Invesco Ltd. v. farhan khan
Claim Number: FA1606001679945
Complainant is Invesco Ltd. (“Complainant”), represented by Sam Gunn of Alston & Bird, LLP, Georgia, United States. Respondent is farhan khan (“Respondent”), Pakistan.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <globalinvesco.org>, registered with NameSilo, LLC.
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.
Kenneth L. Port as Panelist.
Complainant submitted a Complaint to the Forum electronically on June 17, 2016; the Forum received payment on June 17, 2016.
On June 17, 2016, NameSilo, LLC confirmed by e-mail to the Forum that the <globalinvesco.org> domain name is registered with NameSilo, LLC and that Respondent is the current registrant of the name. NameSilo, LLC has verified that Respondent is bound by the NameSilo, 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 June 20, 2016, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 11, 2016 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@globalinvesco.org. Also on June 20, 2016, 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 July 22, 2016, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Kenneth L. Port 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.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant uses the INVESCO mark in connection with its business of providing investment strategies and vehicles to its retail, institutional, and high net worth clients around the world. Complainant has registered the INVESCO mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 1,825,441, registered March 8, 1994), which establishes rights in the mark. See Compl., at Attached Ex. D. Respondent’s <globalinvesco.org> domain name is confusingly similar to the INVESCO mark as it incorporates the mark in its entirety, while adding the generic term “global” and the generic top-level domain (“gTLD”) “.org.”
Respondent has no rights or legitimate interests in the <globalinvesco.org> domain name. Respondent is not commonly known by the disputed domain name, nor has Complainant authorized Respondent to use the INVESCO mark. See Compl., at Attached Ex. B. Further, Respondent is making neither a bona fide offering of goods or services, nor a legitimate noncommercial or fair use through the <globalinvesco.org> domain name. Rather, the domain name resolves to an active website offering what appears to be a “too good to be true” investment opportunity promising outrageously unrealistic returns on investment. Further, the website displays a falsified Companies House registration certificate for Complainant’s Invesco Perpetual Global Series Limited. Finally, Respondent’s use of the domain to promote a fraudulent investment opportunity constitutes a phishing scheme, whereby Respondent seeks customer information and/or money from Internet users. See Compl., at Attached Ex. F (“Instant Payments 7 days a week,” “Register an Account,” and “Certificate of Incorporation of a Private Limited Company”).
Respondent is using the <globalinvesco.org> domain in bad faith. Respondent is using the disputed domain name to deceive Internet users and phish for personal contact information. Respondent has attempted to impersonate Complainant and/or its related affiliates through use of the INVESCO mark, and through a falsified Companies House registration certificate on the domain’s resolving webpage. Respondent previously held the registration of the domain through a privacy service. Lastly, Respondent had actual and/or constructive knowledge of the INVESCO mark and Complainant’s rights therein because of the mark’s fame, notoriety, and trademark registrations.
B. Respondent
Respondent failed to submit a Response in this proceeding. The <globalinvesco.org> domain name was registered November 12, 2015.
The Panel finds that the disputed domain name is confusingly similar to the Complainant’s valid and subsisting trademark, that the Respondent has no rights or legitimate interests in or to the disputed domain name, and that the Respondent used and registered the disputed 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 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.”).
The Panel finds that the disputed domain name is confusingly similar to the Complainant’s valid and subsisting trademark. The Complainant has adequately demonstrated its rights in and to the trademark INVESCO. Respondent arrives at the disputed domain name by merely incorporating the mark in its entirety, while adding the generic term “global” and the gTLD “.org.” This does not distinguish the disputed domain name from the registered trademark.
As such, the Panel finds that the disputed domain name and the Complainant’s trademark are confusingly similar.
The Panel finds that Respondent has no rights or legitimate interests in the <globalinvesco.org> domain name. Respondent is apparently not commonly known by the disputed domain name, and Complainant did not authorize Respondent to use the INVESCO mark. Complainant’s Attached Exhibit B, the WHOIS information regarding the disputed domain name, lists “farhan khan” as registrant of record. The Respondent has failed to submit a response in this proceeding. Therefore, in light of the available evidence, the Panel finds that there is no basis to find Respondent commonly known by the disputed domain name per Policy ¶ 4(c)(ii).
Further, Respondent is apparently making neither a bona fide offering of goods or services, nor a legitimate noncommercial or fair use, through the <globalinvesco.org> domain name. Rather, Complainant contends that the domain name resolves to an active website offering a fraudulent investment opportunity for the purpose of phishing for Internet users’ personal information. See Compl., at Attached Ex. F. Panels have found such use by a respondent consists of neither a bona fide offering of goods or services, nor a legitimate noncommercial or fair use. See Google Inc. v. Pritam Singh / Pandaje Technical Services Pvt Ltd., FA 1660771 (Forum March 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); see also Cramer Rosenthal McGlynn, LLC v. Bratu Stefan, FA 1351742 (Forum November 24, 2010) (“Respondent’s use of the disputed domain name to resolve to a website that purports to offer legal services that appears to be fake is not a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).”).
Therefore, the Panel finds that Respondent’s use of the domain constitutes neither a bona fide offering of goods or services, nor a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) and (iii) and that, therefore, Respondent lacks any rights or legitimate interests in or to the disputed domain name.
While Complainant does not make contentions that neatly fall within the articulated provisions of Policy ¶ 4(b), these provisions are meant to be merely illustrative of bad faith. Respondent’s bad faith may be demonstrated under the totality of the circumstances. See Digi Int’l Inc. v. DDI Sys., FA 124506 (Forum Oct. 24, 2002) (determining that Policy ¶ 4(b) sets forth certain circumstances, without limitation, that shall be evidence of registration and use of a domain name in bad faith); see also Twentieth Century Fox Film Corp. v. Risser, FA 93761 (Forum May 18, 2000) (“The requirement in the ICANN Policy that a complainant prove that domain names are being used in bad faith does not require that it prove in every instance that a respondent is taking positive action. Use in bad faith can be inferred from the totality of the circumstances even when the registrant has done nothing more than register the names.”).
Complainant contends that Respondent uses the domain in an attempt to phish for Internet users’ personal information. See Compl., at Attached Ex. F. Panels have held that use of a domain to phish for Internet users’ personal information constitutes bad faith under Policy ¶ 4(a)(iii). See Morgan Stanley v. Zhang Sheng Xu / Zhang Sheng Xu, FA 1600534 (Forum Feb. 16, 2015) (stating “Respondent’s use of the disputed domain name in furtherance of a phishing scheme constitutes bad faith registration and use pursuant to Policy ¶ 4(a)(iii)”).
Therefore, the Panel finds that Respondent’s use of the <globalinvesco.org> domain name falls within the purview of Policy ¶ 4(a)(iii).
Complainant argues that Respondent has attempted to pass itself off as Complainant and its affiliates through the use of the INVESCO mark and a falsified Companies House registration certificate at the resolving webpage. Panels have found evidence of bad faith under Policy ¶ 4(a)(iii) where a respondent uses a disputed domain name in an attempt to impersonate a complainant. See Monsanto Co. v. Decepticons, FA 101536 (Forum Dec. 18, 2001) (finding that the respondent's use of <monsantos.com> to misrepresent itself as the complainant and to provide misleading information to the public supported a finding of bad faith); see also Capital One Fin. Corp. & Capital One Bank v. Howel, FA 289304 (Forum Aug. 11, 2004) (“The <capitalonebank.biz> domain name is confusingly similar to Complainant’s mark, it is being used to redirect Internet users to a website that imitates Complainant’s credit application website, and it is being used to fraudulently [sic] acquire personal information from Complainant’s clients. Respondent’s use of the domain name supports findings of bad faith registration and use pursuant to Policy ¶ 4(a)(iii).”).
Therefore, the Panel finds that Respondent’s use of the <globalinvesco.org> domain name falls within the purview of Policy ¶ 4(a)(iii).
The Respondent has engaged a privacy service, and in doing so withholds identifying information. The consensus view amongst panels is that use of a privacy service, without more, cannot reach the threshold of bad faith registration and use. See WWF-World Wide Fund for Nature aka WWF International v. Moniker Online Services LLC and Gregory Ricks, D2006-0975 (WIPO November 1, 2006) (finding use of proxy registration service does not of itself indicate bad faith; there are many legitimate reasons for proxy registration services); see also Divex Limited v. ZJ, Sam Chang and Tim NG, D2007-0861 (WIPO September 21, 2007) (finding privacy services may be justified by the need to avoid spam and identity theft). However, the totality of the circumstances which surround a respondent’s engagement of a privacy service may give rise to a finding of bad faith registration and use. See, e.g., HSBC Finance Corporation v. Clear Blue Sky Inc. and Domain Manager, D2007-0062 (WIPO June 4, 2007) (finding a change of privacy service after notice of complaint indicative of bad faith); see also Sermo, Inc. v. CatalystMD, LLC, D2008-0647 (WIPO July 2, 2008) (stating that use of privacy shield can be “treated as evidence of bad faith . . . when serial registrants use privacy shields to mask each registrant’s actual date of registration”).
Therefore, as the Panel agrees that Respondent has utilized a privacy shield in a manner which materially adversely affects or obscures the facts of this proceeding, it agrees that Respondent has registered and used the disputed domain name in bad faith under Policy ¶ 4(a)(iii).
Complainant argues that Respondent had actual and/or constructive knowledge of Complainant's rights in the INVESCO mark. Complainant argues that the fame and notoriety of the INVESCO mark indicates that Respondent had knowledge of Complainant's mark and rights at the time the domain was registered. Although panels have not generally regarded constructive notice to be sufficient for a finding of bad faith, the Panel finds that, given the totality of the circumstances, Respondent had actual knowledge of Complainant's mark and rights and finds that Respondent registered the disputed domain name in bad faith under Policy ¶ 4(a)(iii). See Nat'l Patent Servs. Inc. v. Bean, FA 1071869 (Forum Nov. 1, 2007) ("[C]onstructive notice does not support a finding of bad faith registration."); see also Minicards Vennootschap Onder FIrma Amsterdam v. Moscow Studios, FA 1031703 (Forum Sept. 5, 2007) (holding that respondent registered a domain name in bad faith under Policy ¶ 4(a)(iii) after concluding that respondent "actual knowledge of Complainant's mark when registering the disputed domain name").
Therefore, the Panel finds that the Respondent has engaged in bad faith use and registration of the disputed domain name.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be granted.
Accordingly, it is Ordered that the <globalinvesco.org> domain name be transferred from the Respondent to the Complainant.
Kenneth L. Port, Panelist
Dated: July 24, 2016
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