Cboe Global Markets, Inc., Cboe Exchange, Inc. and European Central Counterparty N.V. v. Redacted for Privacy / Privacy service provided by Withheld for Privacy ehf
Claim Number: FA2207002006246
Complainant is Cboe Global Markets, Inc., Cboe Exchange, Inc. and European Central Counterparty N.V. (“Complainant”), represented by Kevin M. Bovard of Baker & Hostetler LLP, Pennsylvania, USA. Respondent is Redacted for Privacy / Privacy service provided by Withheld for Privacy ehf (“Respondent”), Iceland.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <eurpoccp.uk.com> (“Domain Name”), 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.
Nicholas J.T. Smith as Panelist.
Complainant participated in the mandatory CentralNic Mediation, and the mediation process was terminated.
Complainant submitted a Complaint to the Forum electronically on July 28, 2022; the Forum received payment on July 29, 2022.
On July 29, 2022, NameCheap, Inc. confirmed by e-mail to the Forum that the <eurpoccp.uk.com> 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 the CentralNic Dispute Resolution Policy (the “Policy”).
On August 5, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 25, 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@eurpoccp.uk.com. Also on August 5, 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.
Having received no response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.
On August 29, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Nicholas J.T. Smith 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 to the CDRP Dispute Resolution Policy (“Rules”). Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the Policy, 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.
PRELIMINARY ISSUE: MULTIPLE COMPLAINANTS
In the instant proceedings, there are three Complainants. Paragraph 3(a) of the Rules provides that “[a]ny person or entity may submit to the Forum a complaint in accordance with the Policy and these Rules.” The Forum’s Supplemental Rule 1(e) defines “The Party Initiating a Complaint Concerning a Domain Name Registration” as a “single person or entity claiming to have rights in the domain name, or multiple persons or entities who have a sufficient nexus who can each claim to have rights to all domain names listed in the Complaint.”
Previous panels have interpreted the Forum’s Supplemental Rule 1(e) to allow multiple parties to proceed as one party where they can show a sufficient link to each other. For example, in Vancouver Org. Comm. for the 2010 Olympic and Paralymic Games & Int’l Olympic Comm. v. Malik, FA 666119 (Forum May 12, 2006), the panel stated:
It has been accepted that it is permissible for two complainants to submit a single complaint if they can demonstrate a link between the two entities such as a relationship involving a license, a partnership or an affiliation that would establish the reason for the parties bringing the complaint as one entity.
In Tasty Baking, Co. & Tastykake Invs., Inc. v. Quality Hosting, FA 208854 (Forum Dec. 28, 2003), the panel treated the two complainants as a single entity where both parties held rights in trademarks contained within the disputed domain names. Likewise, in Am. Family Health Srvs. Group, LLC v. Logan, FA 220049 (Forum Feb. 6, 2004), the panel found a sufficient link between the complainants where there was a license between the parties regarding use of the TOUGHLOVE mark.
The Panel has reviewed the Complaint and is satisfied that that Cboe Exchange, Inc. and European Central Counterparty N.V. are wholly-owned subsidiaries of Cboe Global Markets, Inc.. This is sufficient to establish a sufficient nexus or link between the Complainants such that they should be treated as a single entity in this proceeding referred to in the singular, as “Complainant”.
A. Complainant
Complainant offers securities and derivatives exchanges as well as other financial services. Complainant has rights in the EUROCCP mark through its registration of the mark with the United Kingdom Intellectual Property Office (“UKIPO”) (e.g., Reg. No. UK00002283084 registered January 3 2003). Respondent’s <eurpoccp.uk.com> domain name is virtually identical and confusingly similar to Complainant’s mark because it incorporates the EUROCCP mark in its entirety and adds the letter “p”, the “.uk” country code top-level domain (“ccTLD”), and the “.com” generic top-level domain (“gTLD”).
Respondent has no legitimate interests in the <eurpoccp.uk.com> domain name. Respondent is not commonly known by the Domain Name and Complainant has not authorized or licensed Respondent any rights in the EUROCCP mark. Additionally, Respondent does not use the Domain Name for any bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, the Domain Name is inactive and an email address incorporating the Domain Name is used to impersonate Complainant in conjunction with a phishing scheme.
Respondent registered and uses the <eurpoccp.uk.com> domain name in bad faith. Respondent registered the Domain Name with actual knowledge of Complainant’s rights in the EUROCCP mark as it impersonates Complainant for the purpose of engaging in phishing.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant holds trademark rights for the EUROCCP mark. The Domain Name is confusingly similar to Complainant’s EUROCCP mark. Complainant has established that Respondent lacks rights or legitimate interests in the Domain Name and that Respondent registered and has used the Domain Name in bad faith.
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 or is being used in bad faith.
The CDRP also requires that Complainant have participated in a CentralNic Mediation, and that said mediation must have been terminated prior to the consideration of the Complaint.
Given the similarity between the Uniform Domain Name Dispute Resolution Policy (“UDRP”) and the Policy, the Panel will draw upon UDRP precedent as applicable in rendering its decision.
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”).
Complainant asserts rights in the EUROCCP mark through its registration of the mark with the UKIPO (e.g., Reg. No. UK00002283084 registered January 3, 2003). Registration with the UKIPO can sufficiently establish rights in a mark under Policy ¶ 4(a)(i). See Russell & Bromley Limited v. KIM H. SUK, FA 1729773 (Forum June 12, 2017) (Registration with the UKIPO (or any other governmental authority) is sufficient to establish rights in a mark under Policy ¶4(a)(i), even if Respondent is located in another country.”).
The Panel finds that the <eurpoccp.uk.com> domain name is confusingly similar to Complainant’s EUROCCP mark because it consists of a minor misspelling of the EUROCCP mark (the addition of the letter “p”) and adds the top-level domain “.uk.com”. The addition of a TLD and a single letter fails to sufficiently distinguish a disputed domain name from a mark per Policy ¶ 4(a)(i). See OpenTable, Inc. v. Above.com Domain Privacy, FA 1626187 (Forum Aug. 10, 2015) (“Respondent’s <oipentable.com> domain name is confusingly similar to the OPENTABLE mark under Policy ¶ 4(a)(i) because the disputed domain merely adds the letter ‘i’... ”); see also Dansko, LLC v. zhang wu, FA 1757745 (Forum Dec. 12, 2017) (finding the <danskoshoes.us.com> domain name to be confusingly similar to the DANSKO mark under Policy ¶ 4(a)(i), despite the addition of the “.us” ccTLD and the “.com” gTLD).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(i).
Complainant alleges that Respondent holds no rights or legitimate interests in the Domain Name. In order for Complainant to succeed under this element, it must first make a prima facie case that Respondent lacks rights and legitimate interests in the Domain Name under Policy ¶ 4(a)(ii), and then the burden shifts to Respondent to show it does have rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006) and AOL LLC v. Gerberg, FA 780200 (Forum Sept. 25, 2006) (“Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.”). The Panel holds that Complainant has made out a prima facie case.
Complainant asserts that Respondent has no rights or legitimate interests in the Domain Name as Respondent is not commonly known by the Domain Name, nor has Complainant authorized Respondent to use the EUROCCP mark. Respondent has no relationship, affiliation, connection, endorsement or association with Complainant. WHOIS information can help support a finding that a respondent is not commonly known by the disputed domain name, especially where a privacy service has been engaged. See State Farm Mutual Automobile Insurance Company v. Dale Anderson, FA1504001613011 (Forum May 21, 2015) (concluding that because the WHOIS record lists “Dale Anderson” as the registrant of the disputed domain name, the respondent was not commonly known by the <statefarmforum.com> domain name pursuant to Policy ¶ 4(c)(ii)); see also Kohler Co. v. Privacy Service, FA1505001621573 (Forum July 2, 2015) (holding that the respondent was not commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii) where “Privacy Service” was listed as the registrant of the disputed domain name). The WHOIS lists “Redacted for Privacy / Privacy service provided by Withheld for Privacy ehf” as registrant of record. Coupled with Complainant’s unrebutted assertions as to absence of any affiliation or authorization between the parties, the Panel finds that Respondent is not commonly known by the Domain Name in accordance with Policy ¶ 4(c)(ii).
The Domain Name is inactive which by itself does not show a bona fide offering of goods and services. Complainant alleges, and provides evidence supporting its allegations, that Respondent uses an email address associated with Domain Name to attempt to pass itself off as Complainant in furtherance of a phishing scam by sending an e-mail to Complainant employees, impersonating the Complainant, directing the employees to provide their log-in details at a third-party site. Use of a disputed domain name to pass off as a complainant through emails is not a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii). See Emerson Electric Co. v. Adilcon Rocha, FA 1735949 (Forum July 11, 2017) (finding that respondent’s attempt to pass off as complainant through emails does not constitute a bona fide offering of goods or services and, as such, respondent lacked rights or legitimate interests in the disputed domain name); see also Caterpillar Inc. v. ruth weinstein, FA 1770352 (Forum Mar. 7, 2018) (“Use of a disputed domain name in an attempt to pass itself off as a complainant and to conduct a phishing scheme is indicative of a failure to use said domain name in connection with a bona fide offer of goods and services per Policy ¶ 4(c)(i) or a legitimate noncommercial or otherwise fair use per Policy ¶ 4(c)(iii).”).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(ii).
The Panel finds that, at the time Respondent registered the Domain Name, July 8, 2022, Respondent had actual knowledge of Complainant’s EUROCCP mark. The Respondent has used the Domain Name to pass itself off as Complainant for financial gain. In the absence of rights or legitimate interests of its own this demonstrates registration in bad faith under Policy ¶ 4(a)(iii).
The Panel finds that Respondent registered and uses the Domain Name in bad faith as Respondent uses an email address associated with the Domain Name to attempt to pass itself off as the Complainant to disrupt the Complainant’s business or for financial gain. Using a disputed domain name to pass off as a complainant via email can demonstrate bad faith under Policy ¶¶ 4(b) (iii) and (iv). 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 Qatalyst Partners LP v. Devimore, FA 1393436 (Forum July 13, 2011) (finding that using the disputed domain name as an e-mail address to pass itself off as the complainant in a phishing scheme is evidence of bad faith registration and use). Accordingly, the Panel finds that Respondent registered and uses the Domain Name in bad faith pursuant to Policy ¶ 4(b)(iv).
The Panel while noting that the Policy only requires that a complainant show that a respondent registered or used a domain name at issue in bad faith, finds that the Respondent has registered and used the Domain Name in bad faith under Policy ¶ 4(a)(iii).
Having established all three elements required under the Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <eurpoccp.uk.com> domain name be TRANSFERRED from Respondent to Complainant.
Nicholas J.T. Smith, Panelist
Dated: August 30, 2022
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