WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
E2Interactive, Inc. v. Loraine Tillery, Cleo Runyon
Case No. D2017-2074
1. The Parties
The Complainant is E2Interactive, Inc. of Atlanta, Georgia, United States of America (“United States”), represented by Bates & Bates LLC, United States.
The Respondents are Loraine Tillery of Wallowa, Oregon, United States and Cleo Runyon of Spartanburg, South Carolina, United States.
2. The Domain Names and Registrar
The disputed domain names <onevanilla-balance.net>, <one-vanilla-card.com> and <onevanilla.pro> are registered with PDR Ltd. d/b/a PublicDomainRegistry.com (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 24, 2017. On October 25, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain names. On October 27, 2017, the Registrar transmitted by email to the Center its verification response confirming that the Respondents are listed as the registrants 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 Respondents of the Complaint, and the proceedings commenced on November 13, 2017. In accordance with the Rules, paragraph 5, the due date for Response was December 3, 2017. The Respondents did not submit any response. Accordingly, the Center notified the Respondents’ default on December 4, 2017.
The Center appointed Evan D. Brown as the sole panelist in this matter on December 12, 2017. 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, through an affiliate, provides goods and services including and related to pre-paid debit and stored value cards in several markets around the globe. It owns a number of trademark registrations for its ONE VANILLA mark, including, by way of example, United States Reg. Nos. 4,050,400 and 4,050,402, both issued on November 1, 2011. The Respondents registered the disputed domain names on August 4 and August 9, 2017. The disputed domain names resolve to fake websites that are identical to the Complainant’s legitimate card account management website. The Complainant alleges that the Respondents use the disputed domain names and associated websites in an illegal phishing scam where they are attempting to unlawfully obtain customers’ pre-paid card and financial information.
5. Parties’ Contentions
The Complainant contends that the disputed domain names are identical or confusingly similar to the Complainant’s registered trademarks; that the Respondents have no rights or legitimate interests in respect of the disputed domain names; and that the disputed domain names were registered and are being used in bad faith.
The Respondents did not reply to the Complainant’s contentions.
6. Discussion and Findings
To succeed, the Complainant must demonstrate that all of the elements listed in paragraph 4(a) of the Policy have been satisfied:
(i) the disputed domain names are identical or confusingly similar to a trademark or service mark in which the Complainant has rights;
(ii) the Respondents have no rights or legitimate interests in respect of the disputed domain names; and
(iii) the disputed domain names have been registered and are being used in bad faith.
All three of these elements have been met in this case.
A. Preliminary Issue - Multiple Respondents
The Complainant requests the Panel hear the present dispute – brought by one Complainant against two Respondents – as a consolidated, “unitary” complaint. The Panel grants the request.
Paragraph 10(e) of the Rules states that a “[p]anel shall decide a request by a Party to consolidate multiple domain name disputes in accordance with the Policy and these Rules.” Paragraph 10(c) of the Rules provides, in relevant part, that “the [p]anel shall ensure that the administrative proceeding takes place with due expedition.”
Section 4.11.2 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”) summarizes the consensus view of UDRP panels on the consolidation of multiple respondents as follows:
“Where a complaint is filed against multiple respondents, panels look at whether (i) the domain names or corresponding websites are subject to common control, and (ii) the consolidation would be fair and equitable to all parties. Procedural efficiency would also underpin panel consideration of such a consolidation scenario.
Panels have considered a range of factors, typically present in some combination, as useful to determining whether such consolidation is appropriate, such as similarities in or relevant aspects of (i) the registrants’ identity(ies) including pseudonyms, (ii) the registrants’ contact information including email address(es), postal address(es), or phone number(s), including any pattern of irregularities, (iii) relevant IP addresses, name servers, or webhost(s), (iv) the content or layout of websites corresponding to the disputed domain names, (v) the nature of the marks at issue (e.g., where a registrant targets a specific sector), (vi) any naming patterns in the disputed domain names (e.g., <mark-country> or <mark-goods>), (vii) the relevant language/scripts of the disputed domain names particularly where they are the same as the mark(s) at issue, (viii) any changes by the respondent relating to any of the above items following communications regarding the disputed domain name(s), (ix) any evidence of respondent affiliation with respect to the ability to control the disputed domain name(s), (x) any (prior) pattern of similar respondent behavior, or (xi) other arguments made by the complainant and/or disclosures by the respondent(s).”
The Complainant asserts that the Respondents should be treated as one respondent in this proceeding, as the Respondents appear to be the same person, the Respondents are using the same Registrar, the Respondents have the same email address according to the WhoIs of the disputed domain names, the disputed domain names resolved to identical websites and the disputed domain names were registered almost at the same time. The Panel accepts these arguments in favor of consolidation and grants the request to consolidate.
B. Identical or Confusingly Similar
The incorporation of a trademark in its entirety is sufficient to establish that a disputed domain name is identical or confusingly similar to the Complainant’s registered mark. See, Britannia Building Society v. Britannia Fraud Prevention, WIPO Case No. D2001-0505. In this case, the disputed domain names contain the Complainant’s trademark ONE VANILLA in its entirety. The additional words “card” and “balance” in certain of the domain names in this context do not distinguish those disputed domain names from the Complainant’s mark. In fact, the presence of the words “card” and “balance” in those domain names, which are being used to potentially scam pre-paid card visitors, reinforces the confusing similarity. Similarly, the addition of the Top-Level Domains “.com”, “.net” and “.pro” to the disputed domain names does not avoid confusing similarity.
A registered trademark provides a clear indication that the rights in the mark shown on the trademark certificate belong to its respective owner. See, Advance Magazine Publishers Inc., Les Publications Conde Nast S.A. v. Voguechen, WIPO Case No. D2014-0657. The Complainant has demonstrated its rights because it has shown that it is the owner of trademark registrations for the mark ONE VANILLA as noted above.
Accordingly, the Complainant has shown that the disputed domain names are identical or confusingly similar to trademarks in which the Complainant has rights and has prevailed on this first element of the Policy.
C. Rights or Legitimate Interests
The Panel evaluates this element of the Policy by assessing whether the Complainant has made a prima facie showing that the Respondents lack rights or legitimate interests in respect of the disputed domain names. If the Complainant makes that showing, the burden of demonstrating rights or legitimate interests in respect of the disputed domain names shifts to the Respondents.
The Complainant has made a prima facie showing that the Respondents lack rights or legitimate interests in respect of the disputed domain names. By failing to respond to the Complaint, the Respondents did not overcome their burden of demonstrating rights or legitimate interests, and no other facts in the record tip the balance in the Respondents’ favor.
Paragraph 4(c) of the Policy instructs respondents on a number of ways they could demonstrate rights or legitimate interests (“you” and “your” in the following refers to the particular respondent):
(i) before any notice to you of the dispute, your use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) you (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or
(iii) you are making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
In this case, there are several indicators concerning the Respondents’ lack of rights or legitimate interests. The Respondents are not commonly known by the disputed domain names, nor is there any evidence in the record showing the Respondents’ use of, or demonstrable preparations to use, the disputed domain names in connection with a bona fide offering of goods or services before any notice of the dispute.
Accordingly, the Respondents do not have any rights or legitimate interests in regard to the disputed domain names.
D. Registered and Used in Bad Faith
The Policy requires the Complainant to establish that the disputed domain names were registered and are being used in bad faith. Based on the available record, the Panel finds that the Respondents registered and are using the disputed domain names in bad faith. Using the disputed domain names to establish websites that are identical to the Complainant’s site, and allegedly using those sites to engage in phishing of pre-paid card and financial information, are strong examples of bad faith under the Policy.
Accordingly, the Complainant has satisfied this third element of the Policy.
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 names <onevanilla-balance.net>, <one-vanilla-card.com> and <onevanilla.pro> be transferred to the Complainant.
Evan D. Brown
Date: December 26, 2017