FIL Limited v. Li jie
Claim Number: FA1702001718900
Complainant is FIL Limited (“Complainant”), represented by CSC Digital Brand Services AB, Sweden. Respondent is Li jie (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <fidelity.cn.com>, registered with PDR Ltd. d/b/a PublicDomainRegistry.com.
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.
The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Complainant participated in the mandatory CentralNic Mediation, and the mediation process was terminated on February 21, 2017.
Complainant submitted a Complaint to the Forum electronically on February 24, 2017, and the Forum received payment on February 24, 2017.
On February 27, 2017, PDR Ltd. d/b/a PublicDomainRegistry.com confirmed by e-mail to the Forum that the <fidelity.cn.com> domain name is registered with PDR Ltd. d/b/a PublicDomainRegistry.com and that Respondent is the current registrant of the name. PDR Ltd. d/b/a PublicDomainRegistry.com has verified that Respondent is bound by the PDR Ltd. d/b/a PublicDomainRegistry.com registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with the CentralNic Dispute Resolution Policy (the “CDRP Policy”).
On February 27, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 20, 2017 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@fidelity.cn.com. Also on February 27, 2017, 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 National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On March 3, 2017, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed the Honorable Charles K. McCotter, Jr. (Ret.) 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, the 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. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the CDRP Policy, CDRP 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 registered the FIDELITY mark with China’s State Administration for Industry and Commerce (“SAIC”) (e.g., Reg. No. 939,820, registered Jan. 28, 1997). Respondent’s <fidelity.cn.com> domain name is identical as it incorporates Complainant’s entire FIDELITY mark and merely adds a period, the country code “cn”, and the generic top-level domain “.com” (“gTLD”).
Respondent has no rights or legitimate interests in <fidelity.cn.com>. Respondent is not commonly known by the FIDELITY mark, nor is Respondent sponsored or affiliated with Complainant. Complainant has not given Respondent permission to use the mark. Additionally, Respondent doesn’t use the disputed domain for any bona fide offering of goods or services or legitimate noncommercial or fair use. Respondent’s resolving webpage prominently displayed Complainant’s marks and designs to pass off as Complainant and take advantage of Complainant’s fame and notoriety. Further, the webpage contained a login option, presumably to phish for personal information belonging to Complainant’s users.
Respondent registered and uses the <fidelity.cn.com> in bad faith. Respondent used Complainant’s FIDELITY marks on its resolving webpage to create a strong likelihood of confusion between any relationship or connection between Respondent and Complainant. Additionally, Respondent used the disputed domain name to phish for information of users seeking Complainant’s services. Finally, Respondent had actual knowledge of Complainant’s mark because Respondent used the FIDELITY mark in its entirety and prominently displayed the marks and designs on the resolving webpage.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant, FIL Limited, serves millions of retail clients and intermediaries such as banks, financial advisors, and insurance companies, with international investments. Complainant established its business in 1969 and operates in 25 countries around the world. Complainant has rights in the FIDELITY mark through registration with SAIC (e.g., Reg. No. 939,820, registered Jan. 28, 1997). Respondent’s <fidelity.cn.com> domain name is identical to the FIDELITY mark.
Respondent, Li jie, registered the <fidelity.cn.com> domain name on September 30, 2016.
Respondent has no rights or legitimate interests in <fidelity.cn.com>. Respondent’s resolving webpage prominently displayed Complainant’s marks and designs to pass off as Complainant and take advantage of Complainant’s fame and notoriety. Further, the webpage contained a login option, presumably to phish for personal information belonging to Complainant’s users.
Respondent registered and uses the <fidelity.cn.com> 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 and is being used in bad faith.
The CDRP also requires that Complainant have paricipated 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 CDRP 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 and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
Complainant has rights in the FIDELITY mark under Policy ¶ 4(a)(i) through registration with the SAIC. See Watts Water Technologies Inc. v. Fuzhang Ye / Shenzhen Watts Pipeline Flow Control Ltd., FA 1623722 (Forum July 21, 2015) (“Since Complainant provides evidence of its registration for the trademark WATTS with the Chinese national authority the Panel is satisfied that it has trademark rights in that name”).
Respondent’s <fidelity.cn.com> is identical as it uses Complainant’s entire FIDELITY mark and adds a period, the China’s country code “cn”, and the gTLD “.com”.
Respondent has no rights or legitimate interests in <fidelity.cn.com>. Complainant has not authorized Respondent to use its FIDELITY mark. The WHOIS information identifies “Li Jie” as the registrant of the disputed domain name. Respondent is not commonly known by <fidelity.cn.com> under Policy ¶ 4(c)(ii). See Braun Corp. v. Loney, FA 699652 (Forum July 7, 2006) (concluding that the respondent was not commonly known by the disputed domain names where the WHOIS information, as well as all other information in the record, gave no indication that the respondent was commonly known by the domain names, and the complainant had not authorized the respondent to register a domain name containing its registered mark).
Respondent has failed to use <fidelity.cn.com> to make a bona fide offering of goods or services or a legitimate noncommercial or fair use. Respondent’s resolving webpage prominently displayed Complainant’s marks and designs to pass off as Complainant and take advantage of Complainant’s fame and notoriety. See Mortgage Research Center LLC v. Miranda, FA 993017 (Forum July 9, 2007) (“Because [the] respondent in this case is also attempting to pass itself off as [the] complainant, presumably for financial gain, the Panel finds the respondent is not using the <mortgageresearchcenter.org> domain name for a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).”).
Furthermore, Respondent used the <fidelity.cn.com> domain name to engage in a phishing scheme to obtain personal or financial information from users seeking Complainant’s services. See Google Inc. v. Pritam Singh / Pandaje Technical Services Pvt Ltd., FA 1660771 (Forum Mar. 17, 2016) (agreeing that respondent has not shown any bona fide offering of goods or services or any legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii) as the respondent used the complainant’s mark and logo on a resolving website containing offers for technical support and password recovery services, and soliciting Internet users’ personal information).
Respondent registered and used the <fidelity.cn.com> domain to disrupt Complainant’s business for personal gain by creating a likelihood for confusion. Therefore, Respondent engaged in bad faith. See Red Bull GmbH v. Gutch, D2000-0766 (WIPO Sept. 21, 2000) (finding that the respondent’s expected use of the domain name <redbull.org> would lead people to believe that the domain name was connected with the complainant, and thus is the equivalent to bad faith use).
Respondent registered and used the <fidelity.cn.com> domain in bad faith by using the domain name to engage in a phishing scheme. See Klabzuba Oil & Gas, Inc. v. LAKHPAT SINGH BHANDARI, FA1506001625750 (Forum July 17, 2015) (“Respondent uses the <klabzuba-oilgas.com> domain to engage in phishing, which means Respondent registered and uses the domain name in bad faith under Policy ¶ 4(a)(iii).”).
Respondent had actual knowledge of Complainant’s FIDELITY mark prior to registering the <fidelity.cn.com> domain name. Therefore, Respondent registered the domain name in bad faith under Policy ¶ 4(a)(iii). See 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).
Complainant having established all three elements required under the CDRP Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <fidelity.cn.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: March 17, 2017
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