Goldfinger Bullion Reserve Corp. v. no
c/o Raymond DeYoung
Claim Number: FA0304000155893
PARTIES
Complainant is Goldfinger Bullion
Reserve Corp., Camarillo, CA (Complainant) represented by Glenn J.
Dickinson of Nordman, Cormany, Hair & Compton. Respondent is
Raymond DeYoung No, Lewisville, TX (Respondent).
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <e-bulloin.com>
registered with Tucows, Inc.
PANEL
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.
William H. Andrews, as Panelist.
PROCEDURAL HISTORY
Complainant submitted a Complaint to the
National Arbitration Forum (the Forum) electronically on April 25, 2003; the
Forum received a hard copy of the Complaint on April 28, 2003.
On April 28, 2003, Tucows, Inc. confirmed
by e-mail to the Forum that the domain name <e-bulloin.com> is
registered with Tucows, Inc. and that the Respondent is the current registrant
of the name. Tucows, Inc. has verified that Respondent is bound by the Tucows,
Inc. registration agreement and has thereby agreed to resolve domain-name
disputes brought by third parties in accordance with ICANN’s Uniform Domain
Name Dispute Resolution Policy (the Policy).
On May 7, 2003, a Notification of
Complaint and Commencement of Administrative Proceeding (the Commencement
Notification), setting a deadline of May 27, 2003 by which Respondent could
file a Response to the Complaint, was transmitted to Respondent via e-mail,
post and fax, to all entities and persons listed on Respondent’s registration
as technical, administrative and billing contacts, and to
postmaster@e-bulloin.com by e-mail.
A timely Response was received and
determined to be complete on May 19, 2003.
On June 2, 2003, pursuant to
Complainant’s request to have the dispute decided by a single-member Panel, the
Forum appointed William H. Andrews as Panelist.
RELIEF SOUGHT
Complainant requests that the domain name
be transferred from Respondent to Complainant.
PARTIES’
CONTENTIONS
A.
Complainant
Complainant contends the site, <e-bulloin.com>,
is confusingly similar to Complainant’s <e-bullion.com> site; that Respondent has no legitimate rights to
the site; and that the site was registered and used in bad faith, in that it
was used solely to divert customers from Complainant’s site.
B. Respondent
Respondent disclaims rights to the domain
name, <e-bulloin.com>, through his Response submitted on May 19,
2003. Respondent contends he has never
registered, used or claimed the domain name <e-bulloin.com>, that
he never had any business or personal dealings with a company named Tucows,
Inc., the Registrar of record, and that he never expressly or impliedly
consented to the use of his name for the purpose of registering the site.
FINDINGS
Complainant is and has been the
registered owner of the <e-bullion.com> domain name since March 1,
1999. Complainant has used the site in
connection with its business, offering on-line investment, trading and exchange
of electronic credits backed by precious metals. On April 15, 2003, Complainant discovered that someone had posted
a website, <e-bulloin.com>, without Complainant’s
authorization. The <e-bulloin.com>
site was identical in its pages and layout to Complainant’s site.
DISCUSSION
Paragraph 15(a) of the Rules for Uniform
Domain Name Dispute Resolution Policy (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 the 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 the Respondent is identical or confusingly similar to
a trademark or service mark in which the Complainant has rights;
(2) the
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.
Complainant contends that the <e-bulloin.com>
site is confusingly similar to <e-bullion.com>, a site in which
Complainant has rights. The panel
agrees. The transposition of letters
does not create a distinct mark capable of overcoming a showing of confusing
similarity. See Google Inc. v. John
G., FA 106084 (Nat. Arb. Forum Apr. 26, 2002), which found that the name
<googel.com> was confusingly similar and noting that the transposition of
letters did not establish a distinct mark). Complainant uses the word “bullion”
to identify its online trading services in gold bullion and other precious metals. Complainant has shown that it has rights in
the <e-bullion.com> mark through its submissions, which are
unrefuted. Complainant notes that the
term “bulloin” is not a word within the English language, nor is it the name of
a place. No rights have been asserted
by Respondent in the “bulloin” name, and there is no apparent explanation for
use of the term “bulloin” in the registered site other than to divert would-be
users of Complainant’s site.
Complainant contends that Respondent’s
wholesale copying of two pages from complainant’s <e-bullion.com> domain
name, and creation of a log-on screen that mimicked Complainant’s similar
screen, all done with the intent to intercept confidential account information
from Complainant’s customers, is prima facie evidence that Respondent lacks
rights or legitimate interests in the <e-bulloin.com> domain name.
See Vivendi Universal Games and Davidson & Assocs., Inc. v. Ronald A.
Ballard, FA 146621 (Nat. Arb. Forum March 13, 2002) (finding that the
“exploitation of the goodwill and consumer trust surrounding the BLIZZARD NORTH
mark to aid in [Respondent’s] illegal activities is prima facie evidence
of a lack of rights and legitimate interests in the disputed domain name”); see
also Hewlett-Packard Co. v. Inversiones HP Milenium C.A., FA 105775 (Nat.
Arb. Forum Apr. 12, 2002) (finding Respondent’s use of the confusingly similar
domain name <hpmilenium.com> to sell counterfeit versions of
Complainant’s HP products was not a bona fide offering of goods or services
pursuant to Policy ¶ 4(c)(i)).
Respondent does not contest Complainant’s
allegations, or any element of the Complaint, but instead avers that it was the
victim of identity theft and the disputed domain name was registered without
its consent. Respondent has further expressed a willingness to transfer the
disputed domain name. The Panel finds that this is evidence that Respondent
lacks rights or legitimate interests in the disputed domain name. See
Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO Dec. 21, 2000) (finding
that Respondent’s failure to submit a formal response combined with its
agreement at the onset of the Complaint to transfer the disputed names
satisfies all the requirements of 4(a)); see also Vertical Solutions Mgmt.,
Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000)
(finding that Respondent’s agreement to transfer and suggestion that a formal
Complaint be initiated to confirm transfer are evidence of Respondent’s lack of
legitimate interests).
Complainant argues that Respondent
used a confusingly similar domain name
to post a counterfeit website in order to facilitate the interception of
confidential information, and that the same is evidence that Respondent both
registered the disputed domain name with knowledge of Complainant’s mark and
used the domain name in bad faith. See Vivendi Universal Games and Davidson
& Assocs., Inc. v. Ronald A. Ballard, FA 146621 (Nat. Arb. Forum March
13, 2002) (stating that Respondent’s “creation of a likelihood of confusion for
the purposes of illegitimate commercial gain via theft not only runs afoul of
Policy ¶ 4(b)(iv), but violates Paragraph 2(c) of the UDRP”); see also Monsanto
Co. v. Decepticons, FA 101536 (Nat. Arb. Forum Dec. 18, 2001) (finding that
the use of the <monsantos.com> domain name to misrepresent to Internet
users some sponsorship by Complainant and to provide misleading information to
the public supported a finding of bad faith).
Indeed, no legitimate interest has been
set forth to contradict the assertions of Complainant and thereby establish a
legitimate use for the domain name <e-bulloin.com>. As has been noted, Respondent herein, does
not dispute any of the allegations of Complainant. Rather, Respondent alleges that he was not involved in
registration of the site, that he never had any business dealings with Tucows,
Inc, the registrar of record, and that he never gave permission, either express
or implied, for the use of his name in registering the site.
Because Complainant’s evidence is
uncontradicted, and because it appears to the panel, on the basis of the
aforementioned evidence, that the name <e-bulloin.com> is
confusingly similar to the name used for Complainant’s site, and that <e-bulloin.com>
was not used for legitimate business purposes, but in bad faith for the purpose
of diverting customers of Complainant, the Panel finds that the domain name
should be transferred.
DECISION
Having established all three elements
required under ICANN Policy, the Panel concludes that relief sought by
Complainant shall be GRANTED.
Accordingly, it is Ordered that the <e-bulloin.com>
domain name be TRANSFERRED from Respondent to Complainant.
William H. Andrews, Panelist
Dated: June 12, 2003
Click Here to return
to the main Domain Decisions Page.
Click
Here to return to our Home Page