Complainant is Crescent Communities, LLC, United States of America (“United States”), represented by Troutman Pepper, United States.
Respondent is Registration Private, Domains By Proxy, LLC, United States / Kimberly Hill, 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 June 2, 2021. On June 3, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On June 4, 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 June 7, 2021, providing the registrant and contact information disclosed by the Registrar, and inviting Complainant to submit an amended Complaint. Complainant filed an amended Complaint on June 7, 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 June 10, 2021. In accordance with the Rules, paragraph 5, the due date for Response was June 30, 2021. The Center received emails from a third party on June 7 and June 8, 2021, stating that it has nothing to do with this dispute and that someone has used his email. Accordingly, the Center notified the Commencement of Panel Appointment Process on July 1, 2021. The Center appointed Scott R. Austin as the sole panelist in this matter on July 8, 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 following facts appear from the Complaint (as amended) and its Annexes, which have not been contested by Respondent. Complainant is a is a nationally recognized, market-leading real estate investor, developer, and operator of mixed-use communities and since 1996 has operated under the mark CRESCENT COMMUNITIES (the “ CESCENT COMMUNITIES Mark”), Complainant creates high-quality, differentiated residential and commercial communities in many of the fastest growing markets in the United States. Complainant’s development portfolio includes more than 63 multifamily communities, 21 million square feet of commercial space, and 60 single family master-planned communities. Complainant and its real estate offerings have been extensively advertised under the CESCENT COMMUNITIES Mark throughout the United States. Complainant and its predecessor in interest have used the CRESCENT COMMUNITIES Mark in the United States as a source identifier for its real estate development services and a range of related real estate management, leasing and brokerage services for over 25 years and owns trademark registrations there, including: United States Trademark Registration No. 5906054, CRESCENT COMMUNITIES, registered on November 12, 2019, for multi-family and residential real estate development services in class 37, and claiming a first use date of September 1, 1996. United States Trademark Registration No. 5906104, CRESCENT COMMUNITIES, registered on November 12, 2019, for multi-family and residential real estate management services; leasing of multi-family and residential real estate; brokerage of real estate, namely, undeveloped land, in class 36, and claiming a first use date of September 1, 1996. Complainant is the registrant of and uses the domain name < crescentcommunities.com> (created December 13, 1996, from which Complainant operates its official Crescent Communities website at “www.crescentcommunities.com” (“Official Crescent Communities Website”), offering detailed information about Complainant including its history and the services provided under the CRESCENT COMMUNITIES Mark. The disputed domain name was registered on May 20, 2021 and resolves to an inactive website. The record submitted provides probative evidence of use of the disputed domain name to engage in the abusive conduct known as “homograph spoofing” because the disputed domain appears to replicate Complainant’s mark in its entirety, but actually replaces one letter “m” with the lookalike combination of the two letters “r” and “n” (rn) to fabricate a variant letter “m”, a known combination for homograph spoofing attacks using the homograph to cause confusion and redirect unsuspecting users searching for Complainant’s services to Respondent’s site. 5. Parties’ Contentions A. Complainant Complainant contends that the disputed domain name is identical or confusingly similar to Complainant’s trademark; that Respondent has no rights or legitimate interests in respect of the disputed domain name; and that the disputed domain name was registered and is being used in bad faith. B. Respondent Respondent did not reply to Complainant’s contentions. 6. Discussion and Findings There are no exceptional circumstances within paragraph 5(e) of the Rules to prevent this Panel from determining the present dispute based upon the Complaint (as amended), notwithstanding the failure of any person to lodge a Response. Under paragraph 14 of the Rules, where a party does not comply with any provision of the Rules, the Panel shall “draw such inferences therefrom as it considers appropriate”. Where no Response is filed, however, Complainant must still make out its case in all respects under paragraph 4(a) of the Policy. To succeed, Complainant must demonstrate that all the elements listed in paragraph 4(a) of the Policy have been satisfied: (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 has been registered and is being used in bad faith. The Panel will address each of these requirements in turn. The standard of proof under the Policy is often expressed as the “balance of the probabilities” or “preponderance of the evidence” standard. Under this standard, an asserting party needs to establish that it is more likely than not that the claimed fact is true. See, WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 4.2. A. Identical or Confusingly Similar Ownership of a nationally registered trademark constitutes prima facie evidence that Complainant has the requisite rights in a mark for purposes of paragraph 4(a)(i) of the Policy. WIPO Overview 3.0, section 1.2.1. Complainant has demonstrated its rights because it has shown that it is the holder of multiple valid and subsisting trademark registrations for its CRESCENT COMMUNITIES Mark. See Advance Magazine Publishers Inc., Les Publications Conde Nast S.A. v. Voguechen,WIPO Case No. D2014-0657. With Complainant’s rights in the CRESCENT COMMUNITIES Mark established, the remaining question under the first element of the Policy is whether the disputed domain name (disregarding the Top-Level Domain (“TLD”) “.com” in which the disputed domain name is registered) is identical or confusingly similar to Complainant’s CRESCENT COMMUNITIES Mark. It is well accepted that the first element functions primarily as a standing requirement and that the threshold test for confusing similarity involves a “reasoned but relatively straightforward comparison between Complainant’s trademark and the disputed domain name”. WIPO Overview 3.0, section 1.7. Prior UDRP panels have held “the fact that a domain name wholly incorporates a complainant’s registered mark is sufficient to establish identity or confusing similarity for purposes of the Policy despite the addition of other words to such marks”. Oki Data Americas, Inc. v. ASD, Inc.,WIPO Case No. D2001-0903. The disputed domain name incorporates Complainant’s CRESCENT COMMUNITIES Mark in its entirety with one minor distinction, the replacement of the first occurrence of the letter “m” in the mark with the two letters “r” and “n” adjacent to one another to combine to create the appearance of a letter “m”. This contrived substitute letter does not significantly affect the appearance or pronunciation of the disputed domain name. In fact, Complainant provides undisputed evidence that this alternate spelling intentionally selected by Respondent to create confusion using “homograph spoofing”, a form of bad faith conduct, which will be considered in Section 6.C. below. The disputed domain name, therefore, is essentially identical to Complainant’s official domain name Prior UDRP panels have also found a difference of only one letter between a disputed domain name and a complainant’s mark to be insufficient to prevent a finding of confusing similarity. See, e.g., Electronic Arts Inc. v. John Zuccarini,WIPO Case No. D2003-0141 ( Complainant’s CRESCENT COMMUNITIES Mark is recognizable as incorporated in its entirety into the disputed domain name and for that reason the Panel finds the disputed domain name confusingly similar to the CRESCENT COMMUNITIES Mark in which Complainant has rights. Complainant has satisfied paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests Under the second element of the Policy, a complainant is first required to make out a prima facie case that the respondent lacks rights or legitimate interests in the disputed domain name. If a complainant makes that showing, the burden of production on this element shifts to the respondent to come forward with relevant evidence of such rights or legitimate interests in the domain name. If the respondent fails to come forward with such evidence, a complainant is generally deemed to have satisfied the second element. WIPO Overview 3.0, section 2.1. See also, Malayan Banking Berhad v. Beauty, Success & Truth International,WIPO Case No. D2008-1393. Respondent is in default and thus has not attempted to come forward to show any rights or legitimate interests in the disputed domain name under the Policy at paragraph 4(c). Complainant has established, prima facie, that Respondent lacks rights or legitimate interests in the disputed domain name. First, it is clear from the record submitted that Respondent is not a licensee of or affiliated with Complainant, nor has Complainant consented to or granted any authorization for Respondent to make use of Complainant’s CRESCENT COMMUNITIES Mark in a domain name or otherwise. Complainant has also shown that Respondent is not commonly known by the disputed domain name because Respondent is listed in the WhoIs record submitted with the initial Complaint as Domains By Proxy, LLC,DomainsByProxy.com, and thereafter revealed by the involved registrar to be Kimberly Hill, identified as the additional respondent in the amended Complaint. Neither Respondent bears any resemblance to the disputed domain name whatsoever. It is generally regarded as prima facie evidence of no rights or legitimate interests if a complainant shows that the disputed domain name is identical or confusingly similar to a complainant’s trademark, that the respondent is not commonly known by the disputed domain name, and that a complainant has not authorized the respondent to use its mark (or an expression which is confusingly similar to its mark), whether in the disputed domain name or otherwise. See, Roust Trading Limited v. AMG LLC,WIPO Case No. D2007-1857. Complainant also contends that since the disputed domain name resolves to an inactive or “blank” web page, which reports an error (“This site can’t be reached”), that Respondent has no genuine actual or legitimate business which uses the name or mark “CRESCENT COMMUNITIES”, or any similar name and has not used the CRESCENT COMMUNITIES name or mark (or any similar name) in connection with the bona fide offering of goods or services so that it benefits from any goodwill as such term is reflected in the disputed domain name. Prior UDRP panels have held that use of a disputed domain name to resolve to a blank or inactive web page does not represent a bona fide use of the disputed domain name. See Fetzer Vineyards v. --,WIPO Case No. D2019-2285. See also WIPO Overview 3.0, section 2.9. Complainant has also provided detailed explicit evidence showing Respondent’s use of the disputed domain name in connection with homograph spoofing attack to impersonate Complainant’s official domain name as part of a linking scheme to redirect confused or unwary consumers searching for Complainant’s services to a website created by Respondent to extract payment and financial information from Complainant’s clients. Prior UDRP panels have held that the use of a domain name for illegal activity (e.g., phishing, unauthorized account access/hacking, impersonation/passing off, or other types of fraud) can never confer rights or legitimate interests on a respondent. See, WIPO Overview 3.0, section 2.13. See also, Springer Nature Limited v. Registration Private, Domains By Proxy, LLC / Collections Springer Nature,WIPO Case No. D2020-0955. Furthermore, prior UDRP panels have held that domain names that are identical to a complainant’s trademark carry a high risk of implied affiliation, and that such composition cannot constitute fair use if it effectively impersonates or suggests sponsorship or endorsement by the trademark owner. See WIPO Overview 3.0, section 2.5.1. In this case, the Panel has found in Section 6.A. above that the disputed domain name is essentially identical to Complainant’s CRESCENT COMMUNITIES Mark. In view of the above, the Panel finds that Complainant has made out a prima facie case that Respondent has no rights or legitimate interests in the disputed domain name. Respondent has not submitted any argument or evidence to rebut Complainant’s prima facie case. The Panel determines, therefore, that Respondent does not have rights or legitimate interests in the disputed domain name and that Complainant has successfully met its burden under paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith Complainant contends that because Respondent has created a domain name that is confusingly similar to Complainant’s CRESCENT COMMUNITIES Mark, as well as its The Panel also notes here additional factors under section 3.1.4 and its cases from which the Panel may infer bad faith registration: (i) Respondent’s clearly intentional replacement of the first occurrence of the letter “m” in the disputed domain name with the two letters “rn” to fabricate a variant “m”, a known form of homograph spoofing to create a subterfuge version of both Complainant’s CRESCENT COMMUNITIES Mark and official (ii) Complainant’s official website for Complainant’s real estate development and related management, leasing and brokerage services is accessed at “www.crescentcommunities.com”, a strikingly similar string, which suggests Respondent targeted Complainant’s mark when it picked the disputed domain name replacing one character by another, almost identical, character, with the sole intention of deliberately causing confusion through Respondent’s use of the disputed domain name (iii) the lack of Respondent’s rights to or legitimate interests in the disputed domain name registered to engage in per se illegitimate activity for commercial gain. Given the circumstances of this case, such a showing is sufficient to establish bad faith registration. See, WIPO Overview 3.0, section 3.2.1. Bad faith use is also clear from Respondent’s illegitimate conduct engaging in homograph spoofing, as discussed in detail above, to support redirecting unsuspecting consumers to a website controlled by Respondent and sending fraudulent emails under the name of Complainant suggesting an affiliation with Complainant to solicit sensitive, financial information to redirect payments to third party accounts from unsuspecting clients for Respondent’s commercial gain. See, WIPO Overview 3.0, section 3.1.4.; see also, Wolf Oil Corporation N.v. v. Peter Hugeman,WIPO Case No. D2016-1398 (finding “[i]n the Panel’s opinion, registering a domain name mirroring an existing one, but replacing a character by another, almost identical, character, with the sole intention of deliberately causing confusion (a practice often referred to as ‘homograph spoofing’), is an activity that illustrates the very essence of bad faith registration and use under the Policy”). For these reasons, the Panel finds bad faith registration and use, and Complainant has met its burden under 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, Scott R. Austin
Sole Panelist
Date: July 22, 2021
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