WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
SS&C Technologies, Inc. v. Contact Privacy Inc. Customer 124933669 / James Rosencrans
Case No. D2019-0938
1. The Parties
The Complainant is SS&C Technologies, Inc., United States of America (“USA”), represented by CSC Digital Brand Services AB, Sweden.
The Respondent is Contact Privacy Inc. Customer 124933669, Canada / James Rosencrans, USA.
2. The Domain Name and Registrar
The disputed domain name <ssclnc.com> is registered with Google LLC (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 25, 2019. On April 25, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On April 25, 2019, 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 the Complainant on April 29, 2019 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on May 2, 2019.
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 the Respondent of the Complaint, and the proceedings commenced on May 3, 2019. In accordance with the Rules, paragraph 5, the due date for Response was May 23, 2019. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on May 24, 2019.
The Center appointed Dennis A. Foster as the sole panelist in this matter on June 5, 2019. 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
A USA company, the Complainant offers financial services and software on a global basis. Among other marks, the Complainant conducts business under its SS&C trademark, which is registered with the European Union Intellectual Property Office (“EUIPO”) (e.g., Registration No. 017945946; registered on January 9, 2019).
The disputed domain name, <ssclnc.com>, is owned by the Respondent, and was registered on January 29, 2019. The disputed domain name resolves now to a blank webpage, but resolved previously to a website that was used to issue emails that solicited loan interest payments from Internet users.
5. Parties’ Contentions
- Founded in 1986, the Complainant is headquartered in the USA but has offices throughout the rest of the world. The Complainant is a leading provider of services and software for the financial services industry. A well-known magazine ranked the Complainant as one of the 100 fastest growing companies in the world.
- The Complainant has conducted operations under various marks that are registered in many different jurisdictions throughout the world, including its SS&C trademark, which is registered with the EUIPO. The Complainant also utilizes many registered domain names, including <ssctech.com> and <sscinc.com>.
- The disputed domain name, <ssclnc.com>, is confusingly similar to the Complainant’s SS&C mark. The disputed domain name incorporates the mark without the ampersand, a symbol that cannot be used in a domain name. Another term has been added that corresponds to the abbreviation for the word “incorporated” except that instead of “inc” the term “lnc” is used (where the letter “l” is substituted for the letter “i”). Since “l” is similar in appearance to a capitalized version of “i”, the resulting effect is to confuse Internet users into equating the additional term with “inc”, which can be applied easily to a USA corporation, including the Complainant.
- The Respondent has no rights or legitimate interests in the disputed domain name. The Complainant has not licensed or authorized the Respondent to use the Complainant’s mark in a domain name or otherwise. The Respondent is not commonly known by the disputed domain name. The disputed domain name resolves currently to a blank page, but it was linked previously to emails sent to unsuspecting Internet users as a means to secure loan interest payments on a fraudulent basis, with the implication that those emails originated with the Complainant. Neither use is a bona fide offering of goods or services or a legitimate noncommercial or fair use of the disputed domain name.
- The disputed domain name was registered and is being used in bad faith. The Respondent was clearly aware of the Complainant, as the Respondent used the Complainant’s identity to perpetuate a fraudulent activity. There is also evidence indicating that the Respondent is using another email address to engage in similarly fraudulent actions under the brand of another legitimate trademark holder. This demonstrates a pattern of fraudulent phishing activity. Moreover, the Respondent used a privacy service in its registration of the disputed domain name, which is also indicative of bad faith.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
Pursuant to Policy paragraphs 4(a)(i) - (iii), the Panel may find for the Complainant and grant it a transfer of the disputed domain name, <ssclnc.com>, provided the Complainant demonstrates that:
- The disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
- The Respondent has no rights or legitimate interests in respect of the disputed domain name; and
- The disputed domain name has been registered and is being used in bad faith.
A. Identical or Confusingly Similar
The Panel has been provided by the Complainant with evidence of its registration for the SS&C trademark with the EUIPO, so the Panel concludes that the Complainant has the rights necessary in that mark to satisfy Policy paragraph 4(a)(i). See, WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 1.2.1, (“Where the complainant holds a nationally or regionally registered trademark or service mark, this prima facie satisfies the threshold requirement of having trademark rights for purposes of standing to file a UDRP case.”).
The Panel notes that the disputed domain name, <ssclnc.com>, is not identical to the Complainant’s SS&C trademark. However, the disputed domain name does include the crucial element “ssc”, which is the core of the mark. In evaluating possible confusing similarity, the Panel will disregard the absence of an ampersand in the disputed domain name, since that symbol cannot be placed in a domain name. The disputed domain name also includes the letters “lnc”. Those letters are visually similar to the letters “inc” which is the abbreviation for incorporated, and can be applied to many USA corporations, including the Complainant. Therefore, the Panel determines that the minor differences between the disputed domain name and the SS&C mark do not avoid confusing similarity between the two. See, Ropes & Gray LLP v. Onso Onso, WIPO Case No. D2019-0823 (finding <ropegrays.com> to be confusingly similar to the ROPES & GRAY mark); H & M Hennes & Mauritz AB v. Whois Privacy Protection Service, Inc. / Dvl Den, WIPO Case No. D2016-2474 (finding <hm.gifts> to be confusingly similar to the H&M mark); and Accenture Global Services Limited v. hemingge, WIPO Case No. D2014-1898 (finding <accenturelnc.com> to be confusingly similar to the ACCENTURE mark).
Accordingly, the Panel finds that the Complainant has satisfied the first element required under the Policy.
B. Rights or Legitimate Interests
The Complainant has convinced the Panel that the disputed domain name is confusingly similar to its SS&C trademark, and has stated that it has no affiliation or license agreement with the Respondent that would permit the Respondent to use that mark for any purpose, including within a domain name. Having made this prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name, the Complainant has shifted the burden to the Respondent to come forward with evidence that it does possess those rights or legitimate interests. See, OSRAM GmbH. v. Mohammed Rafi/Domain Admin, Privacy Protection Service INC d/b/a PrivacyProtect.org, WIPO Case No. D2015-1149; and Accor v. Eren Atesmen, WIPO Case No. D2009-0701 (“A complainant must show a prima facie case that a respondent lacks rights or legitimate interests in a disputed domain name, after which the burden of rebuttal passes to the respondent.”).
The Respondent has come forward with no evidence. The Panel is thus left to consider whether there are any other reasons to believe that the Respondent has rights or legitimate interests in the disputed domain name based upon other evidence in the record. See, Çiçeksepeti Çiçekçilik ve Turizm Ltd. Şti. v. Ertunç Meriçtan, WIPO Case No. D2010-0111 (“In the absence of a reply from the Respondent the Complainant must still establish the elements of paragraph 4(a) of the Policy, however the Panel may accept as true factual allegations in the Complaint.”).
The Panel accepts the Complainant’s reasonable assertion that the webpage to which the disputed domain name resolves is now blank. Moreover, the Panel has no reason not to believe the Complainant’s evidence that the preceding webpage in place was used to direct emails to Internet users for the purpose of collecting loan interest payments related presumably to the Complainant’s operations. The Panel considers the latter use likely to be fraudulent activity and, when combined with the present inactivity, leads it to a finding that the disputed domain name has never been used in connection with a bona fide offering of goods and services within the meaning of Policy paragraph 4(c)(i). See, Tenaris Connections BV v. Whoisguard, Inc. / Eleven Xie, WIPO Case No. D2018-1121 (“The Respondent has used the Domain Name not in connection with a bona fide offering of goods or services, but to send fraudulent emails purporting to be from [the Complainant] [...]”); and Arcelormittal S.A. v. Tomy Office, WIPO Case No. DCO2016-0031 (“[...] there is no evidence of any use of the disputed domain name for a bona fide offering of goods or services, nor of any demonstrable preparations for such an offering; on the contrary, there is evidence that the disputed domain name has been used to send fraudulent emails.”).
Upon visual inspection, the Panel is compelled to conclude that neither moniker employed by the Respondent, Contact Privacy Inc. Customer 124933669 nor James Rosencrans, is likely to be confused with the disputed domain name so that the Respondent would be commonly known by it. Therefore, the Panel determines that Policy paragraph 4(c)(ii) cannot help the Respondent in this case.
Finally, the non-use and fraudulent use described above cannot in the Panel’s opinion constitute a legitimate noncommercial or fair use of the disputed domain name, rendering Policy paragraph 4(c)(iii) inapplicable in sustaining a claim by the Respondent to rights or legitimate interests in the disputed domain name.
Accordingly, the Panel finds that the Complainant’s prima facie case stands and that it has satisfied the second element required under the Policy.
C. Registered and Used in Bad Faith
The Panel accepts the Complainant’s contention that the disputed domain name is now going unused. Many prior Policy panels have found that non-use of a disputed domain name can constitute bad faith registration and use of that name under appropriate circumstances. See, WIPO Overview 3.0, section 3.3.
In this case, the Panel also accepts the Complainant’s evidence that the disputed domain name was used previously to issue deceptive emails as a ruse to gather loan interest payments. In that regard, the Panel takes note of the clever way in which the disputed domain name, <ssclnc.com>, was designed, so that the term following the Complainant’s initials, “ssc”, might easily create the impression that the disputed domain name, <ssclnc.com>, is the Complainant’s corporate website because unsuspecting Internet users might view “lnc” as the capitalized version of “inc”. However, such cleverness only makes the registration and use of the disputed domain name all the more fraudulent and thus done in bad faith. See, Bunzl UK Limited v. Godwin Olopa, WIPO Case No. D2018-0517 (“[...] the Respondent’s use of the Domain Name to send fraudulent emails is clear evidence of both bad faith registration and use.”); and Siemens AG v. Charles Mack, WIPO Case No. D2015-2026 (“That the Respondent is using the disputed domain name to send fraudulent emails establishes use in bad faith.”).
Finally, in the Panel’s view the bad faith exemplified by the Respondent, James Rosencrans, who did not file a Response, is increased by his use of a privacy service, Contact Privacy Inc. Customer 124933669, to disguise his registration of the disputed domain name. Prior UDRP panels have found this tactic to support a finding of bad faith registration and use of a disputed domain name. See, Association des Centres Distributeurs E. Leclerc v. Joe Shamji, WIPO Case No. D2018-2645 (“The Respondent’s bad faith is further supported by the fact that the Respondent is using a privacy service to hide its true identity and has not responded to the Complainant’s contentions.”).
Accordingly, the Panel finds that the Complainant has satisfied the third element required under 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 name, <ssclnc.com>, be transferred to the Complainant.
Dennis A. Foster
Date: June 18, 2019