Superluminal Labs LTD v. Host Master / 1337 Services LLC
Claim Number: FA2306002050169
Complainant is Superluminal Labs LTD (“Complainant”), represented by Elizabeth Baio of Nixon Peabody LLP, District of Columbia, USA. Respondent is Host Master / 1337 Services LLC (“Respondent”), Saint Kitts and Nevis.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <gyro.claims>, registered with Tucows Domains Inc.
PANEL
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.
Alan L. Limbury, as Panelist.
Complainant submitted a Complaint to Forum electronically on June 22, 2023. Forum received payment on June 22, 2023.
On June 23, 2023, Tucows Domains Inc. confirmed by e-mail to Forum that the <gyro.claims> domain name is registered with Tucows Domains Inc. and that Respondent is the current registrant of the name. Tucows Domains Inc. has verified that Respondent is bound by the Tucows Domains 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 June 26, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 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@gyro.claims. Also on June 26, 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 July 24, 2023, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Alan L. Limbury 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, Superluminal Labs LTD, is a software development company reinventing digital currency and stablecoin architecture and risk control. It operates the website at “www.gyro.finance”. Complainant has common law rights in the GYRO mark and has rights in the GYROSCOPE mark through registration of the mark in the United Kingdom. Complainant currently has pending United States trademark applications for the marks GYRO and GYROSCOPE. Respondent’s <gyro.claims> domain name is confusingly similar to Complainant’s GYRO mark.
Respondent lacks rights and legitimate interests in the <gyro.claims> domain name. Respondent is not commonly known by the domain name, nor has Complainant authorized or licensed Respondent to use its mark in the domain name. Respondent used the domain name to pass itself off as Complainant in a fraudulent phishing scheme in which it claimed to be providing an opportunity for eligible members of Complainant’s community to mint Non-Fungible Tokens (“NFTs”), instead seeking to obtain access to and steal funds, tokens, and digital wallets – none of which constitutes a bona fide offering of services or legitimate noncommercial or fair use of the domain name. Approximately $663,025 of ERC20 tokens and $15,000 of NFTs were taken in just a few hours from the phishing scam hosted at the domain name. Shortly after the scam was discovered by Complainant, the website associated with the domain name was changed and now resolves to a blank webpage.
Respondent registered the <gyro.claims> domain name in bad faith with actual knowledge of Complainant’s marks and uses it in bad faith to pass itself off as Complainant by gaining access to one of Complainant’s member’s social media accounts in order to post about Respondent’s fraudulent phishing/NFT minting scheme, seeking improperly to obtain access to users’ tokens, funds, digital wallets or financial details for Respondent’s own commercial gain.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has established all the elements entitling it to relief.
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 has shown that, through online use via its website “www.gyro.finance”, it has acquired common law rights in the GYRO mark and that it has rights in the GYROSCOPE mark through registration of the mark in the United Kingdom (Reg. No. UK00003803037, registered on September 30, 2022). On February 4, 2022, Complainant filed United States Trademark Application Nos. 97254204 and 97254211 for the marks GYRO and GYROSCOPE respectively. Those applications remain pending.
The Panel finds Respondent’s <gyro.claims> domain name to be identical to Complainant’s GYRO mark. The “.claims” generic top-level domain (“gTLD”)may be ignored under this element.
Complainant has established this element.
Rights or Legitimate Interests
(i) before any notice to Respondent of the dispute, the use by Respondent of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) Respondent (as an individual, business or other organization) has been commonly known by the domain name, even if Respondent has acquired no trademark or service mark rights; or
(iii) Respondent is making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert customers or to tarnish the trademark or service mark at issue.
The <gyro.claims> domain name was registered on April 4, 2023, after Complainant established its rights in the GYRO and GYROSCOPE marks. That day, the domain name resolved to a copy of an older version of one of the pages of Complainant’s “www.gyro.finance” website, where it was claimed that a new Gyroscope Community NFT could be minted by eligible followers of Complainant. The website prompted users to use their digital wallets to sign a “permit” message for their digital assets (tokens). The permit message allowed Respondent to obtain the user’s token balance and funds from the user’s connected digital wallet.
These circumstances, together with Complainant’s assertions, are sufficient to constitute a prima facie showing of absence of rights or legitimate interests in respect of the domain name on the part of Respondent. The evidentiary burden therefore shifts to Respondent to show that it does have rights or legitimate interests in the <gyro.claims> domain name. See JUUL Labs, Inc. v. Dryx Emerson / KMF Events LTD, FA1906001849706 (Forum July 17, 2019). Respondent has made no attempt to do so.
The Panel finds that Respondent has no rights or legitimate interests in respect of the domain name.
Paragraph 4(b) of the Policy sets out four illustrative circumstances, which, though not exclusive, shall be evidence of the registration and use of the domain name in bad faith for purposes of paragraph 4(a)(iii) of the Policy, including:
(iv) by using the domain name, Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website or other on-line location, by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website or location or of a product or service on its website or location.
The circumstances set out above in relation to the second element satisfy the Panel that Respondent was fully aware of Complainant’s GYRO mark when Respondent registered the <gyro.claims> domain name and that Respondent has intentionally attempted to attract, for commercial gain, Internet users to Respondent’s website, by creating a likelihood of confusion with Complainant’s mark as to the source of Respondent’s website and of the goods promoted on that website. This demonstrates registration and use in bad faith to attract users for commercial gain under Policy ¶ 4(b)(iv).
Further, the Panel finds that Respondent registered and is using the domain name in bad faith for the purpose of phishing for commercial gain by passing itself off as Complainant.
Complainant has established this element.
DECISION
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 <gyro.claims> domain name be TRANSFERRED from Respondent to Complainant.
Alan L. Limbury, Panelist
Dated: July 25, 2023
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