Trade Nation Financial UK Ltd v. grand CangLimited / CangLimited_grand
Claim Number: FA2303002034905
Complainant is Trade Nation Financial UK Ltd (“Complainant”), represented by David Hansel of Hansel Henson Limited, United Kingdom. Respondent is grand CangLimited / CangLimited_grand (“Respondent”), Hong Kong.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <tradenationus.com>, registered with GoDaddy.com, LLC.
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.
Steven M. Levy, Esq. as Panelist.
Complainant submitted a Complaint to Forum electronically on March 8, 2023; Forum received payment on March 8, 2023.
On March 8, 2023, GoDaddy.com, LLC confirmed by e-mail to Forum that the <tradenationus.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 March 9, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 29, 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@tradenationus.com. Also on March 9, 2023, 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 April 5, 2023, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, Forum appointed Steven M. Levy, Esq. as Panelist.
On April 6, 2023, the Panel issued an Order For Clarification of Annexures and, on the same date, Complainant submitted an amended annex relating to its trademark registration certificates.
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 is a global trading platform offering retail broker investment services. Complainant has rights in the trademark TRADE NATION through registration of the mark with multiple governmental trademark agencies around the world, including with the European Union Intellectual Property Office (“EUIPO”) (e.g. Reg. No. 18,050,037, registered September 17, 2019), the Intellectual Property Office of the United Kingdom, the World Intellectual Property Organization (“WIPO”), IP Australia, and the Companies and Intellectual Property Commission of the Republic of South Africa. Respondent’s <tradenationus.com> domain name is identical or confusingly similar to Complainant’s TRADE NATION mark as it merely adds the generic term “US” and the “.com” generic top-level-domain name ("gTLD").
Respondent lacks rights or legitimate interests in the <tradenationus.com> domain name. Respondent uses the disputed domain name in connection with a direct copy of Complainant’s old website through which it seeks to harvest highly sensitive financial information from Complainant’s clients as part of a phishing scheme.
Respondent registered and uses the <tradenationus.com> domain name in bad faith. Respondent’s website, as described above, disrupts Complainant’s business and confuses Complainant’s clients for commercial gain.
B. Respondent
Respondent failed to submit a Response in this proceeding.
- Complainant has trademark rights in the phrase TRADE NATION and Respondent’s <tradenationus.com> domain name is confusingly similar to such mark;
- Respondent has no rights or legitimate interests in the disputed domain name as it is not commonly known thereby and its use of the domain name for a fraudulent phishing scheme aimed at Complainant’s customers does not constitute a bona fide offering of good or services nor is it a legitimate noncommercial or fair use; and
- Respondent’s use indicates that it had prior knowledge of Complainant’s mark and that it seeks to disrupt Complainant’s business and make commercial gain based on a likelihood of confusion with such mark.
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 asserts rights in the TRADE NATION mark through Complainant’s registration of the mark with multiple governmental trademark agencies around the world, including with the European Union Intellectual Property Office (“EUIPO”) and others. Registration of a mark with a national or multi-national trademark agency is sufficient to demonstrate rights in the mark per Policy ¶ 4(a)(i). See Google LLC v. Bhawana Chandel / Admission Virus, FA 1799694 (Forum Sep. 4, 2018) (“Complainant has rights in the GMAIL mark based upon its registration of the mark with numerous trademark agencies around the world.”). As Complainant has submitted copies of its trademark registration certificates and printouts from the websites of certain other trademark offices, the Panel finds that Complainant has demonstrated rights in the TRADE NATION mark per Policy ¶ 4(a)(i).
Next, Complainant argues that Respondent’s <tradenationus.com> domain name is identical or confusingly similar to Complainant’s TRADE NATION mark as it merely adds the geographic term “US” and the “.com” gTLD. The addition of a geographic or other generic term and a gTLD typically fails to sufficiently distinguish a disputed domain name from an asserted mark per Policy ¶ 4(a)(i). See Bloomberg Finance L.P. v. Nexperian Holding Limited, FA 1782013 (Forum June 4, 2018) (“Where a relevant trademark is recognisable 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 Marquette Golf Club v. Al Perkins, FA 1738263 (Forum July 27, 2017) (“When a respondent’s domain name incorporates a mark in its entirety and merely adds a generic top-level domain (gTLD), “.com”, then the Panel may find that the disputed domain name is identical to Complainant’s mark.”). As the <tradenationus.com> domain name incorporates the entirety of Complainant’s TRADE NATION mark and adds only the geographically significant letters “US” as well as the “.com” gTLD, the Panel finds that it is confusingly similar to Complainant’s mark per Policy ¶ 4(a)(i).
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). Should it succeed in this effort, the burden then shifts to Respondent to show that 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”).
Complainant makes no arguments or assertions under Policy ¶ 4(a)(ii) beyond reciting its language and stating that “[a]ll three provisions of UDRP 4(a) are easily satisfied in this case.” The Panel notes that the evidence presented does not support a finding that Respondent is authorized to use the TRADE NATION mark, or that Respondent is commonly known by the disputed domain name. Panels frequently look at the available WHOIS information when considering whether a Respondent is commonly known by the disputed domain name. See Amazon Technologies, Inc. v. Suzen Khan / Nancy Jain / Andrew Stanzy, FA 1741129 (Forum Aug. 16, 2017) (finding that respondent had no rights or legitimate interests in the disputed domain names when the identifying information provided by WHOIS was unrelated to the domain names or respondent’s use of the same). Furthermore, lack of authorization to use a mark serves as an additional indication that a respondent is not commonly known by the disputed domain name. See Radio Flyer Inc. v. er nong wu, FA 1919893 (Forum Dec. 16, 2020) (“Here, the WHOIS information lists ‘er nong wu’ as the registrant and no information suggests Complainant has authorized Respondent to use the RADIO FLYER mark in any way. Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).”) The WHOIS information for the disputed domain names reflects Respondent’s name as “grand CangLimited / CangLimited_grand” and, as Respondent has not filed a response or made any other submission in this case, there is nothing in the record to suggest that Respondent is known otherwise or that Complainant has authorized Respondent to use the TRADE NATION mark. Therefore, the Panel finds no evidence upon which to conclude that Respondent is commonly known by the disputed domain name under Policy ¶ 4(c)(ii).
Next, the submitted evidence does not indicate that Respondent uses the disputed domain name for a bona fide offering of goods and services or that it makes a legitimate noncommercial or fair use thereof because the disputed domain name and its resolving website attempts to impersonate Complainant and defraud users. Using a disputed domain name in the manner claimed by Complainant is not a bona fide offering of goods and services or a legitimate noncommercial or fair use. See President and Fellows of Harvard College v. Michael S. George / Harvard Business Council, FA 2003542 (Forum Aug. 25, 2022) (“The impersonation of a complainant in conjunction with a phishing scheme may indicate a lack of rights or legitimate interest in a disputed domain name.”) citing Allianz of Am. Corp. v. Bond, FA 690796 (Forum June 12, 2006); Opportunity Financial, LLC v. James Slavin, FA 2008765 (Forum Sep. 23, 2022) (no legitimate noncommercial or fair use under Policy ¶ 4(c)(iii) where “Respondent uses the disputed domain name’s resolving webpage to impersonate Complainant through the prominent use of Complainant’s mark and logo.”). In the present case, Respondent attempts to impersonate and pass itself off as Complainant at the website which resolves from the disputed domain name. Complainant submits into evidence screenshots of a prior version of its own website at www.tradenation.com and of Respondent’s website at the <tradenationus.com> domain name. Respondent’s website is a close copy of Complainant’s site including images and text although using a different telephone number and email address. Respondent’s website also claims that it is the official trading partner of the English Premier League football team Wolverhampton Wanderers (in fact, Complainant is such a partner), and it contains a login page that invites users to input their user name and password, presumably to copy such information and access the user’s actual account at Complainant’s website to engage in theft and fraud. Complainant also notes that this page features a photograph of Manhattan in New York City, despite the fact that Complainant is not licensed to operate in the United States of America. This particular image, combined with use of the letters “US” in the disputed domain name, suggests that Respondent seeks to convey the impression that is the American division of the Complainant. Respondent, by failing to participate in this case, does not seek to clarify or explain its activities. The submitted evidence leads the Panel to conclude that Complainant’s assertion of phishing and fraud are well founded. As Complainant has made a prima facie case which has not been rebutted, the Panel finds, by a preponderance of the evidence, that Respondent is not using the disputed domain names in compliance with Policy ¶¶ 4(c)(i) or (iii).
Complainant argues that Respondent registered the disputed domain names in bad faith based upon its actual knowledge of Complainant’s rights in the TRADE NATION mark. Under Policy ¶ 4(a)(iii), incorporating a mark into a domain name and using it to impersonate a complainant can serve as evidence of bad faith registration based upon a respondent’s actual knowledge of the asserted mark. See Spectrum Brands, Inc. v. Guo Li Bo, FA 1760233 (Forum Jan. 5, 2018) (“[T]he fact Respondent registered a domain name that looked identical to the SPECTRUM BRANDS mark and used that as an email address to pass itself off as Complainant shows that Respondent knew of Complainant and its trademark rights at the time of registration.”) With respect to its trademark rights, Complainant asserts that “[t]here can be no argument that they do not exist and were not known by the registrant.” The Complaint further states that the TRADE NATION mark “enjoys a substantial goodwill and reputation in the UK and across various markets around the World” although Complainant submits no evidence to support this apart from its trademark registration certificates and screenshots of its own website which, while evidencing trademark rights, do not speak to the reputation or scope of the mark. Nevertheless, the Panel agrees with Complainant’s assertion that Respondent had prior knowledge of the asserted TRADE NATION mark based on the direct copying of Complainant’s website in which Respondent has engaged. From the evidence showing the near identity between the content of Respondent’s and Complainant’s respective websites, the Panel finds that Respondent registered the disputed domain name with actual knowledge of Complainant’s rights in the TRADE NATION mark.
Complainant next argues that Respondent registered and uses the disputed domain names in bad faith because Respondent attempts to disrupt Complainant’s business and attract users for commercial gain as part of a fraudulent phishing scheme. Under Policy ¶ 4(b)(iv), impersonating and passing oneself off as a complainant is a clear indication of bad faith. See Totango, Inc. v. 林 凡, FA 2008671 (Forum Sep. 16, 2022) (“The Panel agrees and finds that Respondent engages in a phishing scheme, demonstrating bad faith under Policy ¶¶ 4(b)(iii) and (iv).”); see also Qatalyst Partners LP v. Devimore, FA 1393436 (Forum July 13, 2011) (finding that using the disputed domain name as an e-mail address to pass itself off as the complainant in a phishing scheme is evidence of bad faith registration and use). Here, the Panel references the above-mentioned screenshots of Respondent’s website at the disputed domain name which appears designed to encourage Complainant’s customers to input their login credentials under the mistaken impression that the user is dealing with Complainant. It seems reasonable for Complainant to assert that “[t]here is a very real risk that a client of the Complainant would provide the registrant of the Bad Faith Domain Name with highly sensitive financial information, which would enable them to use the login details to access the client’s account held with the Complainant” Respondent has not participated in these proceedings and so it does not dispute this evidence or Complainant’s characterization thereof. Based on the information and evidence before it, the Panel finds it highly likely that Respondent registered and uses the disputed domain names in bad faith under Policy ¶¶ 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 <tradenationus.com> domain name be TRANSFERRED from Respondent to Complainant.
Steven M. Levy, Esq., Panelist
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