National Futures Association v. Privacy service provided by Withheld for Privacy ehf
Claim Number: FA2206002002547
Complainant: National Futures Association of Chicago, Illinois, United States of America.
Complainant Representative: Barack Ferrazzano Kirschbaum & Nagelberg LLC of Chicago, Illinois, United States of America.
Respondent: Privacy service provided by Withheld for Privacy ehf of Reykjavik, Capital Region, International, IS.
REGISTRIES and REGISTRARS
Registries: Public Interest Registry
Registrars: NameCheap, Inc.
The undersigned certifies that he has acted independently and impartially, and, to the best of his knowledge, has no conflict of interests in serving as Examiner in this proceeding.
Terry F. Peppard, as Examiner.
Complainant submitted: June 29, 2022
Commencement: July 6, 2022
Default Date: July 21, 2022
Having reviewed the communications records, the Examiner finds that the Forum has discharged its responsibility under URS Procedure Paragraphs 3 and 4 and Rule 4 of the Rules for the Uniform Rapid Suspension System (the "Rules") to give Respondent adequate notice of the institution of this proceeding and to afford Respondent an opportunity for Respondent to appear and defend against the allegations of the Complaint.
Complainant requests that the domain name be suspended for the life of the registration.
Clear and convincing evidence.
URS Procedure¶1.2.6. requires that, in order to obtain a determination that a contested domain name should be suspended, Complainant must prove, by clear and convincing evidence, each of the following:
1. The registered domain name is identical or confusingly similar to
a mark for which Complainant holds a valid national or regional registration and that it is in current use;
2. Registrant has no right to or legitimate interest in the domain name;
and
3. The same domain name was registered and is now being used by
Respondent in bad faith.
Identity or Confusing Similarity
In its Complaint, Complainant shows that it holds a valid registration for the service mark NFA, which is on file with the United States Patent and Trademark Office as Registry No. 5,403,160, registered February 13, 2018, in International Class 045 (tracking and monitoring regulatory requirements for the derivative industry and its customers in the field of financial derivative instruments for regulatory compliance purposes and [related] alternative dispute resolutions services ….), and that the mark is in current use. Respondent does not dispute any of this.
For its part, the WHOIS record for the contested domain name, <cases-nfafutures.org>, reveals that Respondent registered it on April 19, 2022. Again, Respondent does not deny this.
There is also no dispute that the <cases-nfafutures.org> domain name is confusingly similar, to Complainant’s NFA service mark. The domain name differs from the mark only by the addition of the generic term “cases,” which relates to Complainant’s business of overseeing alternative dispute resolution services within its purview, plus a hyphen (-) and the term “futures,” which identifies one aspect of Complainant’s regulatory jurisdiction, and the generic Top Level Domain (“gTLD”) “.org.” This gTLD must be disregarded for purposes of our analysis of confusing similarity under the URS Procedure because every domain name requires a gTLD or other TLD. The hyphen (-) must likewise be disregarded because it neither changes nor adds anything to the meaning of the domain name. This leaves for consideration the added terms “futures” and “cases,” which singly and together signal Respondent’s intent misleadingly to target Complainant’s mark because of Complainant’s status as a regulatory authority and dispute resolution service provider in the field of financial derivatives.
It thus appears that Respondent has chosen the contested domain name in order to mimic as closely and deceptively as possible Complainant’s official domain name: <nfafutures.org>.
We therefore find that Complainant holds a valid registration for the NFA mark, and that it is in current use, and that Respondent’s <cases-nfafutures.org> domain name is confusingly similar to that mark.
Registrant’s Rights or Interests
There is nothing in the record before us suggesting that Respondent, whose domain name has been registered for only about ninety days, has become commonly known by that domain name. Indeed, the pertinent WHOIS information does not reveal any identifying name for Respondent, as all of its identifying and contact information has been cloaked in secrecy by the designation “REDACTED FOR PRIVACY.”
We turn then to the evidentiary record filed in this proceeding, which is devoid of any suggestion that Complainant has authorized Respondent to use Complainant’s NFA mark or to register and use a domain name incorporating that mark. Instead, the record shows that Respondent both registered and now uses the <cases-nfafutures.org> domain name for the sole purpose of confusing and abusing Internet users under cover of what is commonly called a “phishing” scheme by which it operates an e-mail exchange tool (MX) linked to the domain name in hopes of acquiring fraudulently the private and sensitive personal information of those seeking to avail themselves of Complainant’s services. In the circumstances here presented, it may safely be presumed that Respondent intends to profit illicitly from this scheme.
Because Respondent does not contest any of this, we conclude from the facts presented, and from their compelling implications, that Respondent’s use of the disputed domain name is neither in connection with a bona fide offering of goods or services nor a legitimate noncommercial or fair use. We therefore find that Respondent has neither any rights to nor any legitimate interests in the <cases-nfafutures.org> domain name.
BAD FAITH
Under the URS Procedure, essentially the same considerations which make it clear that Respondent has no rights to or legitimate interests in the challenged <cases-nfafutures.org> domain name are also pertinent to an analysis of the question whether the domain name has been registered and is being used in bad faith. See URS Procedure¶5.7. Accordingly, a finding of bad faith in the registration and use of the domain name follows directly from the above discussion of the absence of any rights to or legitimate interests accruing to Respondent from the facts presented in the Complaint filed in this proceeding.
We find from a review of the Complaint and supporting submissions that this proceeding was not brought in an abuse of the URS Procedure and that the Complaint does not contain any material falsehoods.
We further find that Complainant has proven all three required elements of the URS Procedure by clear and convincing evidence; and we therefore Order that the domain name <cases-nfafutures.org> be SUSPENDED for the duration of its registration.
Terry F. Peppard, Examiner
Dated: July 22, 2022
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