Securities Investor Protection Corporation v. Dantata Ighodo / BrunelHCook
Claim Number: FA2103001935855
Complainant is Securities Investor Protection Corporation (“Complainant”), represented by Christopher H. LaRosa, District of Columbia, United States. Respondent is Dantata Ighodo / BrunelHCook (“Respondent”), United Kingdom.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <sipcorp.org>, 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.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on March 9, 2021; the Forum received payment on March 9, 2021.
On March 9, 2021, NameCheap, Inc. confirmed by e-mail to the Forum that the <sipcorp.org> 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 10, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 30, 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@sipcorp.org. Also on March 10, 2021, 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. Respondent did however send an email to the Forum, see below.
On April 3, 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 name be transferred from Respondent to Complainant.
PRELIMINARY ISSUE: IDENTITY THEFT
Respondent contends that it has been the victim of identity theft, see below. As the Forum did not receive any further response from the named Respondent, it 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 it is a non-profit membership corporation that administers a quasi-public fund established to provide relief to customers of failed securities broker-dealers placed in liquidation. Complainant has rights in the SIPC mark through its registration of the mark in the United States in 1997. Complainant has maintained a website continuously at <www.sipc.org> since 1998. That web site is widely known and used.
Complainant alleges that the disputed domain name is confusingly similar to its SIPC mark as it incorporates the mark in its entirety and merely adds the letters “orp”. As Complainant is a corporation, the addition of these letters falsely, but strongly, suggests a connection between Complainant SIPC and the disputed domain name. That false suggestion appears to be intentional, as Respondent’s domain name has been used in at emails purporting to be from one of Complainants officers.
According to Complainant, Respondent lacks rights or legitimate interests in the disputed domain name. Respondent has not used the disputed domain name in connection with a bona fide offering of goods or services as Respondent uses the disputed domain name to send fraudulent emails impersonating one of Complainant’s employees.
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith. Respondent uses the disputed domain name to send fraudulent emails.
B. Respondent
Respondent failed to submit a Response in this proceeding. In its email to the Forum, Respondent states, in pertinent part: “We are a UK based Company who has nothing to do with your dispute. I do note that you have my email address, … . There is no Dantala Ihodo within my organisation or at the registered address where the correspondence has been posted.” The email is signed by an individual identified as Managing Director of the company whose name appears in Respondent’s email address.
Complainant owns the marks SIPC and uses it to provide relief services to customers of failed securities broker-dealers placed in liquidation. Complainant’s legitimate website is <www.sipc.org>.
Complainant’s rights in its marks date back to at least 1997.
The disputed domain name was registered in 2021.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
The disputed domain name has been used to send fraudulent e-mails impersonating an employee of Complainant. The signature block of the fraudulent emails displays Complainant’s business name, correct physical address, and the URL of Complainant’s legitimate website.
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 name incorporates Complainant’s “SIPC” mark in its entirety, and merely adds the letters “orp”; since Complainant is a corporation, this confusingly suggests association with Complainant, in particular given that Complainant’s legitimate website is <www.sipc.org>. The suggestive similarity was intentional, given that the disputed domain name was used to impersonate one of Complainant’s employees.
According to 1.7 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Jurisprudential Overview 3.0”):
… in cases where a domain name incorporates the entirety of a trademark, or where at least a dominant feature of the relevant mark is recognizable in the domain name, the domain name will normally be considered confusingly similar to that mark for purposes of UDRP standing.
…
… panels have also found that the overall facts and circumstances of a case (including relevant website content) may support a finding of confusing similarity, particularly where it appears that the respondent registered the domain name precisely because it believed that the domain name was confusingly similar to a mark held by the complainant.
Here, Complainant’s mark is recognizable in the disputed domain name and Respondent registered the domain name precisely because it is confusingly similar. This is sufficient to find confusing similarity under the Policy. See V&S Vin & Sprit AB v. Ooar Supplies, D2004-0962 (WIPO, Dec. 27, 2004) (“The important point is that the Disputed Domain Name incorporates the Complainant’s trademark, and thereby creates a risk that Internet users, who visit the website linked to the Disputed Domain Name may think that there is some sort of affiliation with the Complainant or that the Complainant has given an authorization to use its trademark …”.). Therefore, the Panel finds that the disputed domain name is confusingly similar to Complainant’s mark per Policy ¶ 4(a)(i).
Respondent is not authorized to use Complainant’s mark. Respondent is not commonly known by the disputed domain name: relevant WHOIS information may be used to determine whether a respondent is 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 for the disputed domain names lists Respondent as “Dantata Ighodo / BrunelHCook”. Therefore, the Panel finds that Respondent is not commonly known by the disputed domain names per Policy ¶ 4(c)(ii).
Respondent uses the disputed domain name to send fraudulent emails that impersonate one of Complainant’s employees. Using a disputed domain name to pass off as a complainant may not be a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii). See Emerson Electric Co. v. Adilcon Rocha, FA 1735949 (Forum July 11, 2017) (finding that respondent’s attempt to pass off as complainant through emails does not constitute a bona fide offering of goods or services and, as such, respondent lacked rights or legitimate interests in the disputed domain name); see also Goodwin Procter LLP v. GAYLE FANDETTI, FA 1738231 (Forum Aug. 8, 2017) (“[T]he Domain Name has been used in an attempted fraud. As such it cannot have been registered for a legitimate purpose.”). Therefore, the Panel finds that Respondent fails to use the disputed domain name to make a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii). And the Panel finds that Respondent does not have rights or legitimate interests in the disputed domain name.
Respondent 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 name.
Indeed, as already noted, Respondent uses the disputed domain name to send fraudulent emails impersonating one of Complainant’s employees. This can demonstrate bad faith per Policy ¶¶ 4(b)(iii) and (iv). See Abbvie, Inc. v. James Bulow, FA 1701075 (Forum Nov. 30, 2016) (“Respondent uses the <abbuie.com> domain name to impersonate Complainant’s CEO. Such use is undeniably disruptive to Complainant’s business and demonstrates bad faith pursuant to Policy ¶ 4(b)(iii), and/or Policy ¶ 4(b)(iv)”). Therefore, the Panel finds that Respondent registered and uses the disputed domain name in bad faith per Policy ¶¶ 4(b)(iii) and/or (iv).
Further, the Panel notes that the WHOIS information is, according to Respondent, incorrect. This can indicate bad faith registration and use. See Enterprise Holdings, Inc. v. John Doe, FA1008001339545 (Forum Oct. 1, 2010) (“The Panel also takes into account that the entity that Responded to the Complaint would not be the registrant of the disputed domain names for the instant proceedings. Therefore, that circumstance is also taken by the Panel as indication of bad faith under Policy ¶ 4(a)(iii) by providing false or misleading WHOIS information to the registrar.”); see also Video Direct Distribs. Inc. v. Video Direct, Inc., FA 94724 (Forum June 5, 2000) (finding that the respondent acted in bad faith by providing incorrect information to the registrar regarding the owner of the registered name). Accordingly, the Panel finds that Respondent registered and is using the disputed domain name in bad faith under Policy ¶ 4(a)(iii).
Finally, Respondent had actual knowledge of Complainant's rights in the SPIC mark because the signature block of the fraudulent emails displays Complainant’s business name, mailing address, and legitimate website. While constructive notice is insufficient to demonstrate bad faith, actual knowledge of a complainant’s rights in a mark prior to registration may be evidence of bad faith per Policy ¶ 4(a)(iii). See Custom Modular Direct LLC v. Custom Modular Homes Inc., FA 1140580 (Forum Apr. 8, 2008) (“There is no place for constructive notice under the Policy.”); see also Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum Feb. 6, 2014) (“The Panel notes that although the UDRP does not recognize ‘constructive notice’ as sufficient grounds for finding Policy ¶ 4(a)(iii) bad faith, the Panel here finds actual knowledge through the name used for the domain and the use made of it.”); see also Univision Comm'cns Inc. v. Norte, FA 1000079 (Forum Aug. 16, 2007) (rejecting the respondent's contention that it did not register the disputed domain name in bad faith since the panel found that the respondent had knowledge of the complainant's rights in the UNIVISION mark when registering the disputed domain name). The Panel finds that Respondent had actual knowledge of Complainant’s rights in the mark prior to Respondent’s registration of the disputed domain name and that this constitutes 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 <sipcorp.org> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: April 5, 2021
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