Bridgewater Associates, LP v. Stephen Thorpe / vrtx agency
Claim Number: FA2012001925936
Complainant is Bridgewater Associates, LP (“Complainant”), represented by Eric J. Shimanoff of Cowan, Liebowitz & Latman, P.C., New York, USA. Respondent is Stephen Thorpe / vrtx agency (“Respondent”), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <allweathercryptofund.com> and <bridgewatercrypto.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.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on December 21, 2020; the Forum received payment on December 21, 2020.
On December 23, 2020, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <allweathercryptofund.com> and <bridgewatercrypto.com> domain names are registered with GoDaddy.com, LLC and that Respondent is the current registrant of the names. 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 28, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 19, 2021 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@allweathercryptofund.com, postmaster@bridgewatercrypto.com. Also on December 28, 2020, 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, the Forum transmitted to the parties a Notification of Respondent Default. However, Respondent did send an email to the Forum, see below.
On January 24, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Richard Hill as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the 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, the 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 names be transferred from Respondent to Complainant.
PRELIMINARY ISSUE: IDENTITY THEFT
Respondent contends that it has been the victim of identity theft, see below. The Forum did not receive any further response from the named Respondent and proceeded with the Panel appointment. The Panel has taken the following rules and precedent into account in making a determination on not redacting Respondent’s identity.
According to Policy ¶ 4(j), “[a]ll decisions under this Policy will be published in full over the Internet, except when an Administrative Panel determines in an exceptional case to redact portions of its decision.” In Wells Fargo & Co. v. John Doe as Holder of Domain Name <wellzfargo.com>, FA 362108 (Forum Dec. 30, 2004) and Wells Fargo & Co. v. John Doe as Holder of Domain Name <wellsfargossl>, FA 453727 (Forum May 19, 2005), the panels omitted the respondents’ personal information from the decisions, pursuant to Policy ¶ 4(j), in an attempt to protect the respondents who claimed to be victims of identity theft from becoming aligned with acts the actual registrants appeared to have sought to impute to the respondents.).
However, according to Forum Supplemental Rule 15(b), “All requests pursuant to Policy paragraph 4(j) and Rule 16(b) to have a portion of the decision redacted, must be made in the Complaint, the Response, or an Additional Submission that is submitted before the Panel’s decision is published.” (emphasis added). Rule 1 defines “respondent” as “the holder of a domain-name registration against which a complaint is initiated;” and Forum Supplemental Rule 1(d) further defines “the holder of a domain-name registration” as “the single person or entity listed in the WHOIS registration information at the time of commencement.” The Panel notes precedent which holds the registrar-confirmed registrant of a disputed domain (per the WHOIS at commencement of the proceeding) the proper respondent, notwithstanding the possibility that said respondent’s identity was stolen. See, e.g., Banco Bradesco S/A v. Gisele Moura Leite, D2014-0414 (WIPO Apr. 30, 2014).
In the instant case, there has been no request in the Complaint to redact any portion of the decision, nor has there been a Response or an Additional Submission. Consequently, the Panel finds that it is not warranted to redact Respondent’s name and location from the Panel’s decision,
A. Complainant
Complainant states that, founded by now-billionaire Ray Dalio in 1975, it is a renowned investment management firm that manages over $160 billion in global investments for a wide variety of clients world-wide. Complainant is today the world’s largest hedge fund. Complainant has rights in the BRIDGEWATER and ALL WEATHER marks through its registration of the marks in the United States in, respectively, 2000 and 2003.
Complainant alleges that the disputed domain names are confusingly similar to its marks as they each fully incorporate one of Complainant’s marks and merely add the generic terms “crypto” or “cryptofund" and the “.com” generic top-level domain (“gTLD”). Complainant cites UDRP precedents to support its position.
According to Complainant, Respondent has no rights or legitimate interests in the disputed domain names as Respondent is not commonly known by the disputed domain names and Respondent has not been licensed, authorized, or otherwise permitted by Complainant to use Complainant’s marks. Furthermore, Respondent’s use is not a bona fide offering of goods or services, nor a legitimate noncommercial or fair use, as Respondent is hosting competing pay-per-click hyperlinks on parked webpages. Complainant cites UDRP precedents to support its position.
Further, says Complainant, Respondent registered and uses the disputed domain names in bad faith. Specifically, Respondent has an established pattern of bad faith registrations. Additionally, Respondent is attempting to disrupt Complainant’s business and attract Internet users for commercial gain by hosting competing pay-per-click hyperlinks on the disputed domain names. Respondent also uses false WHOIS information. Finally, Respondent had actual or constructive knowledge of Complainant’s marks at the time of registration. Complainant cites UDRP precedents to support its position.
B. Respondent
Respondent failed to submit a Response in this proceeding. In its email to the Forum, Respondent states: “We do not own the domains and there is no Stephen Thorpe here.”
Complainant owns the marks ALL WEATHER and BRIDGEWATER and uses them to promote investment services.
Complainant’s rights in its marks date back to, respectively, 2003 and 2000.
The disputed domain names were registered in 2020.
Complainant has not licensed or otherwise authorized Respondent to use its marks.
The resolving websites display click-through advertising links to competing services. The WHOIS information is false.
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 disputed domain names each fully incorporate one of Complainant’s marks and merely add the generic terms “crypto” or “cryptofund and the “.com” gTLD. Adding a generic term and a gTLD to a complainant’s mark may not sufficiently distinguish a disputed domain name from the mark under Policy ¶ 4(a)(i). See MTD Products Inc. v. J Randall Shank, FA 1783050 (Forum June 27, 2018) (“The disputed domain name is confusingly similar to Complainant’s mark as it wholly incorporates the CUB CADET mark before appending the generic terms ‘genuine’ and ‘parts’ as well as the ‘.com’ gTLD.”). Therefore, the Panel finds that the <allweathercryptofund.com> and <bridgewatercrypto.com> domain names are confusingly similar to Complainant’s ALL WEATHER and BRIDGEWATER marks under Policy ¶ 4(a)(i).
Respondent has not been licensed or authorized by the Complainant to use Complainant’s marks. Respondent is not commonly known by the disputed domain names: where a response is lacking, relevant WHOIS information can be used as evidence to show a respondent is or is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii). 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 of record identifies Respondent as “Stephen Thorpe / vrtx agency”. Therefore, the Panel finds that Respondent is not commonly known by the disputed domain names under Policy ¶ 4(c)(ii).
Respondent uses the disputed domain name to host competing pay-per-click hyperlinks on parked webpages. Using a disputed domain name to host pay-per-click hyperlinks that compete with a complainant may not be bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii). See The Toronto-Dominion Bank v. GEORGE WASHERE, FA 1785311 (Forum June 7, 2018) (“Respondent’s confusingly similar <esecuretdbank.com> domain name references a website displaying links to competing third parties as well as links to Complainant and various unrelated third parties. Using the domain name in this manner shows neither a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).”). Therefore, the Panel finds that Respondent fails to use the disputed domain names in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii). And the Panel finds that Respondent does not have rights or legitimate interests in the dispute domain names.
Complainant alleges that Respondent has engaged in a pattern of bad faith registration and use, and cites a UDRP proceeding against Respondent. However, the cited case appears to be still pending: the decision has not yet been published. Therefore, the Panel finds that Complainant has failed to satisfy its burden of proof for this allegation.
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 names.
Indeed, as already noted, Respondent is attempting to disrupt Complainant’s business and attract Internet users for commercial gain by hosting competing pay-per-click hyperlinks on the disputed domain names. Registering a disputed domain name to host competing pay-per-click hyperlinks to disrupt a complainant’s business and attract Internet users for commercial gain may be evidence of bad faith under Policy ¶ 4(b)(iii) and/or (iv). See For Your Ease Only, Inc v. Expired domain caught by auction winner.***Maybe for sale on Dynadot Marketplace*** c/o Dynadot, FA 1791755 (Forum July 16, 2018) (“[T]he evidence shows that Respondent previously used the domain names to resolve to websites which hosted links to Complainant’s competitors; this demonstrates bad faith under Policy ¶¶ 4(b)(iii) and (iv).”); see also Zynex Medical, Inc. v. New Ventures Services, Corp, FA 1788042 (Forum July 2, 2018) (“The resolving webpage [] appears to display [competing] links such as “Electrical Stimulation” and “Physical Therapy Software.” Accordingly, the Panel agrees that Respondent disrupts Complainant’s business and attempted to commercially benefit off Complainant’s mark in bad faith under Policy ¶¶ 4(b)(iii) & (iv).”). Therefore, the Panel finds that Respondent registered and uses the disputed domain names in bad faith under Policy ¶ 4(b)(iii) and/or (iv).
Further, Respondent registered the disputed domain name using false WHOIS contact information, and this can evince bad faith registration and use under Policy ¶ 4(a)(iii). See CNU ONLINE Holdings, LLC v. Domain Admin / Whois Privacy Corp., FA1504001614972 (Forum May 29, 2015) (“As the Panel sees that Respondent has provided false or misleading WHOIS information, the Panel finds bad faith in Respondent’s registration of the disputed domain name per Policy ¶ 4(a)(iii).”); see also ABB Asea Brown Boveri Ltd v. Global Mgr, FA 1702001716963 (Forum Mar. 30, 2017) (“Complainant contends that Respondent provided false contact information while registering the disputed domain. Registering a confusingly similar domain name using false contact information can evince bad faith registration.”); see also j2 Global Canada, Inc. and Landslide Technologies, Inc. v. Vijay S Kumar/Strategic Outsourcing Services Pvt Ltd, FA 1411001647718 (Forum Jan. 4, 2016) (“False or misleading contact information indicates bad faith registration and use.”); see also Chevron Intellectual Property LLC v. Phillip Thomas/Chevron Pacific, FA 1504001615524 (Forum May 29, 2015) (“Complainant’s use of false registration data and its unexplained redirection of the disputed domain name to Complainant’s own website are further indications of such bad faith.”); see also McDonald’s Corp. v. Holy See, FA 0304000155458 (Forum June 27, 2003) (“The Panel finds that Respondent provided false contact information in the registration certificates and that such actions, even though not specifically enumerated in the Policy, may form the basis for a finding of bad faith registration and use.”); see also Mars, Incorporated v. RaveClub Berlin, FA 0106000097361 (Forum July 16, 2001) (providing false registration and contact information for infringing domain names evidenced Respondent’s bad faith). Accordingly, the Panel finds that Respondent registered and is using the disputed domain name in 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 <allweathercryptofund.com> and <bridgewatercrypto.com> domain names be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: January 25, 2021
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