Eqonex Limited v. William Douglas
Claim Number: FA2202001984145
Complainant is Eqonex Limited (“Complainant”), represented by Armin Ghiam, New York, USA. Respondent is William Douglas (“Respondent”), Texas, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <eqonexmining.com>, registered with Hosting Concepts B.V. d/b/a Registrar.eu.
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 February 12, 2022; the Forum received payment on February 12, 2022.
On February 15, 2022, Hosting Concepts B.V. d/b/a Registrar.eu confirmed by e-mail to the Forum that the <eqonexmining.com> domain name is registered with Hosting Concepts B.V. d/b/a Registrar.eu and that Respondent is the current registrant of the name. Hosting Concepts B.V. d/b/a Registrar.eu has verified that Respondent is bound by the Hosting Concepts B.V. d/b/a Registrar.eu 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 February 16, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 8, 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@eqonexmining.com. Also on February 16, 2022, 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 March 11, 2022, 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 provides digital asset advising and financial services.
Complainant asserts rights in the EQONEX mark through the mark’s registration with multiple national trademark authorities, including the European Union Intellectual Property Office (“EUIPO”)
Respondent’s <eqonexmining.com> domain name is identical or confusingly similar to Complainant’s EQONEX mark, merely adding the generic term “mining” and the “.com” generic top-level domain (“gTLD”) to form the domain name.
Respondent lacks rights and legitimate interests in the <eqonexmining.com> domain name as it is not commonly known by the at-issue domain name and is neither an authorized user nor a licensee of Complainant’s EQONEX mark. Additionally, Respondent does not use the domain name for any bona fide offer of goods or services, nor for any legitimate noncommercial or fair use. Instead, Respondent previously used the at-issue domain name to pass itself off as Complainant in furtherance of a phishing scheme. Now, the domain name directs users to an inactive website.
Respondent registered and uses the <eqonexmining.com> domain name in bad faith. Respondent initially used the at-issue domain name to divert Internet users to Respondent’s in order to disrupt Complainant’s business and secure financial gain. Respondent further appears to have used the domain name to operate a phishing scheme to defraud Complainant’s customers into giving up personal data. Respondent used a privacy service when registering the <eqonexmining.com> domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has trademark rights in the EQONEX mark.
Respondent registered the at-issue domain name after Complainant acquired rights in EQONEX.
Complainant’s has not authorized Respondent to use Complainant’s trademark.
Respondent used the at-issue domain name to pass itself off as Complainant in furtherance of phishing and currently holds the at-issue domain name passively.
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 or identical to a trademark in which Complainant has rights.
Complainant’s ownership of one or more national trademark registrations for its EQONEX trademark demonstrates Complainant’s rights in a mark under Policy ¶ 4(a)(i). See Google LLC v. Bhawana Chandel / Admission Virus, FA 1799694 (Forum Sept. 4, 2018) (“Complainant has rights in the GMAIL mark based upon its registration of the mark with numerous trademark agencies around the world.”); see also Sanlam Life Insurance Limited v. Syed Hussain / Domain Management MIC, FA 1787219 (Forum June 15, 2018) (“Registration of a mark with the EUIPO, a government agency, sufficiently confers a complainant’s rights in a mark for the purposes of Policy ¶ 4(a)(i).”).
Respondent’s <eqonexmining.com> domain name contains Complainant’s EQONEX trademark followed by the suggestive term “mining,” with all followed by the top-level domain name, “.com.” The differences between Complainant’s trademark and Respondent’s domain name are insufficient to distinguish one from the other for the purposes of the Policy. Therefore, the Panel finds that Respondent’s <eqonexmining.com> domain name is confusingly similar to Complainant’s EQONEX trademark under Policy ¶ 4(a)(i). See Wiluna Holdings, LLC v. Edna Sherman, FA 1652781 (Forum Jan. 22, 2016) (Finding the addition of a generic term and gTLD is insufficient in distinguishing a disputed domain name from a mark under Policy ¶ 4(a)(i).); see also Dell Inc. v. pushpender chauhan, FA 1784548 (Forum June 11, 2018) (“Respondent merely adds the term ‘supports’ and a ‘.org’ gTLD to the DELL mark. Thus, the Panel finds Respondent’s disputed domain name is confusingly similar to Complainant’s DELL mark per 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 legitimate interests in respect of the at-issue domain name. See 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 the at-issue domain name indicates “William Douglas” is the domain name’s registrant and there is no evidence before the Panel that otherwise shows Respondent is commonly known by the <eqonexmining.com> domain name. Therefore, the Panel finds that Respondent is not commonly known by the at-issue domain name pursuant to Policy ¶ 4(c)(ii). See Instron Corp. v. Kaner, FA 768859 (Forum Sept. 21, 2006) (finding that the respondent was not commonly known by the disputed domain names because the WHOIS information listed “Andrew Kaner c/o Electromatic a/k/a Electromatic Equip't” as the registrant and there was no other evidence in the record to suggest that the respondent was commonly known by the domain names in dispute).
Respondent
has used the at-issue domain name to pass itself off as Complainant in
furtherance of a phishing scheme. Respondent’s use of 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). 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.”); see also 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).”).
Respondent’s <eqonexmining.com> is currently inactive. Browsing to
<eqonexmining.com> returns an error message representing that the
destination is not reachable. Respondent’s passive holding of EQONEX 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). See Dell Inc. v.
link growth / Digital Marketing, FA 1785283 (Forum June 7, 2018) (“Respondent’s
domain names currently display template websites lacking any substantive
content. The Panel finds that Respondent has does not have rights or legitimate
interests with respect of the domain name per Policy ¶¶ 4(c)(i) or (iii).”).
Given the forgoing, Complainant demonstrates Respondent’s lack of rights and lack of interests in the <eqonexmining.com> domain name.
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).
Respondent initially used <eqonexmining.com> to pass itself off as Complainant so as to divert internet users to a website offering services competitive with those services offered by Complainant. Doing so was disruptive to Complainant’s business. Respondent’s use of the domain name thus demonstrates Respondent’s bad faith under Policy ¶¶ 4(b)(iii) and (iv). See DatingDirect.com Ltd. v. Aston, FA 593977 (Forum Dec. 28, 2005) (“Respondent is appropriating Complainant’s mark to divert Complainant’s customers to Respondent’s competing business. The Panel finds this diversion is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iii).”); see also 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.”).
Respondent’s use of the domain name also furthered a phishing scheme whereby internet users were deceived into giving up personal data via an online contact form. Respondent’s promotion of a phishing scheme is additional evidence of its bad faith registration and use of the at-issue domain name. See United Services Automobile Association v. john arkoos, FA1702001718272 (Forum Mar. 28, 2017) (finding bad faith under Policy ¶ 4(a)(iii) and transferring the <usaainfocenter.com> domain name based on Respondent using the domain name to engage in a phishing scheme intended to defraud internet users).
Finally, Respondent currently fails to make active use of the domain name as browsing to the domain name returns an error message. Respondent’s passive holding of the domain name also shows Respondent’s bad faith registration and use of such domain name per Policy ¶ 4(a)(iii). See Regions Bank v. Darla atkins, FA 1786409 (Forum June 20, 2018) (“Respondent registered and is using the domain name in bad faith under Policy ¶ 4(a)(iii) because Respondent uses the domain name to host an inactive website.”).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <eqonexmining.com> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: March 14, 2022
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