Royce & Associates, LP v. potter Garry
Claim Number: FA2303002035439
Complainant is Royce & Associates, LP ("Complainant"), represented by Corsearch, Inc., Texas, USA. Respondent is potter Garry ("Respondent"), USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <roycefnuds.com>, registered with NameCheap, Inc.
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.
David E. Sorkin as Panelist.
Complainant submitted a Complaint to Forum electronically on March 10, 2023; Forum received payment on March 10, 2023.
On March 12, 2023, NameCheap, Inc. confirmed by email to Forum that the <roycefnuds.com> 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 March 20, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 10, 2023 by which Respondent could file a Response to the Complaint, via email to all entities and persons listed on Respondent's registration as technical, administrative, and billing contacts, and to postmaster@roycefnuds.com. Also on March 20, 2023, the Written Notice of the Complaint, notifying Respondent of the email 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 18, 2023, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed David E. Sorkin 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 is a brokerage firm and the investment advisor for The Royce Funds, a group of investment companies. Complainant and its affiliated companies use ROYCE, THE ROYCE FUNDS, and related marks in connection with their services, and own longstanding trademark registrations for these marks in the United States and other jurisdictions. Complainant also owns the domain name <roycefunds.com>, which it used for its website prior to a rebranding in 2020; that domain name currently redirects to Complainant's website at <royceinvest.com>.
The disputed domain name <roycefnuds.com> was registered in January 2023. The name is registered in the name of a privacy registration service on behalf of Respondent. The domain name resolves to a web page containing only an "Account Suspended" statement. Complainant states that the MX (mail exchanger) records for the domain name are configured to permit the domain name to be used to send email and receive messages, suggesting that Respondent may intend to use the domain name in connection with a fraudulent phishing scheme. Complainant states that Respondent is not commonly known by the domain name, is not affiliated with Complainant, and is not authorized to use Complainant's marks.
Complainant contends on the above grounds that the disputed domain name <roycefnuds.com> is confusingly similar to its ROYCE, THE ROYCE FUNDS, and related marks; that Respondent lacks rights or legitimate interests in the disputed domain name; and that the disputed domain name was registered and is being used in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that the disputed domain name is confusingly similar to a mark in which Complainant has rights; that Respondent lacks rights or legitimate interests in respect of the disputed domain name; and that the disputed domain name was registered and is being used 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 set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, § 4.3 (3d ed. 2017), available at http://www.wipo.int/amc/en/domains/search/overview3.0/; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (dismissing complaint where complainant failed to "produce clear evidence to support its subjective allegations").
The disputed domain name <roycefnuds.com> combines Complainant's registered ROYCE mark with a misspelling of the generic term "funds" and is nearly identical to the distinctive portion of Complainant's registered THE ROYCE FUNDS mark (omitting the article and transposing two letters), in both instances appending the ".com" top-level domain. The alterations do not substantially diminish the similarity between the domain name and Complainant's marks. See, e.g., Bentley Systems, Inc. v. Anton Rodyanskiy, FA 2022830 (Forum Jan. 6, 2023) (finding <benltey.com> confusingly similar to BENTLEY); Oracle International Corp. & NetSuite, Inc. v. Gna Jobs, FA 1986029 (Forum Mar. 31, 2022) (finding <oraclenetsiute.com> confusingly similar to ORACLE and NETSUITE); Las Vegas Sands Corp. v. Zhaozhou Wang, FA 1688993 (Forum Sept. 24, 2016) (finding <venetiamnacao.com> confusingly similar to THE VENETIAN). The Panel considers the disputed domain name to be confusingly similar to a mark in which Complainant has rights.
Under the Policy, the Complainant must first make a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain name, and then the burden shifts to the Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Productions, Inc. v. Entertainment Commentaries, FA 741828 (Forum Aug. 18, 2006).
The disputed domain name incorporates Complainant's registered marks without authorization. Respondent does not appear to have made any active use of the domain name, nor to have engaged in preparations for such use, suggesting that Respondent lacks rights or legitimate interests in the domain name. See, e.g., Morgan Stanley v. Darshan Nenuji / Yuvii Consultancy, FA 2000719 (Forum July 20, 2022) (finding lack of rights or interests in similar circumstances); Oracle International Corp. & NetSuite, Inc. v. Gna Jobs, supra (same).
Complainant has made a prima facie case that Respondent lacks rights and legitimate interests in the domain name, and Respondent has failed to come forward with any evidence of such rights or interests. Accordingly, the Panel finds that Complainant has sustained its burden of proving that Respondent lacks rights or legitimate interests in respect of the disputed domain name.
Finally, Complainant must show that the disputed domain name was registered and is being used in bad faith. Under paragraph 4(b)(iii) of the Policy, bad faith may be shown by evidence that Respondent registered the disputed domain name "primarily for the purpose of disrupting the business of a competitor." Under paragraph 4(b)(iv), bad faith may be shown by evidence that "by using the domain name, [Respondent] intentionally attempted to attract, for commercial gain, Internet users to [Respondent's] web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of [Respondent's] web site or location or of a product or service on [Respondent's] web site or location."
Respondent registered a domain name incorporating Complainant's registered ROYCE mark and corresponding to a misspelling of Complainant's THE ROYCE FUNDS mark and <roycefunds.com> domain name, in what the Panel considers to be a clear instance of typosquatting. Respondent does not appear to have made any active use of the domain name, and has not come forward with any explanation for the selection of the domain name or its intended use. The Panel infers from these circumstances that Respondent registered and is using the disputed domain name with the intent to create confusion with Complainant's mark, likely by means of a phishing scheme or similar fraudulent activity. Such circumstances are indicative of bad faith registration and use under the Policy. See, e.g., Morgan Stanley v. Darshan Nenuji / Yuvii Consultancy, supra (finding bad faith registration and use in similar circumstances); Oracle International Corp. & NetSuite, Inc. v. Gna Jobs, supra (same). The Panel finds that the disputed domain was registered and is being used in bad faith.
Having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <roycefnuds.com> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: April 19, 2023
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