputed domain name constitutes bad faith within the meaning of the Policy. The Panel determines that Respondent registered and is using the disputed domain name in bad faith within the meaning of paragraph 4(b)(iv) 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, Frederick M. Abbott
Sole Panelist
Date: June 7, 2021
Full & Egal Universal Law Academy