E*Trade Financial Holdings, LLC v. Igwe Ikenna
Claim Number: FA2210002017931
Complainant is E*Trade Financial Holdings, LLC (“Complainant”), represented by Eric J. Shimanoff of Cowan, Liebowitz & Latman, P.C., New York, USA. Respondent is Igwe Ikenna (“Respondent”), Nigeria.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <alfrade-trade.ltd>, registered with NameCheap, Inc..
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.
Richard Hill as Panelist.
Complainant submitted a Complaint to Forum electronically on October 27, 2022; Forum received payment on October 27, 2022.
On October 28, 2022, NameCheap, Inc. confirmed by e-mail to Forum that the <alfrade-trade.ltd> domain name is registered with NameCheap, Inc. and that Respondent is the current registrant of the name. NameCheap, Inc. has verified that Respondent is bound by the NameCheap, Inc. 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 October 28, 2022, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 17, 2022 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@alfrade-trade.ltd. Also on October 28, 2022, 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, Forum transmitted to the parties a Notification of Respondent Default.
On November 21, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Richard Hill as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that 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, 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 states that it operates in the financial services industry. Complainant originated as a platform that allowed retail investors to trade stocks online. Today, Complainant provides a suite of digital financial services for investors, traders, financial advisors, stock plan participants, and stock plan administrators. Complainant employs more than 4,100 individuals and has 30 retail branches across the United States. In October 2020, Morgan Stanley announced that it had completed its acquisition of Complainant. With the acquisition, Morgan Stanley’s Wealth Management division oversees approximately $3.3 trillion in assets. Complainant has rights in the E*TRADE mark through its registration of the mark in the United States in 1996.
Complainant alleges that the disputed domain name is identical or confusingly similar to its E*TRADE mark because it consists of a misspelling of the mark (the asterisk “*” is replaced with a hyphen “-”), merely adding in front of the mark the term “alfrad” (which is both a first name and a last name) and the “.ltd” generic top-level domain (“gTLD”).
According to Complainant, Respondent lacks rights or legitimate interests in the disputed domain name. Respondent has not engaged in business under, and is not commonly known by, the disputed domain name. Complainant has not licensed rights to or authorized Respondent to use its mark. Respondent does not make a bona fide offering of goods or services or a legitimate noncommercial or fair use of the disputed domain name, as it is being used to impersonate Complainant and cause customer confusion through offering fake financial services. Respondent is taking advantage of the substantial fame and goodwill associated with the E*TRADE mark. Specifically, the resolving website prominently displays a logo in which the letters “E-TRADE” are highlighted in a different color than the initial letters “ALFRAD”, in an apparent effort to accentuate the term “E-TRADE” and make consumers believe that Respondent’s site is somehow affiliated with Complainant. The site purports to offer financial services, including financial trading services, which are identical or nearly identical to the services offered by Complainant. However, the site appears to be offering fake financial services. The site displays an England and Wales “Certificate of Incorporation of a Private Limited company” for the purported company ALFRADE-TRADE, issued in 2004. However, an online search for “ALFRADE-TRADE” on the United Kingdom’s Companies House register of companies yielded no results.
Further, says Complainant, Respondent registered and is using the disputed domain name in bad faith. Respondent is disrupting Complainant’s business by causing initial interest confusion. Respondent is offering fake financial services. Respondent must have been aware of the E*TRADE mark and registered the confusingly similar domain name for no reason other than intentionally to capitalize off of its fame and goodwill while passing off as Complainant or suggesting some false association with Complainant. Respondent registered the disputed domain name with actual and/or constructive knowledge of Complainant’s rights in the E*TRADE mark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns the mark E*TRADE and uses to offer financial services.
Complainant’s rights in its mark date back to 1996.
The disputed domain name was registered in 2022.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
The resolving website prominently displays a logo in which the letters “E-TRADE” are highlighted and offers fake financial services which are essentially identical to those offered by Complainant.
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”).
According to 1.7 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Jurisprudential Overview 3.0”): “In specific limited instances, while not a replacement as such for the typical side-by-side comparison, where a panel would benefit from affirmation as to confusing similarity with the complainant’s mark, the broader case context such as website content trading off the complainant’s reputation, … may support a finding of confusing similarity.”
Here, Complainant presents evidence showing that the resolving website contains elements likely intended to make consumers believe that Respondent’s site is somehow affiliated with Complainant. This supports the side-by-side comparison below.
The disputed domain name consists of a misspelling of Complainant’s E*TRADE mark (the asterisk “*” is replaced with a hyphen “-“), merely adding in front of the mark the term “alfrad” (which is both a first name and a last name) and the “.ltd” generic top-level domain (“gTLD”). Under Policy ¶ 4(a)(i), such changes may be insufficient to differentiate a disputed domain name from a mark. See Bloomberg Finance L.P. v. Nexperian Holding Limited, FA 1782013 (Forum June 4, 2018) (“Where a relevant trademark is recognizable within a disputed domain name, the addition of other terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) does not prevent a finding of confusing similarity under the first element.”); see also Mrs. World Pageants, Inc. v. Crown Promotions, FA 94321 (Forum Apr. 24, 2000) (finding that punctuation is not significant in determining the similarity of a domain name and mark); see also Home Depot Product Authority, LLC v. Angelo Kioussis, FA 1784554 (Forum June 4, 2018) (“The domain name contains the mark in its entirety, with only the addition of the generic letters ‘sb’ and the digits ‘2018,’ plus the generic Top Level Domain (“gTLD”) ‘.com.’ These alterations of the mark, made in forming the domain name, do not save it from the realm of confusing similarity under the standards of the Policy.”); see also Mrs. World Pageants, Inc. v. Crown Promotions, FA 94321 (Forum Apr. 24, 2000) (finding that punctuation is not significant in determining the similarity of a domain name and mark).
For all the above reasons, the Panel finds that the disputed domain name is confusingly similar to Complainant’s mark under Policy ¶ 4(a)(i).
Complainant has not licensed or otherwise authorized Complainant to use its mark. Respondent is not commonly known by the disputed domain name: under Policy ¶ 4(c)(ii), WHOIS information may be used to determine whether a respondent is commonly known by the disputed domain name. See Chevron Intellectual Property LLC v. Fred Wallace, FA1506001626022 (Forum July 27, 2015) (finding that the respondent was not commonly known by the <chevron-europe.com> domain name under Policy ¶ 4(c)(ii), as the WHOIS information named “Fred Wallace” as registrant of the disputed domain name). Here, the WHOIS information for the disputed domain name lists the registrant as “Igwe Ikenna”. Therefore the Panel finds that Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii).
Complainant presents evidence showing that the disputed domain name is used to cause customer confusion and to offer fake financial services almost identical to those Complainant offers. Previous Panels have found that this is not a bona fide offering of goods or services or legitimate noncommercial or fair use under Policy ¶¶4(c)(i) and (iii). See Acton Educational Services d/b/a West Coast Univ. v. West Coast Univ. Int’l Inc., FA 1191541 (Forum July 2, 2008) (website offering fake educational services was not a legitimate use of domain name); see also West Coast University, Inc. v. West Coast University Inc / West Coast University, FA 1416332 (Forum Dec. 21, 2011) (use of WESTCOASTUNIVERSITYONLINE.US domain name to resolve to website that utilized marks confusingly similar to Complainant’s marks and offered competing educational services was not bona fide use, but rather was improper attempt to pass itself off as Complainant). Therefore the Panel finds that Respondent fails to use the disputed domain names to make a bona fide offering of goods or services, or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) and (iii). And the Panel finds that Respondent does not have rights or legitimate interests in the disputed domain names.
Respondent (who did not reply to Complainant’s contentions) has not presented any plausible explanation for its use of Complainant’s mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain name.
Indeed, as already noted, the resolving website creates customer confusion and offers fake financial services that compete with those of Complainant. This is evidence of bad faith registration and use under the Policy. See Am. Int’l Group, Inc. v. Busby, FA 156251 (Forum May 30, 2003) (finding that disputed domain name was registered and used in bad faith where respondent hosted a website that “duplicated Complainant’s mark and logo, giving every appearance of being associated or affiliated with Complainant’s business . . . to perpetrate a fraud upon individual shareholders who respected the goodwill surrounding the AIG mark”); see also H-D Michigan, Inc. v. Petersons Auto., FA 135608 (Forum Jan. 8, 2003) (finding that disputed domain name was registered and used in bad faith pursuant to Policy ¶ 4(b)(iv) through respondent’s registration and use of the infringing domain name to intentionally attempt to attract Internet users to its fraudulent website by using complainant’s famous marks and likeness); see also Google Inc. v. Domain Admin, FA 1502001605239 (Forum Mar. 22, 2015) (finding that use of a disputed domain name to aid illegal activities under Complainant’s trademark indicates Respondent’s bad faith); see also Xylem Inc. and Xylem IP Holdings LLC v. YinSi BaoHu YiKaiQi, FA1504001612750 (Forum May 13, 2015) (“The Panel agrees that Respondent’s use of the website to display products similar to Complainant’s, imputes intent to attract Internet users for commercial gain, and finds bad faith per Policy ¶ 4(b)(iv).”). Consequently, the Panel finds bad faith registration and use under Policy ¶ 4(b)(iv).
Further, Respondent registered the disputed domain name with actual knowledge of Complainant’s mark: the resolving website prominently displays a logo in which the letters “E-TRADE” are highlighted. While constructive notice is insufficient to demonstrate bad faith, actual knowledge of a complainant’s rights in a mark prior to registration may be evidence of bad faith per Policy ¶ 4(a)(iii). See Custom Modular Direct LLC v. Custom Modular Homes Inc., FA 1140580 (Forum Apr. 8, 2008) (“There is no place for constructive notice under the Policy.”); see also Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum Feb. 6, 2014) (“The Panel notes that although the UDRP does not recognize ‘constructive notice’ as sufficient grounds for finding Policy ¶ 4(a)(iii) bad faith, the Panel here finds actual knowledge through the name used for the domain and the use made of it.”); see also 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). The Panel finds that Respondent had actual knowledge of Complainant’s rights in the mark prior to Respondent’s registration of the disputed domain name and that this too constitutes bad faith under Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <alfrade-trade.ltd> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: November 22, 2022
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