DECISION

 

Nadav Sarel v. Dean Johnson / Trade VX Ltd

Claim Number: FA1710001755270

 

PARTIES

Complainant is Nadav Sarel (“Complainant”), represented by Dotan Baruch of Barnea & Co Law Offices (FOA Dr. Dotan Baruch), Israel.  Respondent is Dean Johnson / Trade VX Ltd (“Respondent”), United Kingdom.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <vxtrades.com>, registered with GoDaddy.com, LLC.

 

PANEL

The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.

 

John J. Upchurch as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to the Forum electronically on October 24, 2017; the Forum received payment on October 24, 2017.

 

On October 24, 2017, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <vxtrades.com> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name.  GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, LLC 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 November 1, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 21, 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@vxtrades.com.  Also on November 1, 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 Forum transmitted to the parties a Notification of Respondent Default.

 

On November 27, 2017, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed John J. Upchurch 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.

 

RELIEF SOUGHT

Complainant requests that the domain name be transferred from Respondent to Complainant.

 

PARTIES' CONTENTIONS

A.   Complainant

1.    Complainant uses its VX TRADES name to offer internet users market signals for the purpose of facilitating trading activities in the capital market.  The VX TRADES name is recognized and familiar among the traders in the capital market.  As of the date hereof, there are approximately 10,000 users registered to Complainant’s offering.  Respondent’s <vxtrades.com> domain name is identical to the VX TRADES name since it incorporates Complainant’s entire mark.  Moreover, Complainant is the rightful owner of <vxtrades.com>.

2.    Respondent does not have rights or legitimate interests in <vxtrades.com>.  Respondent hacked Complainant’s website through unauthorized use of the username and password registered with the Registrar.  Respondent does not use the disputed domain name in connection with a bona fide offering of goods or services.  Rather, Respondent is intentionally tarnishing the offerings of Complainant, with libelous, defamatory, and disparaging content, through the disputed domain name.  As Complainant is technically unable to remedy the situation, Respondent’s continued use impairs and causes substantial damage to Complainant’s business.

3.    Respondent’s registration and use of the <vxtrades.com> domain name is in bad faith. The disputed domain name was hacked by Respondent, disrupting Complainant’s business by presenting libelous, defamatory, and disparaging content regarding Complainant.  Further, Respondent is diverting internet users to the disputed domain name and creating a likelihood of confusion by using Complainant’s VX TRADES name.

 

B.   Respondent

1.    Respondent did not submit a Response.

 

FINDINGS

1.    Respondent’s <vxtrades.com> domain name is confusingly similar to Complainant’s VX TRADES mark.

2.    Respondent does not have any rights or legitimate interests in the <vxtrades.com> domain name.

3.    Respondent registered or used the <vxtrades.com> domain name in bad faith.

 

DISCUSSION

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 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.”).

 

Identical and/or Confusingly Similar

Complainant uses the VX TRADES mark to offer internet users market signals for the purpose of facilitating trading activities in the capital market.  Complainant argues that the VX TRADES name is recognized and familiar among the traders in the capital market.  Complainant asserts that it is the rightful owner of <vxtrades.com> and Respondent hacked the domain.  Complainant further asserts that <vxtrades.com> has approximately 10,000 registered users, evincing trade name and media recognition.  A complainant does not need to have a registered trademark to show rights in a mark under Policy ¶ 4(a)(i).  Moreover, a complainant may demonstrate common law rights to a trade name by establishing it has a secondary meaning through longstanding use, evidence of holding an identical domain, or media recognition.  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.”). See also Marquette Golf Club v. Al Perkins, 1738263 (Forum July, 27, 2017) (finding that Complainant had established its common law rights in the MARQUETTE GOLF CLUB mark with evidence of secondary meaning, including “longstanding use; evidence of holding an identical domain name; media recognition; and promotional material/advertising.”).  Therefore, the Panel finds Complainant has established common law rights to the VX TRADES name.

 

Complainant argues the disputed domain name is identical to the VX TRADES name because it incorporates the trade name in its entirety.  Incorporating a complainant’s trade name in its entirety can evince a disputed domain name is identical to the trade name.  See Cards Against Humanity, LLC v. sri winarti, FA 1736823 (Forum July 31, 2017) (“The Panel therefore finds Respondent’s <cardsagainsthumanity.us> to be identical to Complainant’s CARDS AGAINST HUMANITY mark.”).  Accordingly, the Panel finds that Respondent’s <vxtrades.com> is identical to Complainant’s trade name.

 

Rights or Legitimate Interests

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), 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) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name); see also 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.”).

 

Complainant argues that Respondent does not have rights or legitimate interests in <vxtrades.com>.  Complainant asserts that Respondent is not commonly known by the disputed domain name.  Here, the WHOIS information lists Respondent as “Dean Johnson” of “Trade VX Ltd.”  Despite the appearance that respondent may be commonly known by the disputed domain name, the absence of affirmative evidence beyond the WHOIS information is sufficient to show that the respondent is not known by that name.  See Google Inc. v. S S / Google International, FA1506001625742 (Forum Aug. 4, 2015) (“Respondent did identify itself as ‘Google International’ in connection with its registration of the Disputed Domain Name, and this is reflected in the WHOIS information.  However, Respondent has not provided affirmative evidence from which the Panel can conclude that Respondent was commonly known by the Disputed Domain Name before Respondent’s registration thereof.”).  As such, the Panel finds Respondent is not commonly known by <vxtrades.com>.

 

Next Complainant argues that Respondent does not use the disputed domain name in connection with a bona fide offering of goods or services.  Rather, Complainant contends that Respondent is intentionally tarnishing Complainant’s business by displaying with libelous, defamatory, and disparaging content on the <vxtrades.com> website.  Furthermore, because Complainant is technically unable to regain control of the domain name, Complainant asserts that Respondent’s content impairs and causes substantial damage to Complainant’s business.  The use of a disputed domain name to display disparaging content regarding the complainant’s business is not a bona fide use of the name.  See Weekley Homes, L.P. v. Fix My House Or Else?, FA 96609 (Forum Apr. 18, 2001) (finding that establishment of a website containing criticism is not a legitimate use of the <davidweekleyhome.com> domain name because the disputed domain name is confusingly similar to the complainant's DAVID WEEKLEY HOMES mark). Accordingly, the Panel finds Respondent is not using the disputed domain name in connection with a bona fide offering of goods or services.

 

Registration and Use in Bad Faith

Complainant argues that Respondent’s registration and use of the <vxtrades.com> domain name is bad faith.  Complainant asserts that the disputed domain name was hacked by Respondent, thereby disrupting Complainant’s business through libelous, defamatory, and disparaging content associated with Complainant’s offerings.  The use of complainant’s trade name in conjunction with a website displaying criticism or defamatory statements of complainant’s business evinces bad faith use of the disputed domain name.  See Diners Club Int’l, Ltd.  v. Infotechnics Ltd., FA 169085 (Forum Aug. 20, 2003)

 (“Respondent’s registration and use of a domain name nearly identical to Complainant’s mark to criticize Complainant’s business practices is evidence of registration and use of the <diners-club.net> domain name in bad faith pursuant to Policy ¶ 4(a)(iii).”); Diners Club Int’l, Ltd.  v. Infotechnics Ltd., FA 169085 (Forum Aug. 20, 2003) (“Respondent may have the right to post criticism of Complainant on the Internet, however, Respondent does not have the right to completely appropriate Complainant’s registered trademark in a domain name in a way that will mislead Internet users as to the source or affiliation of the attached website.”).  Therefore, the Panel finds that Respondent’s <vxtrades.com> was registered and used in bad faith pursuant to Policy ¶ 4(a)(iii).

 

DECISION

Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.

 

Accordingly, it is Ordered that the <vxtrades.com> domain name be TRANSFERRED from Respondent to Complainant.

John J. Upchurch, Panelist

Dated:  12/8/17