Haun Ventures Management LP v. Donald Osufia
Claim Number: FA2206001999054
Complainant is Haun Ventures Management LP (“Complainant”), represented by Susanna P. Lichter of Wilson Sonsini Goodrich & Rosati, California, USA. Respondent is Donald Osufia (“Respondent”), Nigeria.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <haunventures.co>, 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.
Steven M. Levy, Esq. as Panelist.
Complainant submitted a Complaint to the Forum electronically on June 3, 2022; the Forum received payment on June 3, 2022.
On June 4, 2022, NameCheap, Inc. confirmed by e-mail to the Forum that the <haunventures.co> 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 8, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 28, 2022 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@haunventures.co. Also on June 8, 2022, 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.
On June 14, 2022, Respondent submitted a brief email was to the Forum which did not address the Complaint.
Having received no response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.
On July 6, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Steven M. Levy, Esq. 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, Haun Ventures Management LP, is a well-known venture capital firm focused on investing in so-called “Web 3” technologies. Complainant has established common-law rights in the trademark HAUN VENTURES through the mark’s close connection with Complainant’s commercial activities since March of 2022. Respondent’s <haunventures.co> domain name, registered on April 20, 2022, is identical or confusingly similar to Complainant’s mark because it contains the mark in its entirety, and merely adds the top-level domain “.co”, to form the disputed domain name.
Respondent lacks rights and legitimate interests in the <haunventures.co> domain name. Respondent is not commonly known by the disputed domain name, nor has Complainant authorized or licensed Respondent to use its HAUN VENTURES mark in the disputed domain name. Respondent does not use the domain name in connection with any bona fide offering of goods or services and it does not make a legitimate non-commercial or fair use thereof. Rather, Respondent uses the confusingly similar nature of the disputed domain name in order to harvest personal information from Internet users as part of a phishing scheme.
Respondent registered and uses the <haunventures.co> domain name in bad faith as it leverages the confusingly similar nature of the disputed domain name as part of a phishing scheme in which it claims to offer investing services for commercial gain. Respondent’s registration and use of the disputed domain name also constitutes opportunistic bad faith. Finally, Respondent registered the disputed domain name with actual knowledge of Complainant’s rights in the HAUN VENTURES mark.
B. Respondent
Respondent failed to submit a Response in this proceeding. However it submitted a brief email to the Forum stating “I am just seeing your email, I lost my dad and it has limited my online presence. First I got a mail from my hosting company about this and I told them I am a freelancer that get a lot of job from people I don't know so it's difficult to verify who owns what. I have tried reaching the person that gave me that job but even then email he use has been incommunicado. I will appeal to you for a small refund of my personal money so you can take the domain. I am just struggling to feed my family and I don’t want any troubles.”
- Complainant has demonstrated that it owns common-law rights in the HAUN VENTURES trademark and that the disputed domain name is confusingly similar to the mark;
- Respondent is not commonly known by the disputed domain name, its use for a website that impersonates Complainant in furtherance of a phishing scheme is not a bona fide use or a legitimate noncommercial or fair use; and
- Respondent has registered and uses the disputed domain name in bad faith (and has engaged in opportunistic bad faith) where it hosts a phishing website based on confusion with Complainant’s mark and aimed at harvesting sensitive information from users.
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 substantive 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”).
Complainant claims common law rights in the HAUN VENTURES mark. Under Policy ¶ 4(a)(i), common law rights in a mark may be sufficient in lieu of a registered trademark, and may be demonstrated through use of the mark which has resulted in it having achieved a secondary meaning. See Oculus VR, LLC v. Ivan Smirnov, FA 1625898 (Forum July 27, 2015) (holding, “A Complainant does not need to hold registered trademark rights in order to have rights in a mark under Policy ¶ 4(a)(i) and it is well established that a Complainant may rely on common law or unregistered trademarks that it can make out.”) While Complainant has submitted a copy of its pending trademark application at the United States Patent and Trademark Office, this is insufficient to prove that it owns rights to its claimed HAUN VENTURES mark. However, the Panel also agrees that Complainant does not need to provide evidence of a trademark registration to establish rights in its mark.
Complainant asserts common law rights in the HAUN VENTURES mark, contending that it has established secondary meaning through use in commerce. Secondary meaning may be established through evidence that demonstrates a complainant’s mark, including one that incorporates a personal name, has been used in connection with a complainant’s commercial activities. See Karen Finerman v. Ben Johnston / Bookclout, FA 1606620 (Forum Apr. 7, 2015) (finding that “Complainant has presented evidence that her name, KAREN FINERMAN, has achieved widespread recognition in connection with financial, charitable and other services, such that KAREN FINERMAN has obtained secondary meaning as identifying Complainant as the source of the services she offers.”) Complainant’s HAUN VENTURES mark is based on the personal name of its founder, Katie Haun. Complainant asserts that its HAUN VENTURES mark has been used closely in connection with and is intertwined with Complainant’s commercial activities and has been recognized as such to the point where it has gained secondary meaning as a trademark. In support, it submits reports of its various venture capital deals dating back to July 20, 2021[i]; copies of news articles from such outlets as PRNewswire.com, BusinessInsider.com, Wired.com, CNBC.com,, TechCrunch.com, and Mirror.com; and promotion of the mark on its Twitter.com page. Although it appears that the HAUN VENTURES mark has only been used for a relatively short time, the evidence presented does shows that it has received rather intense attention in that time. As such, the Panel finds that Complainant has developed and demonstrated common law rights in its mark sufficient to satisfy the threshold standard of Policy ¶ 4(a)(i).
Next, Complainant argues that Respondent’s <haunventures.co> domain name is identical or confusingly similar to the HAUN VENTURES mark. Under Policy ¶ 4(a)(i), incorporating a mark in its entirety with the addition of a top-level domain does not differentiate a disputed domain name from a protected mark. See Bittrex, Inc. v. Privacy protection service - whoisproxy.ru, FA 1759828 (Forum Jan. 12, 2018) (“The Panel here finds that the <bittrex.market> domain name is identical to the BITTREX mark under Policy ¶ 4(a)(i).”) The disputed domain name incorporates the HAUN VENTURES mark in its entirety and adds the “.co” top-level domain which does not add any substance or avoid confusion. As such, the Panel finds that Respondent’s domain name is identical or confusingly similar to Complainant’s mark under Policy ¶ 4(a)(i).
It is well accepted that Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii). Should it succeed in this effort, the burden then shifts to Respondent to show that it does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“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”).
Complainant contends that Respondent lacks rights or legitimate interests in the <haunventures.co> domain name because Respondent is not commonly known by the disputed domain name, nor has Complainant authorized or licensed to Respondent any rights in the HAUN VENTURES mark. Without evidence to the contrary, any information in the WHOIS record that reveals a registrant name that is materially different from the disputed domain name may be used to determine that it is not commonly known by the disputed domain name. See PragmaticPlay Limited v. Robert Chris, FA 1932464 (Forum Mar. 23, 2021) (“The WHOIS information of record lists the registrant as ‘Robert Chris,’ and no other information of record suggests Respondent is commonly known by the domain name. Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).”). Additionally, lack of authorization to use a complainant’s mark may indicate that the respondent is not commonly known by the disputed domain name. See Deutsche Lufthansa AG v. Mohamed elkassaby, FA 1801815 (Forum Sep. 17, 2018) (“The WHOIS lists ‘Mohamed elkassaby’ as registrant of record. Coupled with Complainant’s unrebutted assertions as to absence of any affiliation between the parties, the Panel finds that Respondent is not commonly known by the Domain Name in accordance with Policy ¶ 4(c)(ii).”) Here, Respondent used a privacy service to mask its identity in the disputed domain name’s public WHOIS record and the information revealed by the concerned Registrar after the Complaint was filed names the registrant of the domain name as “Donald Osufia.” Additionally, there is no evidence to suggest that Respondent was authorized to use Complainant’s HAUN VENTURES mark. Therefore, the Panel finds no basis upon which to conclude that Respondent is commonly known by the disputed domain name under Policy ¶ 4(c)(ii).
Complainant next argues that Respondent uses the <haunventures.co> domain name in furtherance of a phishing scheme is not a legitimate use. Although the Complaint does not specifically cite Policy ¶¶ 4(c)(i) or (iii), the Panel will interpret the arguments made and the evidence presented in accordance with the entirety of the Policy. Phishing has been defined as a practice that seeks illicit commercial gain by harvesting valuable personal or financial information from internet users through deceptive emails, pop-ups, or other fraudulent methods. See, e.g., Juno Online Servs., Inc. v. Iza, FA 245960 (Forum May 3, 2004) (defining “phishing” as “the use of e-mails, pop-ups or other methods to trick Internet users into revealing credit card numbers, passwords, social security numbers and other personal information that may be used for fraudulent purposes”). Past panels have found that a respondent’s use of a confusingly similar domain name to phish for Internet user’s valuable personal information is neither a bona fide offering of goods or services nor a legitimate noncommercial or fair use. See HOPE worldwide, Ltd. v. Jin, FA 320379 (Forum Nov. 11, 2004) (holding that a domain name that “is confusingly similar to Complainant’s mark, redirects Internet users to a website that imitates Complainant’s website, and is used to acquire personal information from Complainant’s potential associates” does not fall within the parameters of Policy ¶¶ 4(c)(i) or (iii)). Here, the disputed domain name’s resolving website, screenshots of which have been submitted by Complainant, prominently displays Complainant’s HAUN VENTURES mark, purports to offer venture capital investing services, and includes pictures and biographies under the headline “OUR TEAM” where Complainant’s founder, Ms. Haun, is listed and presented as if she is affiliated with Respondent. Further, the disputed domain’s resolving webpage features a “Register” page asking for visitors to enter into their personal information. This appears, to the Panel, as a straightforward impersonation of Complainant and Respondent has not offered any explanation for its actions here other than to state that it is a freelancer acting at the direction of an unnamed third party. As Complainant has made a prima facie case which has not been rebutted by Respondent, upon a preponderance of evidence presented the Panel finds that Respondent is not using the disputed domain name for any bona fide offering of goods or services and is not making a legitimate noncommercial or fair use thereof under Policy ¶¶ 4(c)(i) and (iii).
Complainant asserts that Respondent registered the <haunventures.co> domain name with actual knowledge of Complainant’s rights in the HAUN VENTURES mark. Use of a confusingly similar domain name to feature content that seeks to imitate a complainant demonstrates a respondent’s actual knowledge of a complainant’s rights in a mark. See Pfizer, Inc. v. Suger, D2002-0187 (WIPO Apr. 24, 2002) (finding that because the link between the complainant’s mark and the content advertised on the respondent’s website was obvious, the respondent “must have known about the Complainant’s mark when it registered the subject domain name”). Respondent incorporates the entirety of Complainant’s HAUN VENTURES mark in the disputed domain name and purports to offer financial services similar to those provided by Complainant on the domain name’s resolving webpage. Furthermore, the disputed domain name was registered on April 20, 2022, only a few weeks after the launch of Complainant’s business in March of that year. Therefore, the Panel finds that Respondent had actual knowledge in Complainant’s HAUN VENTURES mark at the time that it registered the disputed domain name.
Complainant further argues that Respondent uses its HAUN VENTURES mark in the <haunventures.co> domain name in bad faith, financially benefitting from the confusing similarity between the domain name and Complainant’s mark. Capitalizing on the confusing similarity of a domain name to benefit from the valuable goodwill of a protected mark and misleading internet users as to the source of the domain name is evidence of bad faith pursuant to Policy ¶ 4(b)(iv). See Am. Univ. v. Cook, FA 208629 (Forum Dec. 22, 2003) (“Registration and use of a domain name that incorporates another's mark with the intent to deceive Internet users in regard to the source or affiliation of the domain name is evidence of bad faith.”) This is particularly true for phishing and other fraud. Rocket Mortgage, LLC v. Daniel Ambrose / Rocket Mortgage Group, FA 1999496 (Forum July 12, 2022) (bad faith found where “Respondent has registered and is using the domain name in bad faith for the purpose of phishing for personal information from unsuspecting customers of Complainant.”) Respondent incorporates the entirety of Complainant’s HAUN VENTURES mark in the <haunventures.co> domain name in order to deceive users into believing they have successfully accessed a website originating from, or authorized by, Complainant. To further the confusing similarity, Respondent displays Complainant’s mark throughout the disputed domain name’s resolving webpage, it mentions “Katie Haun” as a member of “Our Team”, and it includes a “Register” page that prompts users to input their information. Despite submitting a brief email to the Forum in which it seeks to deflect responsibility for its actions, Respondent has not offered any explanation of its activities that conflicts with Complainant’s assertions or evidence. On the basis of the evidence presented, the Panel finds that Respondent has registered and uses the <haunventures.co> domain name with the intent of attracting and harvesting sensitive information from internet users for commercial benefit in bad faith based on a likelihood of confusion with the HAUN VENTURES mark pursuant to Policy ¶ 4(b)(iv).
Complainant further argues that Respondent’s registration and use of the <haunventures.co> domain name constitutes opportunistic bad faith as the domain name is obviously connected to Complainant’s mark and was registered soon after Complainant launched its business. Panels have found evidence of opportunistic bad faith registration and use where the timing of a registration indicates a respondent’s intention to capitalize on a new or nascent trademark as it grows in reputation. See Kylie Jenner, Kylie Jenner, Inc. and Whalerock Celebrity Subscription LLC v. Thevan Thirumalla, TVM Names and Kendall Jenner, Kendall Jenner, Inc. and Whalerock Celebrity Subscription LLC v. Jorly James, Cooknames, D2015-1189 and D2015-1190 consolidated (WIPO Aug. 21, 2015) (bad faith registration and use “has been found to occur: shortly before or after a publicized merger between companies, but before any new trademark rights in the combined entity have arisen; or when the respondent (e.g., as a former employee or business partner, or other informed source) seeks to take advantage of any rights that may arise from the complainant's enterprises; or where the potential mark in question is the subject of substantial media attention….”); Amazon Technologies, Inc. v. harshit dhingaun, FA 1619696 (Forum June 10, 2015) (holding that the respondent had demonstrated opportunistic bad faith according to Policy ¶ 4(a)(iii), when it registered the <amazonfashionindia.com> and <amazonindiafashion.com> domain names within days after the announcement of the complainant’s sponsorship of India Fashion Week). Respondent incorporates the entirety of Complainant’s HAUN VENTURES mark in the disputed domain name and other indicia meant to impersonate Complainant, as noted above. As Respondent registered the disputed domain name just a few weeks after Complainant launched its business and received widespread publicity for its mark, the Panel finds that Respondent registration and use of the disputed domain name constitutes opportunistic bad faith and further supports its finding in favor of Complainant under 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 <haunventures.co> domain name be TRANSFERRED from Respondent to Complainant.
Steven M. Levy, Esq., Panelist
Dated: July 13, 2022
[i] The Panel notes that the earliest of these deals predates Complainant’s claimed March, 2022 inception of its trademark but finds that any inconsistency is of limited relevance as both predate the April 20, 2022 registration date of the disputed domain name.
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