Bridgewater Associates, LP v. Lyubov V Muhina
Claim Number: FA1911001871721
Complainant is Bridgewater Associates, LP (“Complainant”), represented by Eric J. Shimanoff of Cowan, Liebowitz & Latman, P.C., New York, USA. Respondent is Lyubov V Muhina (“Respondent”), Russia.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <investbridgewater.online>, 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.
Hon. Karl v. Fink (Ret.) as Panelist.
Complainant submitted a Complaint to the Forum electronically on November 18, 2019; the Forum received payment on November 18, 2019.
On November 19, 2019, PDR Ltd. d/b/a PublicDomainRegistry.com confirmed by e-mail to the Forum that the <investbridgewater.online> 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 ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On November 19, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 9, 2019 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@investbridgewater.online. Also on November 19, 2019, 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 December 10, 2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Hon. Karl V. Fink (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 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, Bridgewater Associates, is an investment management firm in the business of financial services. Complainant has rights in the BRIDGEWATER mark based upon registration with the United States Patent and Trademark Office (“USPTO”) (e.g. Reg. No. 2,395,503, registered Oct. 17, 2000). Respondent’s <investbridgewater.online> domain name is identical or confusingly similar to Complainant’s mark because it wholly incorporates the mark, simply adding the generic or descriptive term “invest” and a top level domain (“TLD”).
Respondent does not have rights or legitimate interests in the <investbridgewater.online> domain name because Respondent is not commonly known by the disputed domain name and is not authorized or permitted to use Complainant’s mark in any fashion. Additionally, Respondent fails to use the disputed domain names in connection to a bona fide offering of goods or services or a legitimate noncommercial or fair use. Rather, Respondent uses the domain name to impersonate Complainant in furtherance of a phishing scheme.
Respondent registered and uses the <investbridgewater.online> domain name in bad faith because Respondent uses the domain name to impersonate Complainant. Further, Respondent uses the disputed domain name to engage in a phishing scheme.
B. Respondent
Respondent failed to submit a Response in this proceeding.
For the reasons set forth below, based upon Complainant’s uncontested allegations and evidence, the Panel finds that Complainant is entitled to the requested relief of transfer of the <investbridgewater.online> domain name.
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 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 claims rights in the BRIDGEWATER mark based upon registration with the USPTO. Registration of a mark with the USPTO is generally sufficient to establish rights in a mark. See Haas Automation, Inc. v. Jim Fraser, FA 1627211 (Forum Aug. 4, 2015) (finding that Complainant’s USPTO registrations for the HAAS mark sufficiently demonstrate its rights in the mark under Policy ¶ 4(a)(i)). Complainant provides evidence of registration with the USPTO (e.g. Reg. No. 2,395,503, registered Oct. 17, 2000). The Panel finds that Complainant has rights in the mark under Policy ¶ 4(a)(i).
Complainant argues that Respondent’s <investbridgewater.online> domain name is identical or confusingly similar to Complainant’s BRIDGEWATER mark because it wholly incorporates the mark, simply adding a generic or descriptive term and a TLD. Addition of a generic term and a TLD is inconsequential in determining confusing similarity between a disputed domain name and a mark. See Microsoft Corporation v. Thong Tran Thanh, FA 1653187 (Forum Jan. 21, 2016) (determining that confusing similarity exists where [a disputed domain name] contains Complainant’s entire mark and differs only by the addition of a generic or descriptive phrase and top-level domain, the differences between the domain name and its contained trademark are insufficient to differentiate one from the other for the purposes of the Policy). Complainant argues that the only differences between the disputed domain name and Complainant’s mark are the additions of the generic or descriptive term “invest,” and the “.online” TLD. The Panel finds that Respondent’s disputed domain name is confusingly similar to the Complainant’s BRIDGEWATER mark.
Complainant has proved this element.
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), then the burden shifts to Respondent to show it does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests”). The Panel finds Complainant has made a prima facie case.
Complainant argues that Respondent’s use of the domain name to pass itself off as Complainant in furtherance of a phishing scheme does not constitute a bona fide offering of goods or services or a noncommercial or fair use. Impersonating a complainant’s webpage in order to attract users is not a bona fide offering of goods or services or a noncommercial or fair use under Policy ¶¶4(c)(i) and (iii). See ShipChain, Inc. v. 谢东东 / 谢东东, FA 1785189 (Forum June 21, 2018) (“The resolving webpages between Complainant’s and Respondent’s websites are virtually the same. Respondent’s use of the disputed domain name does not confer rights and legitimate interests under Policy ¶¶4(c)(i) and (iii).”); see also DaVita Inc. v. Cynthia Rochelo, FA 1738034 (Forum July 20, 2017) (”Passing off in furtherance of a phishing scheme is not considered a bona fide offering of goods or services or legitimate noncommercial or fair use.”). Complainant provides screenshots of the disputed domain name’s resolving webpage which appears to copy text and images from Complainant’s own website. Complainant argues that Respondent also attempts to engage in phishing by encouraging users to enter their email and password information. The Panel finds that Respondent has failed to provide 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).
Complainant also argues that Respondent does not have rights or legitimate interests in the <investbridgewater.online> domain name because Respondent is not commonly known by the name and has not been authorized to use the BRIDGEWATER mark in a domain name. Where a response is lacking, WHOIS information can support a finding that the respondent is not commonly known by the disputed domain name. See Amazon Technologies, Inc. v. LY Ta, FA 1789106 (Forum June 21, 2018) (concluding a respondent has no rights or legitimate interests in a disputed domain name where the complainant asserted it did not authorize the respondent to use the mark, and the relevant WHOIS information indicated the respondent is not commonly known by the domain name). The WHOIS information of record lists the registrant as “Lyubov V. Muhina,” and Complainant contends that it did not authorize respondent’s use of the mark nor is Respondent commonly known by the disputed domain name. The Panel finds that Respondent lacks rights or legitimate interests in the disputed domain name under Policy ¶ 4(c)(ii).
Complainant has proved this element.
Complainant contends that Respondent registered and used the <investbridgewater.online> domain name in bad faith as Respondent attempts to pass itself off as Complainant for commercial gain. Mimicking a complainant’s website to pass off as that of complainant and deceive its customers may evince bad faith registration and use. See Bittrex, Inc. v. Wuxi Yilian LLC, FA 1760517 (Forum Dec. 27, 2017) (finding bad faith per Policy ¶ 4(b)(iv) where “Respondent registered and uses the <lbittrex.com> domain name in bad faith by directing Internet users to a website that mimics Complainant’s own website in order to confuse users into believing that Respondent is Complainant, or is otherwise affiliated or associated with Complainant.”). Complainant provided screenshots of Respondent’s resolving webpage which uses text and images that appear to be identical to Complainant’s legitimate webpage. The Panel finds that this is evidence of bad faith per Policy ¶ 4(b)(iv).
Complainant claims that Respondent uses the <investbridgewater.online> domain name to engage in phishing for users’ personal information which is further evidence of bad faith registration and use. Use of a disputed domain name to gather personal information from a complainant’s customers is a showing of bad faith under Policy ¶ 4(a)(iii). See Morgan Stanley v. Bruce Pu, FA 1764120 (Forum Feb. 2, 2018) (“[T]he screenshot of the resolving webpage allows users to input their name and email address, which Complainant claims Respondent uses that to fraudulently phish for information. Thus, the Panel agrees that Respondent phishes for information and finds that Respondent does so in bad faith under Policy ¶ 4(a)(iii).”). Complainant claims that Respondent uses the disputed domain name to gather email and password information from users through the resolving webpage. The Panel finds the domain name was registered and is being used in bad faith.
Complainant has proved this element.
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is ORDERED that the <investbridgewater.online> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Karl V. Fink (Ret.) Panelist
December 10, 2019
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