TF Global Markets (Aust) Limited v. Adam Bakker / Saul Peterson / Imagedry group
Claim Number: FA2108001960625
Complainant is TF Global Markets (Aust) Limited (“Complainant”), represented by Daniel Greenberg of Lexsynergy Limited, United Kingdom. Respondent is Adam Bakker / Saul Peterson / Imagedry group (“Respondent”), Netherlands.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <thinkmarket247.net> and <thinkmarket24-7.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.
The Honourable Neil Anthony Brown QC as Panelist.
Complainant submitted a Complaint to the Forum electronically on August 23, 2021; the Forum received payment on August 23, 2021.
On August 23, 2021, NameCheap, Inc. confirmed by e-mail to the Forum that the <thinkmarket247.net> and <thinkmarket24-7.com> domain names are registered with NameCheap, Inc. and that Respondent is the current registrant of the names. 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 August 26, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 15, 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@thinkmarket247.net, postmaster@thinkmarket24-7.com. Also on August 26, 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.
On September 21, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed The Honourable Neil Anthony Brown QC 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: MULTIPLE RESPONDENTS
In the instant proceedings, Complainant has alleged that the entities which control the domain names at issue are effectively controlled by the same person and/or entity, which is operating under several aliases. Paragraph 3(c) of the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”) provides that a “complaint may relate to more than one domain name, provided that the domain names are registered by the same domain name holder.”
Complainant contends that: (1) both domain names point to the same website content; (2) both domain names were registered through the same registrar using common name servers; and (3) the telephone dialing code “+44” for the United Kingdom are common to both Domain Names. The Panel accepts that submission and the evidence in support of it.
The Panel find that the domain names are commonly owned/controlled by a single Respondent who is using multiple aliases. The proceeding may therefore go forward on that basis.
A. Complainant
Complainant made the following contentions.
Complainant has rights in the THINKMARKETS mark through Complainant’s registration of the mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 5,459,296, registered May 1, 2018). See Compl. Annex 1. Respondent’s <thinkmarket247.net> and <thinkmarket24-7.com> domain names are confusingly similar to Complainant’s THINKMARKETS mark because they contain the singular version of the mark with the added numbers “247” and “24-7”.
Respondent lacks rights or legitimate interests in the <thinkmarket247.net> and <thinkmarket24-7.com> domain names. Respondent is not commonly known by the disputed domain name nor has Complainant authorized Respondent to use the THINKMARKETS mark. Respondent has not used the disputed domain name in connection with a bona fide offering of goods or services as Respondent uses them to pass off as Complainant in furtherance of a phishing scheme.
Respondent registered and uses the <thinkmarket247.net> and <thinkmarket24-7.com> domain names in bad faith as Respondent uses them to pass off as Complainant and disrupt Complainant’s business. Respondent also uses the disputed domain names in a phishing scheme.
B. Respondent
Respondent failed to submit a Response in this proceeding.
1. Complainant is an Australian company that offers online trading platforms, trading tools and educational and newsworthy information to online traders via its website.
2. Complainant has established its trademark rights to the THINKMARKETS mark through Complainant’s registration of the mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 5,459,296, registered May 1, 2018).
3. Respondent registered the <thinkmarket247.net> and <thinkmarket24-7.com> domain names on January 15, 2021 and May 27, 2021 respectively.
4. Respondent has caused the disputed domain names to be used to pass itself off as Complainant in furtherance of a phishing scheme.
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 first question that arises is whether Complainant has rights in a trademark or service mark on which it may rely. Respondent submits that it has rights in the THINKMARKETS mark through its registration of the mark with the USPTO (e.g. Reg. No. 5,459,296, registered May 1, 2018). See Compl. Annex 1. Registration of a mark with the USPTO is sufficient to demonstrate rights in the mark per Policy ¶ 4(a)(i). See Recreational Equipment, Inc. v. Liu Chan Yuan, FA 2107001954773 (Forum Aug. 9, 2021) (“Registration of a mark with the USPTO is sufficient to demonstrate rights in the mark per Policy ¶ 4(a)(i)”). Therefore, the Panel finds Complainant has demonstrated rights in the THINKMARKETS mark per Policy ¶ 4(a)(i).
The next question that arises is whether the disputed domain names are identical or confusingly similar to Complainant’s THINKMARKETS mark. Complainant argues Respondent’s <thinkmarket247.net> and <thinkmarket24-7.com> domain names are confusingly similar to Complainant’s THINKMARKETS mark because they contain the singular version of the mark with the added numbers “247” and “24-7”. Removing an “S” from a mark while adding numbers fails to distinguish a disputed domain name sufficiently from a mark per Policy ¶ 4(a)(i). See Lockheed Martin Corporation v. toyosei maruyama, FA 1620489 (Forum July 7, 2015) (“Simply removing the letter ‘s’ from a mark in the creation of a domain name still creates a confusingly similar domain name.”); see also Am. Online, Inc. v. garybush co uk, FA 360612 (Forum Dec. 22, 2004) (“Respondent’s domain name is confusingly similar to Complainant’s AOL mark because the disputed domain name incorporates the mark with the mere addition of the nondistinctive number ‘0.’ The addition of the number ‘0’ is insufficient to distinguish the domain name from Complainant’s mark.”). Therefore, the Panel finds the disputed domain names are confusingly similar to Complainant’s mark per Policy ¶ 4(a)(i).
Complainant has thus made out the first of the three elements that it must establish.
It is now well established that Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain names under Policy ¶ 4(a)(ii), then the burden shifts to Respondent to show 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”).
(a) Respondent has chosen to take Complainant’s THINKMARKETS trademark and to use it in its domain names, using the singular version of the mark with the added numbers “247” and “24-7” which do not negate the confusing similarity between the domain names and the trademark;
(b) Respondent registered the <thinkmarket247.net> and <thinkmarket24-7.com> domain names on January 15, 2021 and May 27, 2021 respectively;
(c) Respondent has caused the disputed domain names to be used to pass itself off as Complainant in furtherance of a phishing scheme;
(d) Respondent has engaged in these activities without the consent or approval of Complainant;
(e) Complainant contends Respondent lacks rights or legitimate interests in the <thinkmarket247.net> and <thinkmarket24-7.com> domain names as Respondent is not commonly known by the disputed domain names nor has Complainant authorized Respondent to use the THINKMARKETS mark. When a response is lacking, relevant WHOIS information may be used to determine whether a respondent is commonly known by the disputed domain names under Policy ¶ 4(c)(ii). See PragmaticPlay Limited v. Robert Chris, FA2102001932464 (Forum Mar. 23, 2021) (“The WHOIS information of record lists the registrant as “Robert Chris,” and no other information of record suggests Respondent is commonly known by the domain name. Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).”). Additionally, lack of authorization to use a complainant’s mark may indicate that the respondent is not commonly known by the disputed domain names. See Radio Flyer Inc. v. er nong wu, FA 2011001919893 (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 lists the registrants as “Saul Peterson / adam Bakker,” and Complainant argues there is no other evidence to suggest that Respondent was authorized to use the THINKMARKETS mark. See Registrar Verification Email. Therefore, the Panel finds Respondent is not commonly known by the disputed domain names per Policy ¶ 4(c)(ii);
(f) Complainant argues that Respondent fails to use the <thinkmarket247.net> and <thinkmarket24-7.com> domain names in connection with a bona fide offering of goods or services or legitimate noncommercial or fair use as Respondent uses them to pass itself off as Complainant in a phishing scheme. Passing off as a complainant in a phishing scheme 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 DaVita Inc. v. Cynthia Rochelo, FA 1738034 (Forum July 20, 2017) (”Passing off in furtherance of a phishing scheme is not considered a bona fide offering of goods or services or legitimate noncommercial or fair use.”). Here, Complainant provides screenshots of Respondent’s website, highlighting that the words “THINK” and “MARKET” were highly visible. See Compl. Annex 13. Complainant also argues Complainant received reports from investors that the investors had deposited money via the websites at the disputed domain names on the mistaken belief that they were engaging with the Complainant and that they had been unable to withdraw the deposited finds. Therefore, the Panel finds Respondent fails to make a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii).
All of these matters go to make out the prima facie case against Respondent. As Respondent has not filed a Response or attempted by any other means to rebut the prima facie case against it, the Panel finds that Respondent has no rights or legitimate interests in the disputed domain names.
Complainant has thus made out the second of the three elements that it must establish.
It is clear that to establish bad faith for the purposes of the Policy, Complainant must show that the disputed domain names were registered in bad faith and have been used in bad faith. It is also clear that the criteria set out in Policy ¶ 4(b) for establishing bad faith are not exclusive, but that Complainants in UDRP proceedings may also rely on conduct that is bad faith within the generally accepted meaning of that expression.
Having regard to those principles, the Panel finds that the disputed domain names were registered and used in bad faith. That is so for the following reasons.
First, Complainant contends Respondent registered and uses the <thinkmarket247.net> and <thinkmarket24-7.com> domain names in bad faith because Respondent uses them to pass itself off as Complainant in a phishing scheme and to disrupt Complainant’s business. Using a disputed domain name to disrupt business by passing off as a complainant in a phishing scheme can demonstrate bad faith per Policy ¶¶ 4(b)(iii) and (b)(iv). See PopSockets LLC v. san mao, FA 1740903 (Forum Aug. 27, 2017) (finding disruption of a complainant’s business which was not directly commercial competitive behavior was nonetheless sufficient to establish bad faith registration and use per Policy ¶ 4(b)(iii)); see also Amazon Technologies, Inc. v. jaskima smith, FA 1750160 (Forum Oct. 26, 2017) (finding the respondent registered and used the disputed domain name in bad faith to pass off as the complainant in an attempt to gain personal information from users who mistakenly access the website). Here, the Panel recalls Complainant provides screenshots showing Respondent’s website has caused Complainant’s customers to deposit money mistakenly through Respondent’s website. See Compl. Annex 13. Therefore, the Panel finds Respondent registered and uses the disputed domain names in bad faith per Policy ¶ 4(b)(iv).
Secondly, Complainant contends Respondent registered and uses the <thinkmarket247.net> and <thinkmarket24-7.com> domain names in bad faith because Respondent engaged in phishing. Using a disputed domain name in connection with phishing can evidence bad faith registration and use per Policy ¶ 4(a)(iii). See Morgan Stanley v. Bruce Pu, FA 1764120 (Forum Feb. 2, 2018) (“[T]he screenshot of the resolving webpage allows users to input their name and email address, which Complainant claims Respondent uses that to fraudulently phish for information. Thus, the Panel agrees that Respondent phishes for information and finds that Respondent does so in bad faith under Policy ¶ 4(a)(iii).”). Here, the Panel recalls Complainant provides screenshots showing Respondent’s website has caused Complainant’s customers to deposit money mistakenly through Respondent’s website. See Compl. Annex 13. Therefore, the Panel finds Respondent registered and uses the disputed domain names in bad faith per Policy ¶ 4(a)(iii).
Complainant has thus made out the third of the three elements that it must establish.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <thinkmarket247.net> and <thinkmarket24-7.com> domain names be TRANSFERRED from Respondent to Complainant.
The Honourable Neil Anthony Brown QC
Panelist
Dated: September 22, 2021
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