The Complainant is CSEA EBF, United States of America (“United States”), represented by Michael Gile, United States.
The Respondent is MW Weeden, 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 May 13, 2021. On May 17, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On May 17, 2021, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. The Center verified that 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 May 19, 2021. In accordance with the Rules, paragraph 5, the due date for Response was June 8, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on June 9, 2021. The Center appointed David H. Bernstein as the sole panelist in this matter on June 11, 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 is a non-profit labor trust that provides dental, vision, and reimbursement benefits to civil service employees. The Complainant registered the domain name The Respondent registered the disputed domain name The Complainant claims common law rights in the CSEA trademark. In support of its assertion of common law trademark rights, the Complainant cites the history and origin of the mark dating back to 1979, its registration of its domain name in 1998, and its use of the mark on its website since at least 2006. The Complainant asserts that the disputed domain name is confusingly similar to its CSEA trademark. It notes that the only difference between its domain name and the disputed domain name is the elimination of the second “e.” The Complainant asserts that the Respondent has no rights to or legitimate interests in the disputed domain name because the Respondent has used the disputed domain name to impersonate one of the Complainant’s employees, and has defrauded at least one of the Complainant’s clients by sending emails from the confusingly similar email address [...]@cseabf.org. In those emails, the Respondent instructed at least one client to send money by wire transfer to the Respondent’s bank rather than the Complainant’s bank. The Complainant asserts that the disputed domain name was used fraudulently the same day it was registered, December 16, 2020. Finally, the Complainant asserts that the disputed domain name was registered and used in bad faith because the Respondent used the disputed domain name to impersonate one of its employees and to defraud its client of over USD 22,000. The Complainant requests that the Administrative Panel transfer the disputed domain name to the Complainant. B. Respondent The Respondent did not reply to the Complainant’s contentions.1 6. Discussion and Findings Paragraph 4(a) of the Policy requires that a complainant prove each of the following three elements in order to obtain cancellation or transfer of a disputed domain name: (i) the domain name registered by the respondent is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and (ii) the respondent has no rights or legitimate interests with respect to the domain name; and (iii) the domain name has been registered and is being used in bad faith. A. Identical or Confusingly Similar The Complainant has established common law rights in the CSEA mark by virtue of its use of the mark in commerce. Although the Complainant provided scant information about the extent of its use, the fact that the mark has prominently been displayed on the upper right hand corner of the Complainant’s website where it has been used as an identifier of the Complainant’s employee benefit fund services for over a decade-and-a-half is sufficient to establish trademark rights for purposes of this proceeding. The disputed domain name is confusingly similar to the Complainant’s trademark because it incorporates in its entirety the Complainant’s mark. WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 1.7 (“[W]here at least a dominant feature of the relevant mark is recognizable in the domain name, the domain name will normally be considered confusingly similar to that mark for purposes of UDRP standing.”). The disputed domain name constitutes typosquatting given that it is nearly identical to the Complainant’s domain name but for the deletion of a single letter. See generally id., section 1.9. Accordingly, the Panel finds that the disputed domain name is confusingly similar to the Complainant’s mark. B. Rights or Legitimate Interests A complainant has the burden to prove that a respondent lacks rights or legitimate interests in the domain name at issue. This requires the complainant to “prove a negative,” which can be challenging because it requires information that is usually within the exclusive knowledge or control of the respondent. Id. section 2.1. For this reason, “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.” Id. In such circumstances, if the respondent fails to come forward with evidence establishing rights or legitimate interests in the disputed domain name, the complainant is deemed to have satisfied this element. Id. The Complainant here has sufficiently alleged a prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name. The Complainant asserts that the disputed domain name is a typosquatted domain name that is being used to impersonate one of the Complainant’s employees, and to defraud one of the Complainant’s clients. The Complainant has submitted copies of fraudulent emails sent by the Respondent to the Complainant’s client. Because the Respondent has not refuted the accuracy of these assertions, the Panel accepts as true the Complainant’s assertions with respect to the Respondent’s fraudulent activities. The use of a domain name for illegal activity, including impersonation and fraud, can never confer rights or legitimate interests on a domain name registrant. Id., section 2.13.1. Therefore, the Panel finds that the Complainant has established that the Respondent lacks rights or legitimate interests in the disputed domain name. C. Registered and Used in Bad Faith The Respondent’s use of the disputed domain name to impersonate the Complainant’s employee and defraud one of the Complainant’s clients is paradigmatic bad faith use. Id., section 3.1.3. (“[T]he use of a domain name for per se illegitimate activity . . . is manifestly considered evidence of bad faith.”). Those illegal activities started the very day that the Respondent registered the disputed domain name, which shows that the Respondent registered the disputed domain name in bad faith. Accordingly, the Panel concludes that the Complainant has established that the Respondent registered and used the disputed domain name in bad faith. 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 David H. Bernstein 1 Given the absence of a Response, the Panel has carefully reviewed the record to ensure that the Respondent had the opportunity to receive fair notice of this proceeding. Nicole Kidman v. John Zuccarini, d/b/a Cupcake Party,WIPO Case No. D2000-1415. The Center sent notification of the Complaint to the Respondent by email and courier. The email was sent to four email addresses in an attempt to reach the Respondent. The written notice was sent to two addresses listed for the Respondent, one in Iceland and one in New Jersey. The DHL tracking results show that the written notice sent to Iceland was delivered and signed for by “ALMA” on May 20, 2021. The written notice sent to New Jersey was not delivered according to the DHL tracking results. It appears that the Respondent received actual notice of the Complaint, but even if it did not, the Panel finds that the Center has discharged its obligation to provide fair notice to the Respondent as required by the Rules, paragraph 2(a).
Sole Panelist
Date: June 25, 2021
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