Pantera Advisors LLC v. Fernando Hansen
Claim Number: FA2112001977744
Complainant is Pantera Advisors LLC (“Complainant”), represented by Scott Kareff of Schulte Roth & Zabel LLP, New York, USA. Respondent is Fernando Hansen (“Respondent”), USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <clients-panteracapital.com>, registered with Registrar of Domain Names REG.RU LLC.
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 the Forum electronically on December 20, 2021. The Forum received payment on December 21, 2021.
On December 21, 2021, Registrar of Domain Names REG.RU LLC confirmed by e-mail to the Forum that the <clients-panteracapital.com> domain name is registered with Registrar of Domain Names REG.RU LLC and that Respondent is the current registrant of the name. Registrar of Domain Names REG.RU LLC has verified that Respondent is bound by the Registrar of Domain Names REG.RU LLC registration agreement, which is in Russian, 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 22, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint in both English and Russian, setting a deadline of January 11, 2022 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@clients-panteracapital.com. Also on December 22, 2021, the English and Russian language 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 January 17, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Alan L. Limbury 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: LANGUAGE OF PROCEEDINGS
As noted, the Registrar of Domain Names REG.RU LLC registration agreement is in Russian. Pursuant to Rule 11(a), the language of the proceeding in relation to the <clients-panteracapital.com> domain name shall be Russian unless otherwise determined by the Panel, having regard to the circumstances of the proceeding.
The Panel notes that the domain name is in English and that Respondent’s address, as given to the Registrar, is in the United States (although Complainant has shown that the street address is false). In the absence of any Response, these circumstances satisfy the Panel that Respondent is likely to be proficient in English and that there would be no undue prejudice to Respondent if English were the language of the proceeding.
Further, pursuant to Rule 11(a), the Panel determines that the language requirement has been satisfied through the English and Russian language Written Notice of the Complaint and, absent a Response, determines that the remainder of the proceedings may be conducted in English.
A. Complainant
Complainant is a prominent SEC-registered investment adviser founded in 2004, focused on ventures, tokens and projects related to blockchain technology, digital currency and crypto assets. Complainant has rights in the PANTERA mark through registrations of the mark including with the United States Patent and Trademark Office (“USPTO”). Respondent’s <clients-panteracapital.com> domain name is virtually identical and confusingly similar to Complainant’s mark.
Respondent has no legitimate interests in the <clients-panteracapital.com> domain name. Respondent is not commonly known by the domain name and Complainant has not authorized or licensed to Respondent any rights in the PANTERA mark. Respondent does not use the domain name for any bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, the domain name is used to further a phishing scheme.
Respondent registered the <clients-panteracapital.com> domain name in bad faith with actual knowledge of Complainant’s rights in the PANTERA mark and uses it in bad faith to pose as Complainant and seek fraudulently to obtain investment funds or sensitive personal information intended to be sent to Complainant.
Specifically, upon information and belief, the domain name is used either to send a phishing email, or to host a website to which recipients of the phishing email are directed, as follows: Respondent (or an individual working in concert with Respondent) sends a phishing email to either a current investor in Respondent's [scil Complainant’s] funds or a potential investor indicating that their account has been frozen for AML/KYC issues. The phishing email contains a link and invites the recipient to click to "View Status" of the fraudulent account issue, directing them to a website that looks similar to Complainant’s website. The website (which upon information and belief the domain name is or was used to host) requests that the recipient click to view a Docusign document. If the investor or potential investor recipient clicks it, the website attempts to install a Google Chrome extension on the user's computer. Complainant does not know what happens when the extension is installed.
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 it has rights in the PANTERA mark through numerous registrations of the mark, including with the USPTO (e.g., Reg. No. 5,733,587 registered April 23, 2019). The Panel finds Respondent’s <clients-panteracapital.com> domain name to be confusingly similar to Complainant’s mark because it incorporates the PANTERA mark in its entirety and adds a hyphen and the generic terms “clients” and “capital”, which do not distinguish the domain name from the mark, and the inconsequential “.com” generic top-level domain (“gTLD”), which may be ignored.
Complainant has established this element.
(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 <clients-panteracapital.com> domain name was registered on November 12, 2021, some years after Complainant has shown that its PANTERA mark had become very well-known. Complainant annexes copies of three emails sent a few days after the registration of the domain name, purporting to emanate from Complainant’s genuine address, in which the recipients are invited to "View Status" of a purported suspension of their account with Complainant. Complainant states that clicking on the "View Status" link brings the recipient to a website to which the domain name resolves, which looks similar to Complainant’s website.
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 <clients-panteracapital.com> domain name. See JUUL Labs, Inc. v. Dryx Emerson / KMF Events LTD, FA1906001849706 (Forum July 17, 2019) (“According to the majority of Panel decisions this Panel also takes the position that while Complainant has the burden of proof on this issue, once the Complainant has made a prima facie showing, the burden of production shifts to the Respondent to show by providing concrete evidence that it has rights to or legitimate interests in the domain name at issue.”).
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.
Complainant has established this element.
Registration and Use in Bad Faith
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 very well-known PANTERA mark when Respondent registered the <clients-panteracapital.com> domain name and that Respondent has fraudulently sought to impersonate Complainant and 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 in order to obtain sensitive personal and financial information. This demonstrates registration and use in bad faith under Policy ¶ 4(b)(iv).
Complainant has also shown that Respondent’s registration data as provided to the Registrar is false in several respects. This is an additional basis for a finding of bad faith.
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 <clients-panteracapital.com> domain name be TRANSFERRED from Respondent to Complainant.
Alan L. Limbury, Panelist
Dated: January 18, 2022
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