Securities Investor Protection Corporation v. John Smith / Open Trade FX
Claim Number: FA2106001951198
Complainant is Securities Investor Protection Corporation (“Complainant”), represented by Christopher H. LaRosa, District of Columbia, USA. Respondent is John Smith / Open Trade FX (“Respondent”), South Africa.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <sipcorporation.org>, registered with 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.
Paul M. DeCicco, as Panelist.
Complainant submitted a Complaint to the Forum electronically on June 16, 2021; the Forum received payment on June 16, 2021.
On June 16, 2021, NameCheap, Inc. confirmed by e-mail to the Forum that the <sipcorporation.org> domain name is registered with NameCheap, Inc. and that Respondent is the current registrant of the name. NameCheap, Inc. has verified that Respondent is bound by the 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 June 16, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 6, 2021 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@sipcorporation.org. Also on June 16, 2021, 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 July 12, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Paul M. DeCicco 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 contends as follows:
Complainant, Securities Investor Protection Corp., is a non-profit membership corporation that administers a quasi-public fund established to provide relief to customers of failed securities broker-dealers.
Complainant has rights in the SIPC mark based upon registration with the United States Patent and Trademark Office (“USPTO”).
Respondent’s <sipcorporation.org> domain name is confusingly similar to Complainant’s SIPC mark since it incorporates the mark into the domain name, merely adding “orporation” and the “com” generic top-level domain (“gTLD”).
Respondent does not have rights or legitimate interests in the <sipcorporation.org> domain name. Respondent fails to use the at-issue domain name in connection to a bona fide offering of goods or services or a legitimate noncommercial or fair use. Instead, Respondent suggests affiliation with Complainant in furtherance of fraud.
Respondent registered and uses the <sipcorporation.org> domain name in bad faith. Respondent impersonates Complainant through email in an attempt at phishing. Additionally, the domain name does not resolve to an active webpage. Finally, the timing of Respondent’s domain name registration suggests bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has trademark rights in the SIPC mark.
Respondent is not affiliated with Complainant and had not been authorized to use Complainant’s trademark in any capacity.
Respondent registered the at‑issue domain name after Complainant acquired rights in the SIPC trademark.
Respondent used the <sipcorporation.org> domain name to perpetrate fraud.
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 at-issue domain name is confusingly similar to a trademark in which Complainant has rights.
Complainant’s registration of the SIPC mark with the USPTO sufficiently demonstrates Complainant’s rights in a mark under Policy ¶ 4(a)(i). See Haas Automation, Inc. v. Jim Fraser, FA 1627211 (Forum Aug. 4, 2015) (finding that Complainant’s USPTO registrations for the HAAS mark sufficiently demonstrate its rights in the mark under Policy ¶ 4(a)(i)).
Respondent’s <sipcorporation.org> domain name contains Complainant’s entire SIPC trademark. Respondent suffixes Complainant’s trademark with the term “orporation” and completes the at-issue domain name by adding the generic top-level domain name “.org” to the trademark laden string. Respondent’s additions to Complainant’s trademark fail to distinguish the <sipcorporation.org> domain name from Complainant’s SIPC mark. Therefore, the Panel concludes that Respondent’s <sipcorporation.org> domain name is confusingly similar to Complainant’s SIPC trademark pursuant to Policy ¶ 4(a)(i). See Dell Inc. v. pushpender chauhan, FA 1784548 (Forum June 11, 2018) (“Respondent merely adds the term ‘supports’ and a ‘.org’ gTLD to the DELL mark. Thus, the Panel finds Respondent’s disputed domain name is confusingly similar to Complainant’s DELL mark per Policy ¶ 4(a)(i).”).
Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006). Since Respondent failed to respond, Complainant’s prima facie showing acts conclusively.
Respondent lacks both rights and legitimate interests in respect of the at-issue domain name. Respondent is not authorized to use Complainant’s trademark in any capacity and, as discussed below, there are no Policy ¶ 4(c) circumstances from which the Panel might find that Respondent has rights or interests in respect of the at‑issue domain name. See Navistar International Corporation v. N Rahmany, FA1505001620789 (Forum June 8, 2015) (finding that the respondent was not commonly known by the disputed domain name where the complainant had never authorized the respondent to incorporate its NAVISTAR mark in any domain name registration).
The WHOIS information for the at-issue domain name identifies the domain name’s registrant as “John Smith / Open Trade FX” and the record before the Panel contains no evidence tending to prove that Respondent is commonly known by the <sipcorporation.org> domain name. The Panel therefore concludes that Respondent is not commonly known by the <sipcorporation.org> domain name for the purposes of Policy ¶ 4(c)(ii). See H-D U.S.A., LLC, v. ilyas Aslan / uok / Domain Admin ContactID 5645550 / FBS INC / Whoisprotection biz, FA 1785313 (Forum June 25, 2018) (“The publicly available WHOIS information identifies Respondent as ‘Ilyas Aslan’ and so there is no prima facie evidence that Respondent might be commonly known by either of the [<harleybot.bid> and <harleybot.com>] domain names.”); see also, Google LLC v. Bhawana Chandel / Admission Virus, FA 1799694 (Forum Sept. 4, 2018) (concluding that Respondent was not commonly known by the disputed domain name where “the WHOIS of record identifies the Respondent as “Bhawana Chandel,” and no information in the record shows that Respondent was authorized to use Complainant’s mark in any way.”).
Additionally and as further discussed below with regard to Respondent’s bad faith, Respondent uses the at-issue domain name to attempt to pass itself off as Complainant via email originating from its confusingly similar <sipcorporation.org> domain name. Using the at-issue domain name to pass off as Complainant does not constitute a bona fide offering of goods or services or legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii). See Abbvie, Inc. v. James Bulow, FA 1701075 (Forum Nov. 30, 2016) (“Respondent uses the at-issue domain name to pose as Complainant’s CEO by means of email addresses at the confusingly similar domain name in an attempt to determine Complainant’s ability to process a transfer. Using the domain name in this manner is neither a bona fide offering of goods and services under Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii)”).
Given the forgoing, Complainant satisfies its initial burden and conclusively demonstrates Respondent’s lack of rights and lack of interests in respect of the at-issue domain name under Policy ¶ 4(a)(ii).
The at-issue domain name was registered and is being used in bad faith.
First, Respondent uses the at-issue domain name in connection with an apparent email phishing scheme. In that regard, Respondent sent multiple emails from the at-issue domain name to third parties having prior relationships with Complainant. Respondent’s emails identify themselves as being from “fundssecurity at sipcorporation.org.” Complainant attests through its General Counsel that Respondent’s emails are being directed to investors.
The substance of at least one of Respondent’s bogus emails insists that the recipient’s account is blocked and can only be released by the payment of an “access charge fee” mandated by the “Federal Monitory Act.” Both quoted terms are fictional creations of Respondent. In any case, Respondent’s scam email leaves its recipient with a false impression that a payment needs to be made (per Respondent’s direction) to release otherwise blocked funds. Complainant has been advised that at least one third party claims to have lost an amount in excess of $20,000 as an unwitting victim of Respondent’s scheme. Respondent’s use of the confusingly similar domain name to misappropriate Complainant’s identity and repeatedly attempt to perpetrate theft by deceit shows Respondent’s culpability rising to well beyond bad faith registration and use of the <sipcorporation.org> domain name under the Policy. See Abbvie, Inc. v. James Bulow, FA 1701075 (Forum Nov. 30, 2016) (“Respondent uses the <abbuie.com> domain name to impersonate Complainant’s CEO. Such use is undeniably disruptive to Complainant’s business and demonstrates bad faith pursuant to Policy ¶ 4(b)(iii), and/or Policy ¶ 4(b)(iv)”); see also, CoorsTek, Inc. v. Gwendolyn K Bohn / CoorsTek Inc, FA 1764186 (Forum Feb. 2, 2018) (“Respondent sent email to users seeking employment at Complainant’s business and asked for personal information such as a photo ID. Therefore, the Panel finds Respondent’s emails constitute a phishing scheme and this indicates bad faith registration and use per Policy ¶ 4(a)(iii).”).
Finally, Respondent had actual knowledge of Complainant’s rights in the SIPC mark when it registered <sipcorporation.org> as a domain name. Respondent’s actual knowledge is evident from Respondent’s use of the domain name to pose as Complainant in an email phishing scheme. Respondent’s registration and use of the <sipcorporation.org> domain name with knowledge of Complainant’s rights in such domain name further shows Respondent’s bad faith pursuant to Policy ¶ 4(a)(iii). See Minicards Vennootschap Onder FIrma Amsterdam v. Moscow Studios, FA 1031703 (Forum Sept. 5, 2007) (holding that respondent registered a domain name in bad faith under Policy ¶ 4(a)(iii) after concluding that respondent had actual knowledge of Complainant's mark when registering the disputed domain name); see also, Univision Comm'cns Inc. v. Norte, FA 1000079 (Forum Aug. 16, 2007) (rejecting the respondent's contention that it did not register the disputed domain name in bad faith since the panel found that the respondent had knowledge of the complainant's rights in the UNIVISION mark when registering the disputed domain name).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <sipcorporation.org> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: July 13, 2021
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