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Posts Tagged ‘Passing Off’

ACCION Takes Action Against Fraud

Thursday, September 24th, 2009

          accion

In the recent domain name dispute decision of ACCION USA Inc. and ACCION International v. Accion Now c/o Brian Accion (Nat Arb Forum FA 1278458, September 23, 2009), a single member Panel was faced with a dispute over the domain www.accionnow.com. ACCION USA is a nonprofit organization which helps small business get loans. ACCION USA has a trademark for ACCION in connection with its services dating back to 1983, with an issued registration in 2005. ACCION maintains a web site at www.accionusa.org. Respondent registered the domain on June 9, 2009 and failed to respond to the Complaint.

Paragraph 4(a) of the UDRP Policy requires that Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred: (1) the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and (2) Respondent has no rights or legitimate interests in respect of the domain name; and (3) the domain name has been registered and is being used in bad faith.

The Panel addressed the first prong and noted that the disputed domain contained all of ACCION’s mark. “Accordingly, the Panel finds that the <accionnow.com> domain name is confusingly similar to Complainant’s ACCION mark under Policy ¶ 4(a)(i) because none of these additions to Complainant’s mark sufficiently distinguish the disputed domain from Complainant’s mark.”

Moving to the second element, the Panel noted that ACCION made a prima facie showing, and that the burden shifted to Respondent. The Panel next reviewed the Whois information provided by Respondent and explained:

The WHOIS information for the <accionnow.com> domain name lists “Accion Now c/o Brian Accion.”  While this information suggests that Respondent may be commonly known by the disputed domain, no other information in the record corroborates this suggestion.  Therefore, the Panel finds that Respondent is not commonly known by the the <accionnow.com> domain name under Policy ¶ 4(c)(ii). 

ACCION’s business predominantly involves providing small businesses with loans. The Panel found that the disputed domain purported to allow individuals to apply for loans, which was a passing off of Complainant’s business. Additionally the Panel found that the disputed domain offered fraudulent loan opportunities as part of a phising scheme to obtain confidential information.  These phising attempts and the attempt to pass off as ACCION was not a bona fide offering of business services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).

The Panel moved to the last element, bad faith, and found as follows:

The Panel finds that Respondent’s attempt to pass itself off as Complainant in order to financially gain by obtaining confidential information constitutes bad faith registration and use under Policy ¶ 4(b)(iv), as Respondent has created a likelihood of confusion as to Complainant’s affiliation with the disputed domain name…Moreover, the Panel finds that Respondent’s aforementioned phishing attempt to fraudulently acquire Internet users’ personal information represents further evidence of bad faith registration and use under Policy ¶ 4(a)(iii). 

Ultimately, the Panel found that ACCION met all of the elements and ordered the domain be TRANSFERRED.

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