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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Fry Communications Inc. v. Kathy Barbour

Case No. D2018-0545

1. The Parties

The Complainant is Fry Communications Inc. of Mechanicsburg, Pennsylvania, United States of America, represented by Kohn Swift & Graf, P.C., United States of America.

The Respondent is Kathy Barbour of Toronto, Canada.

2. The Domain Name and Registrar

The disputed domain name, <frycornm.com> (the “Domain Name”), is registered with Google Inc. (the “Registrar”).

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 12, 2018. On March 13, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On March 13, 2018, 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 March 23, 2018. In accordance with the Rules, paragraph 5, the due date for Response was April 12, 2018. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on April 17, 2018.

The Center appointed Tony Willoughby as the sole panelist in this matter on April 26, 2018. 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 company whose business was founded in 1934. It is based in the United States of America and is engaged in the field of printing. It registered its domain name, <frycomm.com> on March 23, 1995. It has no registered trade mark rights in respect of its name, but has satisfied the Panel on the basis of long and extensive use of its trading name that it has unregistered trade mark rights in respect of FRY COMMUNICATIONS.

The Domain Name was registered on December 27, 2017 and on the unchallenged evidence of the Complainant was used to perpetrate a fraud on the Complainant (see Section 6C below).

5. Parties’ Contentions

A. Complainant

The Complainant contends that the Domain Name is confusingly similar to a trade mark in which it has rights, that the Respondent has no rights or legitimate interests in respect of the Domain Name and that the Domain Name has been registered and is being used in bad faith.

B. Respondent

The Respondent did not reply to the Complainant’s contentions.

6. Discussion and Findings

A. General

According to paragraph 4(a) of the Policy, for this Complaint to succeed in relation to the Domain Name, the Complainant must prove each of the following, namely that:

(i) The Domain Name is identical or confusingly similar to a trade mark or service mark in which the Complainant has rights: and

(ii) The Respondent has no rights or legitimate interests in respect of the Domain Name: and

(iii) The Domain Name has been registered and is being used in bad faith.

B. Identical or Confusingly Similar

First, the Complainant has to demonstrate that it has rights in respect of a relevant trade mark. It has no relevant registered trade mark, but the Panel is satisfied on the evidence before it that the Complainant has unregistered trade mark rights in respect of its trading name, “Fry Communications”, which it has used over an extensive period in relation to its business. “Comm” is a common abbreviation for “Communication(s)”.

Secondly, the Complainant has to satisfy the Panel that the Domain Name is confusingly similar to its trade mark. The Domain Name comprises the name/word “fry” followed by the letters “c” “o” “r” “n” “m”, which in combination appear as “cornm”, and the “.com” generic Top Level Domain (“gTLD”) identifier. Where, as here, the gTLD identifier is serving no function other than a purely technical one, it may be ignored for the purposes of this assessment under paragraph 4(a)(i) of the Policy. Accordingly, the comparison is between “frycornm” and the Complainant’s unregistered trade mark FRY COMMUNICATIONS.

The Panel finds that the Domain Name is confusingly similar to a trade mark in which the Complainant has rights.

C. Rights or Legitimate Interests and D. Registered and Used in Bad Faith

The Complainant makes the following assertion in the Complaint:

“The Respondent used the disputed domain name in an illegal phishing and email scam to deceive and defraud the Complainant and its client out of six hundred thousand dollars ($600,000). Using a bogus email to deceive the Complainant, the Respondent obtained the Complainant’s wiring instructions. Next, the Respondent hacked the Complainant’s accounts payable email and obtained confidential client information. Using an email address with the disputed domain name, the Respondent deceived the Complainant’s client into believing it was an employee of the Complainant and sought payment of outstanding invoices. The client was deceived and defrauded out of six hundred thousand dollars ($600,000) for printing services provided by the Complainant. A WHOIS search revealed that the Respondent has used a privacy shield to conceal its identity and provided an address that does not exist to prevent the Complainant from recovering the stolen funds.”

If one accepts that assertion, these two elements of the Policy can sensibly be taken as one. On no reasonable basis could a registrant who registers a domain name for such a purpose be said to have acquired rights or legitimate interests in respect of it; nor could it be said that that endeavor constituted anything other than registration and use of that domain name in bad faith.

A potential problem for the Complainant is that the section quoted above from the Complaint is nothing but a bare assertion, totally unsupported by any evidence. In factual situations such as the one asserted by the Complainant, complainants invariably annex to the complaint extracts (redacted as appropriate) of the relevant email exchanges. The Complainant has not done so. Ordinarily, bare assertions are not enough.

Section 4.2 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”) dealing with the applicable standard of proof in UDRP cases states:

“The applicable standard of proof in UDRP cases is the ‘balance of probabilities’ or ‘preponderance of the evidence’; some panels have also expressed this as an ‘on balance’ standard. Under this standard, a party should demonstrate to a panel’s satisfaction that it is more likely than not that a claimed fact is true.

While conclusory statements unsupported by evidence will normally be insufficient to prove a party’s case, panels have been prepared to draw certain inferences in light of the particular facts and circumstances of the case e.g., where a particular conclusion is prima facie obvious, where an explanation by the respondent is called for but is not forthcoming, or where no other plausible conclusion is apparent.”

Here, on the balance of probabilities, the Panel accepts that the Complainant’s bare assertion is likely to be founded in fact. First, the Respondent has not challenged the Complainant’s contentions and, secondly, the nature of the Domain Name comprising the letters ‘f’, ‘r’, ‘y’, ‘c’, ‘o’, ‘r’, ’n’, and ‘m’ appears to the Panel to be a meaningless combination of letters until they are combined and read ‘frycornm’, which when combined with the “.com” gTLD identifier appears identical to the Complainant’s <frycomm.com> domain name, which the Complainant uses for its email correspondence.

The Panel finds that the Respondent has no rights or legitimate interests in respect of the Domain Name and that the Domain Name was registered and is being used in bad faith within the meaning 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 Domain Name, <frycornm.com>, be transferred to the Complainant.

Tony Willoughby
Sole Panelist
Date: April 27, 2018

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