Pantera Advisors LLC v. janes whiteman
Claim Number: FA2108001960212
Complainant is Pantera Advisors LLC (“Complainant”), represented by Scott Kareff of Schulte Roth & Zabel LLP, New York, USA. Respondent is janes whiteman (“Respondent”), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <panteracapitalglobalfx.com>, registered with Hosting Concepts B.V. d/b/a Registrar.eu.
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 August 18, 2021; the Forum received payment on August 19, 2021.
On August 26, 2021, Hosting Concepts B.V. d/b/a Registrar.eu confirmed by e-mail to the Forum that the <panteracapitalglobalfx.com> domain name is registered with Hosting Concepts B.V. d/b/a Registrar.eu and that Respondent is the current registrant of the name. Hosting Concepts B.V. d/b/a Registrar.eu has verified that Respondent is bound by the Hosting Concepts B.V. d/b/a Registrar.eu 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 August 30, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 20, 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@panteracapitalglobalfx.com. Also on August 30, 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 September 22, 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, Pantera Advisors LLC, is an investment adviser focused on ventures, tokens and projects related to blockchain technology, digital currency and crypto assets. Complainant has rights in the PANTERA mark based upon the registration with the United States Patent and Trademark Office (“USPTO”).
Respondent’s <panteracapitalglobalfx.com> domain name is virtually identical and confusingly similar to Complainant’s mark because it consists of Complainant’s PANTERA mark together with the generic term “capital global fx” and the “.com” generic top-level domain (“gTLD”).
Respondent does not have rights or legitimate interests in the <panteracapitalglobalfx.com> domain name. Respondent has no permission to use Complainant’s PANTERA mark and is not commonly known by the at-issue domain name. Additionally, Respondent doesn’t use the domain name for any bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent uses the domain to pass off as Complainant in furtherance of phishing.
Respondent registered and uses the <panteracapitalglobalfx.com> domain name in bad faith. Respondent disrupts Complainant’s business for commercial gain by passing off as Complainant at the disputed domain. Additionally, Respondent had actual or constructive knowledge of Complainant’s rights in the PANTERA mark at the time the disputed domain name was registered.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has rights in the PANTERA mark.
Complainant’s rights in the PANTERA mark existed prior to Respondent’s registration of the at-issue domain name.
Respondent is not authorized to use Complainant’s trademark.
Respondent uses the at-issue domain name to pass off as Complainant in furtherance of phishing.
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 ownership of a USPTO trademark registration for its PANTERA mark demonstrates Complainant’s rights in such mark under Policy ¶ 4 (a)(I). See DIRECTV, LLC v. The Pearline Group, FA 1818749 (Forum Dec. 30, 2018) (“Complainant’s ownership of a USPTO registration for DIRECTV demonstrate its rights in such mark for the purposes of Policy ¶ 4(a)(i).”).
The at-issue domain name consists of Complainant’s PANTERA trademark followed by the generic terms “capital,” “global” and “fx,” with all followed by the top level domain name “.com.” The differences between the at-issue <panteracapitalglobalfx.com> domain name and Complainant’s PANTERA trademark are insufficient to distinguish the domain name from Complainant’s trademark for the purposes of the Policy. Therefore, the Panel finds that pursuant to Policy ¶ 4(a)(i) Respondent’s <panteracapitalglobalfx.com> domain name is confusingly similar to Complainant’s PANTERA trademark. See Bloomberg Finance L.P. v. Nexperian Holding Limited, FA 1782013 (Forum June 4, 2018) (“Where a relevant trademark is recognizable within a disputed domain name, the addition of other terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) does not prevent a finding of confusing similarity under the first element.”); see also, 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). Absent contrary evidence of Policy ¶ 4(c) circumstances, or other evidence supporting a finding of Respondent’s having rights or legitimate interests in the domain name, 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 Charter Communications Holding Company, LLC v. Taha Shaikh / Tskdesigners, FA 1814475 (Forum Nov. 25, 2018) (finding no rights or legitimate interests in <spectrumfeature.com> because complainant never gave respondent permission to use the mark in any manner and “[p]anels may use these assertions as evidence that no rights or legitimate interests exist in a disputed domain name.”).
The WHOIS information for the at-issue domain name identifies the domain name’s registrant as “Janes Whiteman” and there is no evidence in the record which suggest that the Respondent is known by the at-issue domain name. Therefore, the Panel concludes that under Policy ¶ 4(c)(ii) Respondent is not commonly known by the at-issue domain name. See Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Forum July 17, 2006) (concluding that the respondent was not commonly known by the <coppertown.com> domain name where there was no evidence in the record, including the WHOIS information, suggesting that the respondent was commonly known by the disputed domain name).
Furthermore, Respondent uses <panteracapitalglobalfx.com>domain name to address a website that usurps Complainant’s name, logo and the corporate identity on the resolving webpage to attract investors and solicit clients under the false pretense that Respondent is Complainant. Additionally, visitors to Respondent’s <panteracapitalglobalfx.com> website are prompted to provide personal information and/or send funds to Respondent via the website. Respondent’s confusingly similar domain name gives internet users the false impression that Complainant is associated with, or sponsored by, the at-issue domain name and its website, when it is not. Respondent’s use of the at-issue domain name to pass itself off as Complainant and phish for the personal information and funds of third parties indicates neither a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See Dell Inc. v. Devesh Tyagi, FA 1785301 (Forum June 2, 2018) (“Respondent replicates Complainant’s website and displays Complainant’s products. The Panel finds that this use is not a bona fide offering of goods or services under Policy ¶¶ 4(c)(i) & (iii).”); see also Morgan Stanley v. Zhange Sheng Xu / Zhang Sheng Xu, FA1501001600534 (Forum Feb. 26, 2015) (“The Panel agrees that the respondent’s apparent phishing attempt provides further indication that the respondent lacks any rights or legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii).”).
Given the forgoing, Complainant satisfies its initial burden under Policy ¶ 4(a)(ii) and conclusively demonstrates Respondent’s lack of rights and lack of interests in respect of the at-issue domain name.
Respondent’s <panteracapitalglobalfx.com> domain name was registered and used in bad faith. As discussed below without limitation, bad faith circumstances are present which allow the Panel to conclude that Respondent acted in bad faith pursuant to paragraph 4(a)(iii) of the Policy.
First, Respondent registered and uses the confusingly similar at-issue domain name to trick internet users into believing that <panteracapitalglobalfx.com> is affiliated with Complainant, when it is not. Such use is disruptive to Complainant’s business and shows Respondent’s intent to befuddle third parties regarding the sponsorship and/or affiliation of the at-issue domain name and its related website. Respondent’s bad faith is thus indicated pursuant to Policy ¶¶ 4 (b)(iii) and/or (iv). See LoanDepot.com, LLC v. Kaolee (Kay) Vang-Thao, FA1762308 (Forum Jan. 9, 2018) (Finding that Respondent’s use of the disputed domain name to offer competing loan services disrupts Complainant’s business under Policy ¶ 4(b)(iii)); see also CAN Financial Corporation v. William Thomson / CNA Insurance, FA1401001541484 (Forum Feb. 28, 2014) (finding that the respondent had engaged in bad faith under Policy ¶ 4(b)(iv), by using a confusingly similar domain name to attract Internet users to its own website where it sold competing insurance services); see also, Capital One Fin. Corp. & Capital One Bank v. Howel, FA 289304 (Forum Aug. 11, 2004) (“The <capitalonebank.biz> domain name is confusingly similar to Complainant’s mark, it is being used to redirect internet users to a website that imitates Complainant’s credit application website, and it is being used to fraudently [sic] acquire personal information from Complainant’s clients. Respondent’s use of the domain name supports findings of bad faith registration and use pursuant to Policy ¶ 4(a)(iii).”).
Next, Respondent uses the domain name to pass itself off as Complainant in furtherance of a phishing scheme. Respondent’s use of the domain name to pose as Complainant and then phish for the personal information and funds of third-parties further indicates Respondent’s bad faith under the Policy ¶ 4(b)(iv). See Wells Fargo & Co. v. Mihael, FA 605221 (Forum Jan. 16, 2006) (“Complainant asserts,…that soon after the disputed domain name was registered, Respondent arranged for it to resolve to a web site closely resembling a legitimate site of Complainant, called a ‘doppelganger’ (for double or duplicate) page, the purpose of which is to deceive Complainant’s customers into providing to Respondent their login identification, social security numbers, and/or account information and Personal Identification Numbers…. The Panel finds that Respondent’s behavior, as alleged, constitutes bad faith registration and use of the subject domain name pursuant to Policy ¶ 4(a)(iii).”); see also, Zoetis Inc. and Zoetis Services LLC v. VistaPrint Technologies Ltd, FA1506001623601 (Forum July 14, 2015) (“Respondent’s attempt to use the <zoietis.com> domain name to phish for personal information in fraudulent emails also constitutes bad faith pursuant to Policy ¶ 4(a)(iii).”).
Finally, Respondent had actual knowledge of Complainant’s rights in the PANTERA mark when it registered <panteracapitalglobalfx.com> as a domain name. Respondent’s actual knowledge is evident from the notoriety of Complainant’s trademark as well as from Respondent’s use of the at-issue domain name and relevant website to pass off as Complainant as discussed elsewhere herein. Respondent’s registration and use of the confusingly similar <panteracapitalglobalfx.com> domain name with prior knowledge of Complainant’s rights in such domain name additionally 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 <panteracapitalglobalfx.com> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: September 23, 2021
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