Third Point LLC v. boon jeng loo
Claim Number: FA2212002024986
Complainant is Third Point LLC (“Complainant”), represented by Stacy J. Grossman of Law Office of Stacy J. Grossman, USA. Respondent is boon jeng loo (“Respondent”), Singapore.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <thirdpointusdt.com>, (‘the Domain Name’) registered with GoDaddy.com, LLC.
The undersigned certifies that she has acted independently and impartially and to the best of her knowledge has no known conflict in serving as Panelist in this proceeding.
Dawn Osborne as Panelist.
Complainant submitted a Complaint to Forum electronically on December 21, 2022; Forum received payment on December 21, 2022.
On December 22, 2022, GoDaddy.com, LLC confirmed by e-mail to Forum that the <thirdpointusdt.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 December 27, 2022, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 17, 2023 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@thirdpointusdt.com. Also on December 27, 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 January 20, 2023 pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Dawn Osborne 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
The Domain Name registered in 2022 is confusingly similar to Complainant’s THIRD POINT mark (registered, inter alia, in the USA for financial services with first use recorded as 1998) merely adding ‘usdt’ which does not prevent confusing similarity between the Domain Name and the Complainant’s mark. USDT is a cryptocurrency stablecoin backed by a company called Tether.
The addition of the gTLD “.com” is irrelevant to the confusing similarity analysis.
Respondent has no rights or legitimate interest in the Domain Name. Respondent is not commonly known by the Domain Name The Complainant has not licensed the Respondent to use the Complainant’s mark. The use is commercial so this cannot be legitimate noncommercial or fair use of the Domain Name
The Domain Name registered in 2022 has been pointed to a web site using the Complainant’s mark in its masthead to suggest the site is an official site of the Complainant which is not a bona fide offering of services. The “About Us” section of Respondent’s site includes the history of Complainant and its founder, Daniel S. Loeb, and the “Contact Us” section includes Complainant’s actual address.
Respondent deliberately altered Complainant’s THIRD POINT logo by adding “USDT” into it in a PowerPoint presentation linked to from the Offending Site.
The use is commercial so this cannot be legitimate noncommercial or fair use of the Domain Name.
The “Who We Are” section of the Offending Website includes biographies of alleged employees of Respondent, however, these appear to be fictitious names.
An Internet search of the employee names from the Offending Website led to an unrelated website (< 7generationstewards.com>) that has the same employees, but with different photos. Strangely, the individual identified as Max Johnson on the Offending Website is identified as Jesse Neimus on < 7generationstewards.com>.
The Domain Name has been registered and used in bad faith in actual knowledge of the Complainant’s rights, disrupting the Complainant’s business and deceiving Internet users for commercial gain.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Complainant is the owner of the mark THIRD POINT mark (registered, inter alia, in the USA for financial services with first use recorded as 1998).
The Domain Name registered in 2022 has been used for a site purporting to be an official site of the 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”).
The Domain Name consists of the Complainant's THIRD POINT mark (which is registered, inter alia, in the USA for financial services with first use recorded as 1998), the term ‘usdt’ a name for a type of cryptocurrency and a gTLD “.com.”
Previous panels have found confusing similarity when a respondent merely adds an additional term to a Complainant's mark. See PG&E Corp. v Anderson, D2000-1264 (WIPO Nov. 22, 2000)(finding that respondent does not by adding common terms create new or different marks nor does it alter the underlying mark held by the Complainant). The addition of the term ‘usdt’ does not prevent confusing similarity between the Domain Name and the Complainant’s mark which is still recognizable therein.
A gTLD does not serve to distinguish a domain name from a Complainant’s mark. See Red Hat Inc v Haecke FA 726010 (Nat Arb Forum July 24, 2006) (concluding that the redhat.org domain name is identical to the complainant's red hat mark because the mere addition of the gTLD was insufficient to differentiate the disputed domain name from the mark). The panel holds that the addition of the gTLD “.com” does not prevent confusing similarity between the Complainant’s mark and the Domain Name.
Accordingly, the Panel holds that the Domain Name is confusingly similar to the Complainant’s registered mark.
As such the Panel holds that Paragraph 4(a)(i) of the Policy has been satisfied.
Rights or Legitimate Interests
The Respondent does not appear to be commonly known by the Domain Name. The Complainant has not authorized the Respondent to use the Complainant’s mark. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum September 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark).The use of the Domain Name is commercial and so cannot be legitimate noncommercial fair use.
The web site attached to the Domain Name has been using the Complainant's mark in its masthead, the Complainant’s address, linking to documents using the Complainant’s logo and falsely claiming an association with the Complainant to purport to be an official site of the Complainant. The Panel finds this use is confusing and deceptive. As such it cannot amount to the bona fide offering of goods and services. (See Am. Intl Group Inc v Benjamin FA 944242 (Nat. Arb. Forum May 11, 2007) finding that the Respondent's use of a confusingly similar domain name to compete with the Complainant's business did not constitute a bona fide use of goods and services.) See iFinex Inc. v Yuri Heifetz/Genie-Solution, FA 1789385 (Forum July 9, 2018)(holding that the respondent’s mimicking the complainant’s web site in order to cause existing or potential customers of the Complainant’s to believe they are dealing with the complainant is prima facie evidence of the respondent’s lack of rights and legitimate interests in the disputed domain name).
The Respondent has not answered this Complaint or rebutted the prima facie case evidenced by the Complainant and set out herein.
As such the Panelist finds that the Respondent does not have rights or a legitimate interest in the Domain Name and that the Complainant has satisfied the second limb of the Policy.
Registration and Use in Bad Faith
In the opinion of the Panel the use made of the Domain Name in relation to the Respondent’s site is deceptive and disruptive in that visitors to the site might reasonably believe it is connected to or approved by the Complainant as it has been using the Complainant’s in its masthead, false claims to be associated with the Complainant, the Complainant’s address and linking to documents using the Complainant’s logo giving the impression that the site attached to the Domain Name is official. The use of the Complainant’s logo proves that the Respondent is aware of the Complainant and the Complainant’s rights, business and services.
Accordingly, the Panel holds that the Respondent has intentionally attempted to attract for commercial gain Internet users to his website by creating a likelihood of confusion with the Complainant's trade mark as to the source, sponsorship, affiliation or endorsement of the web site likely to disrupt the business of the Complainant. (See Asbury Auto Group Inc v Tex. Int'l Prop Assocs FA 958542 (Nat. Arb Forum May 29, 2007) finding that the respondent's use of the disputed domain name to compete with the complainant's business would likely lead to confusion amongst Internet users as to the sponsorship or affiliation of a competing business and was therefore evidence of bad faith and use).
As such, the Panelist believes that the Complainant has made out its case that the Domain Name was registered and used in bad faith and has satisfied the third limb of the Policy under para 4(b)(iii) and (iv).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <thirdpointusdt.com> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: January 20, 2023
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