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WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Experian Information Solutions, Inc. v. BPB Prumerica Travel (a/k/a SFXB a/k/a H. Bousquet a/k/a Brian Evans)
Case No. D2002-0367
1. The Parties
The Complainant is Experian Information Solutions, Inc. ("Experian"), an Ohio corporation, with its principal offices located in Orange, California, United States of America.
The current registrant of the domain name in issue is BPB Prumerica Travel, H. Bousquet, 1107 Key Plaza, Marathon, Florida, 33042 USA. The initial registrant was SFXB, B. Evans, 8635 W. Sahara, Las Vegas, Nevada, 89117 USA. Based on the record and for the reasons set forth at page 8, infra, all of these entities are considered to be related and therefore are collectively referred to as the Respondent.
2. The Domain Name and Registrar
The domain name in dispute is <experianautomotive.com>, which was registered on January 10, 2002, with Global Knowledge Group (GKG.net), 2700 Earl Rudder Freeway, Suite 1300, College Station, Texas 77845, United States of America.
3. Procedural History
The Complaint was submitted electronically to the WIPO Arbitration and Mediation Center ("the Center") on April 19, 2002; a hard copy was received on April 23, 2002. The Center received verification from Registrar GKG.net on April 23, 2002, that it registered the domain name at issue and that the Respondent was the registrant. On April 24, 2002, the Center completed its formal requirements compliance checklist, and on April 25, 2002, the Center issued the Notification of Complaint and Commencement of Administrative Proceedings. This Panel concurs that the Complaint meets the formal requirements, and that Respondent was properly notified of the Complaint.
After the Commencement of Administrative Proceeding on April 25, 2002, the Complainant submitted to the Center a series of emails, which allegedly reflect email correspondence with the purported Respondent, from various email addresses, which bear dates from April 25 to May 9, 2002. On May 9, 2002, the Center’s case manager sent emails to the Respondent’s various email addresses confirming that these emails would be forwarded to the Panel, and reminded the Respondent that it had until May 15, 2002, to submit a formal Response to the Complaint. The Panel confirms that the emails were forwarded to the Panel and reviewed as part of the record. However, the Panel finds that the emails do not comply with the requirements for a Response. Further, the Panel has given little, if any, weight to the emails because they are unsubstantiated by sworn statements or other evidence.
Respondent did not file a formal Response. On May 21, 2002, the Center issued a Notification of Respondent Default. This Panel was appointed on June 18, 2002. The projected decision date is July 2, 2002. The Panel requested an extension until July 8, 2002. There have been no other submissions. The language of this proceeding is English.
4. Factual Background
The following facts have been taken directly from the Complaint and its attachments, and have not been contested.
Complainant is one of the major credit-reporting agencies in the USA. For 24 years, it existed as a division of TRW Inc., a leading supplier of credit information for consumer, business and target marketing services. In 1996, the division became Experian and merged with CCN Group, a large European credit reference agency. Experian continues to be one of the largest providers of consumer and business information services.
Complainant first used its "Experian" mark in commerce as of September 19, 1996. Complainant holds nine US registered marks containing "Experian," in International Classes 9, 35, 36 and 42.
Complainant also does business on-line, and has operated a website continuously since 1996 as <experian.com>.
Complainant offers to its customers information regarding automobiles, including ownership of and histories of previously owned vehicles. Experian’s National Vehicle Database contains information on more than 335 million vehicles. This service is available through, among other channels, an Internet Web site operated from the address <automotive.experian.com>. Experian has operated the <automotive.experian.com> web site since the first week of January 2002, although it has provided automotive information to consumers through its Web site since August 2001.
On January 10, 2002 – just a few days after Complainant’s <automotive.experian.com> site went live – the disputed domain name, <experianautomotive.com>, was registered to SFXB, B. Evans, 8635 W. Sahara, Las Vegas, NV 89117 United States o America.
Also on January 10, 2002, an unsigned email was sent to Experian stating that a representative of Experian "had emailed me about a domain name [<EXPERIANAUTOMOTIVE.COM>] I own which I no longer use," and stating that this domain name was "for sale." Experian’s counsel sent a cease and desist letter to SFXB, B. Evans on January 14, 2002; there was no response.
On February 15, 2002, Experian sent an email to the email address on the original solicitation, attempting to locate the domain registrant. This response was from an entirely different email address "Confirmant@aol.com," saying that the email address was still for sale at a price of $5,000.00. On February 26, after offering to sell the domain name to Experian at the reduced price of $3,500.00, "Confirmant" sent the following message:
Please advise if you wish to proceed with the purchase and transfer of the domain name. I have another offer, and will be transferring the name at 11:30 a.m. February 27th should I not hear from you stating that you wish to proceed. Thank you.
The registration for <experianautomotive.com> was transferred to BPB Prumerica Travel, H. Bousquet, 1107 Key Plaza, Marathon, FL 33042, United States of America, on or about February 27, 2002.
As of the date of filing of this Complaint, the <experianautomotive.com> domain name resolved to a Web page that is blank save for the message:
No Longer In Business.
This domain name is now for sale as we are no longer in business.
If you would like to buy this domain name for $3000 USD send us an email at email@example.com.
5. Parties’ Contentions
Complainant contends that the disputed domain name <experianautomotive.com> is identical or confusingly similar to the Complainant’s EXPERIAN® marks and its websites <experian.com> and <automotive.experian.com>. Complainant also contends that Respondent has no rights or legitimate interests in the disputed domain name. Finally, Complainant contends that Respondent registered and is using the domain name in bad faith. Complainant contends Respondent is a "notorious cybersquatter," who repeatedly has (i) contacted a trademark owner by email; (ii) falsely claimed that the contact was in response to an inquiry by the trademark owner; (iii) fraudulently stated that he had previously used the domain name in question as the address of a genuine web site; (iv) offered to sell to the trademark owner a domain name incorporating its trademark; and (v) subsequently provided false contact information regarding the domain name.
Respondent has not formally responded to the Complaint or its allegations. However, in email messages purportedly submitted by or on behalf of the Respondent, Respondent claims use of the domain name longer than the Complainant’s use; that Complainant’s evidence has been manufactured; and that Respondent’s legal name is ‘Experianation’. The email is signed by J. Keane of Experianation Automotive Services.
6. Discussion and Findings
Under Paragraph 4(a) of the Policy, the Complainant has the burden of proving each of the following: (1) the domain name is identical or confusingly similar to a mark in which the Complainant has rights; (2) the Respondent has no rights or legitimate interests in the domain name; and (3) the domain name has been registered and is being used in bad faith.
A. The disputed domain name is identical or confusingly similar to the Complainant’s marks
As set forth above, Complainant first used its EXPERIAN mark in commerce as of September 19, 1996. Complainant holds nine US registered marks containing EXPERIAN®. Complainant actively promotes and sells its goods and services under the EXPERIAN® marks. This Panel finds that the Complainant has rights in the mark EXPERIAN® for purposes of invoking the UDRP.
The disputed domain name contains Complainant’s EXPERIAN® mark in its entirety. The addition of the generic term, "automotive," does not distinguish Respondent’s domain name from Complainant’s mark. Indeed, confusion is highly likely given the fact that Complainant offers historical automotive information as one of its services, from the web site <automotive.experian.com>. Respondent’s domain name, <experianautomotive.com> merely reversed the parts of Complainant’s website <automotive.experian.com>. We find that the domain name is identical or confusingly similar to Complainant’s mark.
B. Respondent has no legitimate rights in the disputed domain name
The record shows that Complainant first used the EXPERIAN® mark in 1996, several years before Respondent registered the domain name on January 10, 2002. Under 15 USC §1072, Respondent had constructive notice of Complainant’s EXPERIAN® mark.
The domain name resolves to a website that is blank except for a message indicating that the entity is no longer in business and that the domain name is for sale.
Furthermore, Respondent defaulted and chose not to submit any evidence of its legitimate rights in the domain name. Under Rule 14(b), this Panel therefore draws an adverse inference that Respondent has no evidence of legitimate rights in the domain name.
Accordingly, this Panel finds that Respondent has no legitimate rights in the disputed domain name, based on Complainant’s prior use and registration, constructive notice of Complainant’s registration, and Respondent’s lack of rights.
C. Respondent has acted in bad faith
1. Respondent registered, transferred and used this domain name in bad faith
The Complainant alleges that Respondent is a cybersquatter "of the worst sort," and submits evidence that draws a complicated picture of fraud and deception with respect to the registration, ownership, and use of the disputed domain name. Respondent has not attempted to counter these allegations, from which we can draw an adverse inference that it is unable to do so. Even without the adverse inference, however, it is clear from the facts recounted below that Respondent has registered and used the domain name in bad faith, and has taken extensive action to try to hide its bad faith. Certain parts of the facts have been highlighted in bold to draw attention to the repetition and/or relationship that emerges upon review.
2000-2001: B. Evans or Brian Evans of 8635 W. Sahara, Las Vegas, NV 89117 is named as the Respondent in several UDRP proceedings, and found to have engaged in bad faith. See, infra at page 8.
March 27, 2001: A press release from Crooner Records Inc. appended to the Complaint indicates that Brian Evans is a singer in Las Vegas. Helen Bousquet at firstname.lastname@example.org is listed as the contact for more information.
July 25, 2001: The domain name <bpbprumerica.com> was registered to SFXB/B. Evans, 8635 W. Sahara, Las Vegas, NV 89117. See The Prudential Insurance Company of America v. SFXB, NAF Case No. FA99671 (October 12, 2001), Finding No. 7. The Panel ordered that <bpbprumerica.com> be transferred.
First week of January 2002: Complainant launches its website <automotive.experian.com>.
January 10, 2002: The domain name subject to this dispute, <experianautomotive.com>, is registered to SFXB, B Evans, 8635 W. Sahara, Las Vegas, NV 89117.
January 10, 2002: The following email was sent to an Experian employee:
Sent: Thursday, January 10, 2002 4:55 PM
Someone emailed me about a domain name I own which I no longer use:
Yes, it is now for sale as we no longer use it.
January 14, 2002: Experian’s counsel sent a cease and desist letter to SFXB and B Evans. There was no response.
February 15, 2002: Experian sent an email letter to ‘email@example.com’, which is the website to which the URL <experianautomotive.com> resolved. The same day, Experian received a response from ‘Confirmant@aol.com’, which indicated that the domain name was for sale for $5,000. Several more emails followed, some of which contained false statements.
February 26, 2002: ‘Confirmant@aol.com’ sent an email to Experian that the domain name would be transferred for $3,500. Later that day, ‘Confirmant@aol.com’ sent another email asking whether Experian wished to proceed with the purchase and transfer, and that if Experian did not respond that it wished to proceed, the domain name would be transferred on February 27th in response to another offer.
February 27, 2002: The domain name was transferred to BPB Prumerica Travel, H. Bousquet, 1107 Key Plaza, Marathon, FL 33042 US, Phone: 3057457616.
February 28, 2002: ‘Confirmant@aol.com’ sends an email to Experian that says, "The name is not owned by us. Sorry."
March 18, 2002: The domain name resolves to ‘http://www.aquired.com’, to a page that is blank except for a message offering the domain name for sale. It states "If you would like to buy this domain name for $3000 USD send us an email at firstname.lastname@example.org." Complainant included a printout as an attachment to the Complaint.
March 18, 2002: Crooner, Inc., 1107 Key Plaza, Key West, FL, Phone: (305) 745-7616 is listed at ‘http://www.specialeventsite.com’. Additionally, Crooner Brian Evans, 1107 Key Plaza, Key West, FL 33040 is listed at http://fla-keys.com/keywest/, but with a different phone number. Complainant included printouts as attachments to the Complaint.
July 3, 2002: One of the Panelists received an email from ‘Confirmant@aol.com’ about this dispute. A copy is attached to this decision. It stated:
This domain name will not be transferred to you, as WIPO is clearly setting you up for.
Today only, the domain name is $5,000. If you lose WIPO, it’s $25,000.
Your decision to make, but I’m sure you’re smart enough and aware of WIPO enough to know you’re not going to win this one.
It’s valid today.
Before discussing the actions that constitute bad faith registration and use, it also is necessary to analyze the actors and their relationships, since Respondent appears to have intentionally used different names and email addresses to create a smoke screen to hide its activities.
SFXB/B. Evans, B. Evans, and Brian Evans all have listed an address of 8635 W. Sahara, Las Vegas, NV, 89117 USA. SFXB/B. Evans of that address was the original registrant of <experianautomotive.com>, as well as the registrant of <bpbprumerica.com>, which was transferred from SFXB/B. Evans in the previously referenced domain name proceeding. <experianautomotive.com> was transferred to BPB Prumerica Travel/H. Bousquet, 1107 Key Plaza, Marathon, FL USA(a fictitious address) (Phone 3057457616). 1107 Key Plaza, Key West, FL is the address of Crooner, Inc. (Phone 3057457616) and Crooner Brian Evans. Crooner Records Inc. was the business name under which Brian Evans worked in Las Vegas, and for whom Helen Bousquet was the contact person, with an email address of ‘email@example.com’. This email address was used to send the January 10, 2002, solicitation email to Complainant. That email was not signed, but references "a domain name I own…", which creates an inference that the email was from SFXB/B. Evans, who registered the domain name earlier that day, and/or an inference that there is a relationship between SFXB/B. Evans and Helen Bousquet.
‘Confirmant@aol.com’ sent its first email to Complainant on February 15, 2002, followed by many others, in which <experianautomotive.com> was offered for sale for no less than US$3,500. The day after <experianautomotive.com> was transferred to BPB Prumerica Travel/H. Bousquet, ‘Confirmant@aol.com’ sent an email to Complainant stating "The name is not owned by us. Sorry." However, ‘Confirmant@aol.com’ continues to be the contact for purchase of <experianautomotive.com>, both through ‘http://www.aquired.com’ (the URL to which <experianautomotive.com> resolves), and in the July 3, 2002, email received by one of the Panelists. Accordingly, it appears that ‘Confirmant@aol.com’ continues to be associated with the ownership and sale of <experianautomotive.com>, regardless of whether <experianautomotive.com> is registered to SFXB/B. Evans or to BPB Prumerica Travel/H. Bousquet.
When the highlighted facts set forth above have been reviewed and pieced together, it is difficult to draw any conclusion other than the conviction that Brian Evans is related to or acting in concert with SFXB, B. Evans, Helen Bousquet, H. Bousquet, and BPB Prumerica Travel, such that all of the actions that constitute bad faith registration and use can be attributed to one or related actor(s). Based on the evidence and the negative inferences drawn from Respondent’s failure to submit a Response, we conclude that the original registrant and the transferee registrant are the same party or related entities.
Turning to Respondent’s actions, in reviewing the above chronology, it appears that it was no coincidence that Respondent registered the domain name <experianautomotive.com> mere days after Complainant launched its website <automotive.experian.com>. The same day Respondent registered the domain name, Complainant received an email that offered to sell the domain name to Complainant. This clearly demonstrates Respondent’s knowledge of Complainant, and belief that Complainant – the owner of the EXPERIAN® mark – would have reason to be interested in the domain name. Furthermore, that email contained two lies. First, the email states that "Someone emailed me about a domain name…" The verified Complaint states that no one from Experian emailed the sender about this domain name. Second, the email twice states that the sender "no longer use[s]" <experianautomotive.com>. Given the fact that the domain name was registered that very day, it is impossible to believe that the sender already had discontinued any legitimate use of the domain name. This Panel therefore finds that Respondent registered the domain name in bad faith.
But Respondent’s bad faith activities did not stop on January 10, 2002. Respondent then asked Complainant to purchase the domain name for $5,000, which is significantly more than the cost of a one-year domain name registration. Additionally, the verified Complaint states that during the correspondence between the parties, Respondent fabricated statements about who initiated the inquiry into purchasing the domain name, apparently in an attempt to deflect liability. Though the mere offering of a domain name for sale by itself may not necessarily constitute bad faith, it adds to the evidence of bad faith when coupled with Respondent’s direction of the offer to Experian, and Respondent’s lies and other fraudulent activities.
When Complainant failed to purchase the domain name by Respondent’s deadline of February 26, 2002, the domain name was transferred the next day from SFXB/B Evans to BPB Prumerica Travel/H Bousquet, 1107 Key Plaza, Marathon, FL 33042 US. Two things about this transfer are noteworthy with respect to the issue of bad faith. First, the verified Complaint states that no such company is located at this address or phone number, and that the address does not appear actually to exist. False statements about the registrant, standing alone, support a finding of bad faith registration. See, e.g., Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003 (February 18, 2000); Sandvik Smith AB v. Sandvik & Smith a/k/a Paul Sandvik a/k/a Brian Evans, NAF Case No. FA99580 (October 21, 2001). Second, as set forth above, it appears that SFXB/B Evans and BPB Prumerica Travel/H. Bousquet may be acting in concert, and that SFXB/B Evans did not transfer the domain name to an independent entity, but rather attempted to mask further his identity and fraudulent activities.
2. Respondent has engaged in a similar pattern of bad faith with respect to other domain names, which have been subject to UDRP proceedings
Respondent has a similar history with respect to other domain names, which have been the subject of at least five previous UDRP proceedings:
Marconi Commerce Systems, Inc. v. Mr. B. Evans, NAF Case No. FA93560 (March 15, 2000);
Astro-Med, Inc. v. Merry Christmas Everyone! And B. Evans, WIPO Case No. D2000-0072 (March 27, 2000);
Exario Networks, Inc. v. The Domain Name You Have Entered Is For Sale, eResolution Case No. AF-0538 (December 11, 2000);
Sandvik Smith AB v. Sandvik & Smith a/k/a Paul Sandvik a/k/a Brian Evans, NAF Case No. 99580 (October 4, 2001); and
The Prudential Insurance Company of America v. SFXB/B. Evans, NAF Case No. 99671 (October 12, 2001).
In each of these previous UDRP proceedings:
► B. Evans is either the registrant of or administrative contact for the disputed domain name, or the sender of emails to Complainant from the address ‘BEvans8576@aol.com’;
► Respondent’s address is Las Vegas, NV, or 8635 W. Sahara, Las Vegas, Nevada USA (the same address as the original registrant of <experianautomotive.com>);
► The disputed domain name was registered shortly (often on the same day) after Complainant launched a new product or service, or issued a major announcement about Complainant’s business;
► Complainant received an unsolicited email, purportedly in response to Complainant’s inquiry, stating that the disputed domain name was for sale, for thousands of dollars in excess of Respondent’s reasonable out-of-pocket expenses in registering the domain name; and
► The Panel found that Respondent registered and used the domain name in bad faith, and directed that the domain name be transferred to Complainant.
As in the above referenced decisions, Respondent continues here to engage in a pattern of opportunistically registering and using domain names solely to sell them to the Complainants at prices well in excess of Respondent’s reasonable out-of-pocket expenses, while making fraudulent statements and attempting to disguise his bad faith activities.
Based on the evidence with respect to <experianautomotive.com>, as well as Respondent’s pattern of previous fraudulent conduct concerning other domain names, this Panel finds that Respondent has registered and used the domain name in bad faith.
Pursuant to Paragraphs 4(i) of the Policy and 15 of the Rules, we find that Complainant has satisfied all of the required elements, and that Complainant’s request for a transfer of the domain name <experianautomotive.com> is granted. Registrar GKG.net is directed to transfer <experianautomotive.com> to Complainant.
Sandra A. Sellers
Natasha C. LismanBarbara A. Solomon
Dated: July 8, 2002