Pantera Advisors LLC v. Luggard Aus / Xiaomi company
Claim Number: FA1909001860639
Complainant is Pantera Advisors LLC (“Complainant”), represented by Scott Kareff of Schulte Roth & Zabel LLP, New York, USA. Respondent is Luggard Aus / Xiaomi company (“Respondent”), Nigeria.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <panteracapitals.com>, registered with NAMECHEAP INC; NameCheap, Inc..
The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.
Eugene I. Low as Panelist.
Complainant submitted a Complaint to the Forum electronically on September 4, 2019; the Forum received payment on September 5, 2019.
On September 5, 2019, NAMECHEAP INC; NameCheap, Inc. confirmed by e-mail to the Forum that the <panteracapitals.com> domain names is registered with NAMECHEAP INC; NameCheap, Inc. and that Respondent is the current registrant of the name. NAMECHEAP INC; NameCheap, Inc. has verified that Respondent is bound by the NAMECHEAP INC; NameCheap, Inc. registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On September 9, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 30, 2019 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@panteracapitals.com. Also on September 9, 2019, the Written Notice of the Complaint, notifying Respondent of the e-mail addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
Having received no response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.
On October 1, 2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Eugene I. Low as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant is a prominent SEC-registered investment advisor that focuses on ventures, tokens and projects related to block chain technology, digital currency and crypto assets. Complainant has rights in the PANTERA mark through its trademark registrations around the world, including with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 5,733,587, registered Apr. 23, 2019, filed Sep. 18, 2018) and the United Kingdom Intellectual Property Office (“UKIPO”) (e.g., Reg. No. 2371960, registered Sep. 1, 2004). Respondent’s <panteracapitals.com> domain name is identical or confusingly similar to Complainant’s PANTERA mark as it contains the mark in its entirety, along with the generic term “capital.”
Respondent has no rights or legitimate interests in the <panteracapitals.com> domain name. Respondent is not licensed or otherwise permitted to use Complainant’s PANTERA mark and is not commonly known by the disputed domain name. Additionally, Respondent is not using the disputed domain name for a bona fide offering of goods or services or a legitimate noncommercial or fair use. Rather, Respondent uses the domain name’s website and an email address to pass off as Complainant as part of a phishing scheme.
Respondent registered and uses the <panteracapitals.com> domain name in bad faith. Respondent attempts to disrupt Complainant’s business and attract, for commercial gain, users to the disputed domain name where it creates a likelihood of confusion as to source, sponsorship, affiliation or endorsement of Respondent’s website. Furthermore, Respondent attempts to pass off as Complainant through an email phishing scheme. Respondent also displays false contact information at its website and attempted to hide its true identity through the use of a privacy service. Finally, Respondent had actual and constructive knowledge of Complainant’s rights in the PANTERA mark prior to registering the disputed domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable."
Paragraph 4(a) of the 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.
In view of Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representations pursuant to paragraphs 5(f), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
The Panel is satisfied that Complainant has established this element.
Complainant claims rights in the PANTERA mark based upon, inter alia, registration of the mark with the USPTO (e.g., Reg. No. 5,733,587, registered Apr. 23, 2019, filed Sep. 18, 2018) and the UKIPO (e.g., Reg. No. 2371960, registered Sep. 1, 2004). Registration of a mark is generally sufficient to establish rights in that mark. In addition, based on Complainant's evidence of use, the Panel is satisfied that Complainant has acquired common law rights in the PANTERA mark.
The Panel accepts Complainant's argument that Respondent’s <panteracapitals.com> domain name is confusingly similar to the PANTERA mark, as the name incorporates the mark in its entirety along with a generic term “capitals”. The term “capitals” is closely related to Complainant's business (which includes, for instance, venture capital investments). The addition of this generic term “capitals” does not serve distinguish the disputed domain name from Complainant's PANTERA mark.
The Panel therefore determines that the <panteracapitals.com> domain name is confusingly similar to the PANTERA mark per Policy ¶ 4(a)(i).
The Panel considers that Complainant has satisfied this element.
The Panel considers that Complainant has made out a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii). Respondent is not commonly known by the disputed domain name, nor has Complainant authorized Respondent to use the PANTERA mark in any way. Complainant further demonstrates Respondent’s failure to use the domain name to make a bona fide offering of goods or services or for a legitimate noncommercial or fair use. Complainant's evidence goes further to suggest that Respondent uses the domain name’s resolving website to pass off as Complainant and an email address as part of a phishing scheme.
In the absence of contrary contentions from Respondent, the Panel accepts that Complainant has made out a prima facie case under Policy ¶ 4(a)(ii) which Respondent fails to prove to the contrary.
The Panel considers that Complainant has established this element.
Complainant's evidence suggests that Respondent uses the <panteracapitals.com> domain name to pass off as Complainant in furtherance of a phishing scheme. In particular, Complainant has produced evidence which shows that the disputed domain name resolves to an “Imposter” website that contains nearly identical links, pages and content to Complainant’s official website. Complainant also shows that the disputed domain name’s resolving website attempts to collect users’ name, email address, city, and other information. Furthermore, Complainant shows that Respondent apparently uses an email address associated with the <panteracapitals.com> domain name to phish. Phishing is behavior that is often found to be demonstrative of bad faith under Policy ¶ 4(a)(iii). The Panel accepts that in light of the fame and notoriety of Complainant's PANTERA mark, and in light of the nearly identical contents of the disputed domain name's resolving website and Complainant's website, Respondent is likely to have registered the <panteracapitals.com> domain name with actual knowledge of Complainant's rights in the mark.
In the circumstances, the Panel finds Respondent registered and uses the domain name in bad faith per Policy ¶¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <panteracapitals.com> domain name be TRANSFERRED from Respondent to Complainant.
Eugene I. Low, Panelist
Dated: October 3, 2019
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