Kinross Gold Corporation v. Lisa Pang
Claim Number: FA2110001970134
Complainant is Kinross Gold Corporation (“Complainant”), represented by James R. Davis, II of Perkins Coie LLP, District of Columbia, USA. Respondent is Lisa Pang (“Respondent”), Hong Kong.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <kinross-gold.com>, registered with Amazon Registrar, 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.
Paul M. DeCicco, as Panelist.
Complainant submitted a Complaint to the Forum electronically on October 21, 2021; the Forum received payment on October 21, 2021.
On October 22, 2021, Amazon Registrar, Inc. confirmed by e-mail to the Forum that the <kinross-gold.com> domain name is registered with Amazon Registrar, Inc. and that Respondent is the current registrant of the name. Amazon Registrar, Inc. has verified that Respondent is bound by the Amazon Registrar, 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 October 26, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 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@kinross-gold.com. Also on October 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 November 21, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Paul M. DeCicco 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.
A. Complainant
Complainant contends as follows:
Complainant, Kinross Gold Corporation, operates a gold mining and investment company.
Complainant has rights in the KINROSS mark through its registration with the United States Patent and Trademark Office (“USPTO”).
Respondent’s <kinross-gold.com> domain name is identical or confusingly similar to Complainant’s KINROSS mark, including the entirety of the mark and merely adding a hyphen, the descriptive term “gold”, and the “.com” generic top-level domain (“gTLD”).
Respondent lacks rights and legitimate interests in the <kinross-gold.com> domain name as it is not commonly known by the at-issue domain name and is neither an authorized user nor licensee of the KINROSS mark. Additionally, Respondent does not use the at-issue domain name for any bona fide offer of goods or services, nor for any legitimate noncommercial or fair use, but rather to pass itself off as Complainant to phish for Internet users’ personal and financial information.
Respondent registered and uses the <kinross-gold.com> domain name in bad faith. Respondent uses the at-issue domain name to pass itself off as Complainant to defraud internet users by phishing for personal and financial information and tricking internet users into giving up funds to Respondent to participate in a phony investment scheme. The domain name is so obviously connected to Complainant’s mark such that such fact provides evidence of Respondent’s bad faith. Respondent also registered the at-issue domain name with actual knowledge of Complainant’s rights in the KINROSS mark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has rights in the KINROSS trademark.
Respondent is not affiliated with Complainant and had not been authorized to use Complainant’s trademark in any capacity.
Respondent registered the at‑issue domain name after Complainant acquired rights in the KINROSS trademark.
Respondent’s domain name addresses a website that imitates Complainant’s genuine website and purportedly offers products for sale that are similar to those offered by Complainant when in fact Respondent is intent on defrauding internet users, who falsely believe they are dealing with Complainant, into giving up personal data as well as funds.
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 at-issue domain name is confusingly similar to a trademark in which Complainant has rights.
Complainant shows that it has a USPTO registration for its KINROSS trademark. Such registration is sufficient to demonstrate Complainant’s rights in a mark under Policy ¶ 4(a)(i). See Microsoft Corp. v. Burkes, FA 652743 (Forum Apr. 17, 2006) (“Complainant has established rights in the MICROSOFT mark through registration of the mark with the USPTO.”).
Respondent’s <kinross-gold.com> domain name contains Complainant’s KINROSS trademark followed by a hyphen and the suggestive term “gold,” with all followed by the top-level domain name “.com.” The differences between Respondent’s domain name and Complainant’s trademark are insufficient to distinguish the <kinross-gold.com> domain name from Complainant’s KINROSS trademark for the purposes of Policy ¶ 4(a)(i). Therefore, the Panel concludes that Respondent’s <kinross-gold.com> domain name is confusingly similar to Complainant’s trademark. See Ant Small and Micro Financial Services Group Co., Ltd. v. Ant Fin, FA 1759326 (Forum Jan. 2, 2018) (“Respondent’s <antfinancial-investorrelations.com> Domain Name is confusingly similar to Complainant’s ANT FINANCIAL mark. It incorporates the mark entirely. It adds a hyphen, the descriptive terms “investor relations,” and the “.com” gTLD, but these additions are insufficient to distinguish the Domain name from complainant’s mark for the purposes of Policy ¶ 4(a)(i).”).
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. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006).
Respondent lacks both rights and legitimate interests in respect of the at-issue domain name. Respondent is not authorized to use Complainant’s trademark in any capacity and, as discussed below, there are no Policy ¶ 4(c) circumstances from which the Panel might find that Respondent has rights or interests in respect of the at‑issue domain name. see also, Emerson Electric Co. v. golden humble / golden globals, FA 1787128 (Forum June 11, 2018) (“lack of evidence in the record to indicate a respondent is authorized to use [the] complainant’s mark may support a finding that [the] respondent does not have rights or legitimate interests in the disputed domain name per Policy ¶ 4(c)(ii)”).
The WHOIS information for <kinross-gold.com> identifies the domain name’s registrant as “Lisa Pang” and the record before the Panel contains no evidence showing that Respondent is commonly known by the <kinross-gold.com> domain name. The Panel therefore concludes that Respondent is not commonly known by the <kinross-gold.com> domain name for the purposes of Policy ¶ 4(c)(ii). See Amazon Technologies, Inc. v. LY Ta, FA 1789106 (Forum June 21, 2018) (concluding a respondent has no rights or legitimate interests in a disputed domain name where the complainant asserted it did not authorize the respondent to use the mark, and the relevant WHOIS information indicated the respondent is not commonly known by the domain name); see also, Navistar International Corporation v. N Rahmany, FA1505001620789 (Forum June 8, 2015) (finding that the respondent was not commonly known by the disputed domain name where the complainant had never authorized the respondent to incorporate its NAVISTAR mark in any domain name registration);
Additionally, Respondent uses <kinross-gold.com> to address a website that deceptively gives the appearance that it is Complainant’s official website and there cajoles website visitors to input sensitive personal and financial information into an online form. Respondent’s use the of the domain name to phish for private data in this manner is neither a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor a non-commercial or fair use pursuant to Policy ¶ 4(c)(iii). See Dell Inc. v. Devesh Tyagi, FA 1785301 (Forum June 2, 2018) (“Respondent replicates Complainant’s website and displays Complainant’s products. The Panel finds that this use is not a bona fide offering of goods or services under Policy ¶¶ 4(c)(i) & (iii).”). That Respondent is actually confusing some <kinross-gold.com> website users into believing they are dealing with Complainant such that users might actually turn funds over to Respondent based on their erroneous belief, clearly indicates that Respondent’s use of the at-issue domain name is neither a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor a non-commercial or fair use pursuant to Policy ¶ 4(c)(iii) and further that Respondent lacks rights and legitimate interest in its confusingly similar <kinross-gold.com> domain name.
Given the forgoing, Complainant satisfies its initial burden and shows Respondent’s lack of rights and legitimate interests in the at-issue domain name under Policy ¶ 4(a)(ii).
The at-issue domain name was registered and used in bad faith. As discussed below without limitation, bad faith circumstances are present from which the Panel concludes that Respondent acted in bad faith pursuant to Policy ¶ 4(a)(iii).
As mentioned above regarding rights and legitimate interests, Respondent uses the confusingly similar <kinross-gold.com> domain name to address a website pretending to be Complainant’s official website and further pretending to offer services akin to those services offered by Complainant. Respondent thus attempts to pass itself off as Complainant and create the illusion that Respondent is somehow related to Complainant when it is not. Respondent uses this illusion to phish for private data and trick internet users ‑who because of Respondent’s deception believe they are dealing with Complainant‑ into turning funds over to Respondent. In a nutshell, Respondent’s is an identify thief whose aim is to steal from innocent third-parties by fraud and deceit. Respondent’s use of the <kinross-gold.com> domain name in such manner demonstrates Respondent’s bad faith registration and use of the <kinross-gold.com> domain name per Policy ¶ 4(b)(iv) and otherwise. See Bittrex, Inc. v. Wuxi Yilian LLC, FA 1760517 (Forum Dec. 27, 2017) (finding bad faith per Policy ¶ 4(b)(iv) where “Respondent registered and uses the <lbittrex.com> domain name in bad faith by directing Internet users to a website that mimics Complainant’s own website in order to confuse users into believing that Respondent is Complainant, or is otherwise affiliated or associated with Complainant.”); see also Qatalyst Partners LP v. Devimore, FA 1393436 (Forum July 13, 2011) (finding that using the disputed domain name as an e-mail address to pass itself off as the complainant in a phishing scheme is evidence of bad faith registration and use).
Moreover, Respondent had actual knowledge of Complainant’s rights in the KINROSS mark when it registered <kinross-gold.com> as a domain name. Respondent’s prior knowledge is evident from the notoriety of Complainant’s trademark; from Respondent’s misappropriation of Complainant’s trademark for use in the design and content of a website that falsely appears to be sponsored by Complainant; from Respondent’s incorporation of the suggestive term “gold” into its confusingly similar domain name; and from Respondent’s use of its <kinross-gold.com> domain name and website in furtherance of fraud. Respondent’s registration and use of the at-issue domain name with knowledge of Complainant’s rights in such domain name further shows Respondent’s bad faith pursuant to Policy ¶ 4(a)(iii). See Minicards Vennootschap Onder FIrma Amsterdam v. Moscow Studios, FA 1031703 (Forum Sept. 5, 2007) (holding that respondent registered a domain name in bad faith under Policy ¶ 4(a)(iii) after concluding that respondent had actual knowledge of Complainant's mark when registering the disputed domain name); 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).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <kinross-gold.com> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: November 22, 2021
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