Bridgewater Associates, LP v. Mike Manning
Claim Number: FA2204001993729
Complainant is Bridgewater Associates, LP (“Complainant”), represented by Eric J. Shimanoff of Cowan, Liebowitz & Latman, P.C., New York, USA. Respondent is Mike Manning (“Respondent”), Philippines.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <bridgewatercapitalgam.com>, registered with Wix.com Ltd.
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.
Charles A. Kuechenmeister, Panelist.
Complainant submitted a Complaint to the Forum electronically on April 25, 2022; the Forum received payment on April 25, 2022.
On April 27, 2022, Wix.com Ltd. confirmed by e-mail to the Forum that the <bridgewatercapitalgam.com> domain name (the Domain Name) is registered with Wix.com Ltd. and that Respondent is the current registrant of the name. Wix.com Ltd. has verified that Respondent is bound by the Wix.com Ltd. 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 April 28, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint setting a deadline of May 18, 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@bridgewatercapitalgam.com. Also on April 28, 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 May 25, 2022, pursuant to request to have the dispute decided by a single-member Panel, the Forum appointed Charles A. Kuechenmeister 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 a Response from Respondent.
Complainant requests that the Domain Name be transferred from Respondent to Complainant.
A. Complainant
Complainant is an investment management firm and the largest hedge fund in the world. It has rights in the BRIDGEWATER mark through its registration of the mark with the United States Patent and Trademark Office and other trademark authorities throughout the world, including the United Kingdom Intellectual Property Office. Respondent’s <bridgewatercapitalgam.com> Domain Name is virtually identical or confusingly similar to Complainant’s mark because it incorporates the BRIDGEWATER mark in its entirety, merely adding the terms “capital” and “gam,” an abbreviation for “global asset management,” and the “.com” generic top-level domain (“gTLD”).
Respondent has no legitimate interests in the Domain Name. Respondent is not commonly known by the Domain Name and Complainant has not authorized or licensed it to use the BRIDGEWATER mark. Additionally, Respondent does not use the Domain Name in connection with a bona fide offering of goods or services or for a legitimate noncommercial or fair use. Instead, the Domain Name resolves a website that offers fake services similar or identical to those offered by Complainant.
Respondent registered and uses the Domain Name in bad faith. Respondent had actual knowledge of Complainant and its mark when it registered the Domain Name, registered a Domain Name associated with Complainant’s mark having no connection with Complainant himself, is using the Domain Name to compete with Complainant, and is using it for a fraudulent business.
B. Respondent
Respondent did not submit a Response in this proceeding.
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 a complainant to prove each of the following three elements to obtain an order cancelling or transferring a domain name:
(1) the domain name registered by the respondent is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and
(2) the 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, pursuant to paragraphs 5(f), 14(a) and 15(a) of the Rules the Panel will decide this administrative proceeding on the basis of Complainant's undisputed representations 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. Nevertheless, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. 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”), WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (WIPO Overview 3.0), at ¶ 4.3 (“In cases involving wholly unsupported and conclusory allegations advanced by the complainant, . . . panels may find that—despite a respondent’s default—a complainant has failed to prove its case.”).
The Panel finds as follows with respect to the matters at issue in this proceeding:
Identical and/or Confusingly Similar
The BRIDGEWATER mark was registered to Complainant with the United Kingdom Intellectual Property Office (Reg. No. UK00903179264) on April 21, 2004 (UKIPO certificate included in Complaint Exhibit 4). Complainant’s registration of its mark with the UKIPO establishes its rights in the BRIDGEWATER mark for the purposes of Policy ¶ 4(a)(i). Alibaba Group Holding Limited v. YINGFENG WANG, FA 1568531 (Forum Aug. 21, 2014) (“Complainant has rights in the ALIBABA mark under the Policy through registration with trademark authorities in numerous countries around the world.”).
Respondent’s <bridgewatercapitalgam.com> Domain Name is identical or confusingly similar to Complainant’s BRIDGEWATER mark. It incorporates the BRIDGEWATER mark in its entirety, merely adding the generic terms “capital” and “gam” (a common abbreviation for global asset management) and the “.com” gTLD. These changes do not distinguish the Domain Name from Complainant’s mark for the purposes of Policy ¶ 4(a)(i). 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. 4(a)(i).”). The WIPO Overview 3.0, at ¶ 1.7, states that the test for confusing similarity “typically involves a side-by-side comparison of the domain name and the textual components of the relevant trademark to assess whether the mark is recognizable within the domain name.” Notwithstanding the change described above, Complainant’s mark is clearly recognizable within the Domain Name.
For the reasons set forth above, the Panel finds that the Domain Name is identical or confusingly similar to the BRIDGEWATER mark, in which Complainant has substantial and demonstrated rights.
If a complainant makes a prima facie case that the respondent lacks rights or legitimate interests in the domain name under Policy ¶ 4(a)(ii), the burden of production shifts to respondent to come forward with evidence that it has rights or legitimate interests in it. 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”). If a respondent fails to come forward with such evidence, the complainant’s prima facie evidence will be sufficient to establish that respondent lacks such rights or legitimate interests. If the respondent does come forward with such evidence, the Panel must assess the evidence in its entirety. At all times, the burden of proof remains on the complainant. WIPO Overview 3.0, at ¶ 2.1.
Policy ¶ 4(c) lists the following three nonexclusive circumstances, any one of which if proven can demonstrate a respondent’s rights or legitimate interests in a domain name for the purposes of Policy ¶ 4(a)(ii):
(i) Before any notice to the respondent of the dispute, the respondent’s use 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;
(ii) The respondent (as an individual, business or other organization) has been commonly known by the domain name, even if the respondent has acquired no trademark or service mark rights; or
(iii) The respondent is making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
Complainant asserts that Respondent has no rights or legitimate interests in the Domain Name because (i) it is not commonly known by the Domain Name, (ii) it has no relationship with Complainant and Complainant has not authorized or licensed it to use the BRIDGEWATER mark, (iii) Respondent does not use the Domain Name in connection with a bona fide offering of goods or services or for a legitimate noncommercial or fair use but instead uses it for a website that offers fake services similar or identical to those offered by Complainant. These allegations are addressed as follows:
The WHOIS information furnished to the Forum by the registrar lists the registrant of the Domain Name as “Mike Manning.” This name bears no resemblance to the Domain Name. Evidence could, of course, in a given case demonstrate that the respondent is commonly known by a domain name different from the name in which it registered the domain name, e.g., the case of a domain name incorporating the brand name of a specific product offered by and associated with the respondent. In the absence of any such evidence, however, UDRP panels have consistently held that WHOIS evidence of a registrant name which does not correspond with the domain name is sufficient to prove that the respondent is not commonly known by the domain name. Guardair Corporation v. Pablo Palermo, FA1407001571060 (Forum Aug. 28, 2014) (holding that the respondent was not commonly known by the <guardair.com> domain name according to Policy ¶ 4(c)(ii), as the WHOIS information lists “Pablo Palermo” as registrant of the disputed domain name), Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum Sept. 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark). The Panel is satisfied that Respondent has not been commonly known by the Domain Name for the purposes of Policy ¶ 4(c)(ii).
Complainant states that Respondent has no relationship with Complainant and that it has never licensed or authorized it to use its mark in any way. Complainant has specific competence to make this statement, and it is unchallenged by any evidence before the Panel. In the absence of evidence that a respondent is authorized to use a complainant’s mark in a domain name or that a respondent is commonly known by the disputed domain name, the respondent may be presumed to lack rights or legitimate interests in the domain name. IndyMac Bank F.S.B. v. Eshback, FA 830934 (Forum Dec. 7, 2006) (finding that the respondent failed to establish rights and legitimate interests in the <emitmortgage.com> domain name as the respondent was not authorized to register domain names featuring the complainant’s mark and failed to submit evidence that it is commonly known by the domain name), Indeed, Inc. v. Ankit Bhardwaj / Recruiter, FA 1739470 (Forum Aug. 3, 2017) (”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.”).
Complaint Exhibit 6 is a screenshot of the website resolving from the Domain Name. It appears to be sponsored and operated by an entity named “Bridgewater Capital Global Asset Management” and purports to offer wealth management services. It does not copy or mimic the style and general appearance of Complainant’s website at <bridgewater.com> (screenshot submitted as Complaint Exhibit 2), but by using the BRIDGEWATER mark so prominently in its entity name and purporting to offer exactly the type of services offered by Complainant, the site conveys the impression that Respondent either is or is associated with Complainant. At the end of the website there is a “Sign In" feature that invites the user, “if already a member,” to login by entering an email address and a password. Complainant alleges that the services advertised by Respondent’s website are fraudulent, that Respondent does not in fact offer any services. There is no evidence of this, but Respondent is clearly passing off as and claiming to offer Complainant’s services, and this is neither a bona fide offering of goods or services as contemplated by Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use as contemplated by Policy ¶ 4(c)(iii). Ripple Labs Inc. v. Jessie McKoy / Ripple Reserve Fund, FA 1790949 (Forum July 9, 2018) (finding the respondent did not use the domain name to make a bona fide offering of goods or services per Policy ¶ 4(c)(i) or for a legitimate noncommercial or fair use per Policy ¶ 4(c)(iii) where the website resolving from the disputed domain name featured the complainant’s mark and various photographs related to the complainant’s business), Nokia Corp. v. Eagle, FA 1125685 (Forum Feb. 7, 2008) (finding the respondent’s use of the disputed domain name to pass itself off as the complainant in order to advertise and sell unauthorized products of the complainant was not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use of the disputed domain name pursuant to Policy ¶ 4(c)(iii)).
By soliciting a visitor’s password on the last page of the site Respondent may also be phishing, which is a fraudulent attempt to obtain sensitive information such as usernames, passwords and credit card details by disguising oneself as a trustworthy entity in an electronic communication. Phishing is neither a bona fide offering of goods or services as contemplated by Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use as contemplated by Policy ¶ 4(c)(iii) and is indicative of no rights or legitimate interests in a domain name. Virtu Financial Operating, LLC v. Lester Lomax, FA1409001580464 (Forum Nov. 14, 2014) (finding that the respondent had failed to provide a bona fide offering of goods or services, or a legitimate noncommercial or fair use of the disputed domain name under Policy ¶ 4(c)(i) and Policy ¶ 4(c)(iii) where the respondent was using the disputed domain name to phish for Internet users’ personal information by offering a fake job posting on the resolving website).
The evidence furnished by Complainant establishes the required prima facie case. On that evidence, and in the absence of any evidence from Respondent, the Panel finds that Respondent has no rights or legitimate interests in the Domain Name.
Policy ¶ 4(b) sets forth a nonexclusive list of four circumstances, any one of which if proven would be evidence of bad faith use and registration of a domain name. They are as follows:
(i) circumstances indicating that the respondent has registered or acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant which is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of the respondent’s documented out-of-pocket costs directly related to the domain name; or
(ii) the respondent has registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that the respondent has engaged in a pattern of such conduct; or
(iii) the respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, the respondent has intentionally attempted to attract, for commercial gain, Internet users to the respondent’s web site or other on-line location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation or endorsement of the respondent’s web site or location or of a product of service on the respondent‘s web site or location.
The evidence of Respondent’s conduct discussed above in the rights or legitimate interests analysis also supports a finding of bad faith registration and use, based upon one or more of the foregoing grounds articulated in the Policy and upon additional grounds adopted by UDRP panels over the years. First, by using the Domain Name to pass off as Complainant and purport either to offer services similar to those of Complainant or offer the services of Complainant itself, Respondent is using the Domain Name to attract, for commercial gain, Internet users to its web site by creating a likelihood of confusion as to the source, sponsorship, affiliation or endorsement of its web site by Complainant. The evidence does not establish whether Respondent is actually providing services similar to Complainant’s or fraudulently representing that it does but instead luring the customer into bogus investment arrangements as alleged by Complainant. Under either scenario, however, Respondent’s conduct fits squarely within the circumstances described in Policy ¶ 4(b)(iv) and is manifest evidence of bad faith registration and use. Xylem Inc. and Xylem IP Holdings LLC v. YinSi BaoHu YiKaiQi, FA1504001612750 (Forum May 13, 2015) (“The Panel agrees that Respondent’s use of the website to display products similar to Complainant’s, imputes intent to attract Internet users for commercial gain, and finds bad faith per Policy ¶ 4(b)(iv).”).
As discussed above, Respondent is using the Domain Name to pass off as Complainant. Policy ¶ 4(b) recognizes that mischief can manifest in many different forms and takes an open-ended approach to bad faith, listing some examples without attempting to enumerate all its varieties. Worldcom Exchange, Inc. v. Wei.com, Inc., WIPO Case No. D-2004-0955 (January 5, 2005). The non-exclusive nature of Policy ¶ 4(b) allows for consideration of additional factors in an analysis for bad faith, and passing off as a complainant, in and of itself, is evidence of bad faith. Bittrex, Inc. v. Wuxi Yilian LLC, FA 1760517 (Forum Dec. 27, 2017) (finding bad faith 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.”).
Next, Respondent registered and is using the Domain Name, which fully incorporates the well-known BRIDGEWATER mark. As discussed above, however, Respondent has no connection with that mark or its owner, the Complainant. Again, this does not fit within any of the circumstances set forth in Policy ¶ 4(b) but in light of the non-exclusive nature of that paragraph, using a domain name that is confusingly similar to a trademark with which the respondent has no connection has frequently been held to be evidence of opportunistic bad faith. Singapore Airlines Ltd. v. European Travel Network, D2000-0641 (WIPO Aug. 29, 2000) (where selection of disputed domain name is so obviously connected to complainant’s well-known trademark, use by someone with no connection with complainant suggests opportunistic bad faith), Google LLC v. Noboru Maruyama / Personal, FA 2001001879162 (Forum Mar. 3, 2020) (“the registration and use of domain name that is confusingly similar to a trademark with which the respondent has no connection has frequently been held to be evidence of bad faith.”).
As noted above, it is likely that Respondent is using the website resolving from the Domain Name to phish for sensitive personal and private information from visitors. Such a use can only be described as exhibiting bad faith in the registration and use of the domain name. Juno Online Servs., Inc. v. Iza, FA 245960 (Forum May 3, 2004) (finding that a UDRP respondent’s use of a domain name that “is confusingly similar to Complainant’s mark, redirects Internet users to a website that imitates Complainant’s … website, and is used to fraudulently acquire personal information from Complainant’s clients” was evidence of bad faith registration and use).
Finally, it is evident that Respondent had actual knowledge of Complainant and its mark when it registered the Domain Name in April 2022 (WHOIS report submitted as Complaint Exhibit 5 shows creation date). Complainant’s BRIDGEWATER mark was registered in 2004 (UKIPO registration certificate included in Complaint Exhibit 4) and is well-known if not famous throughout the world (Wall Street Journal and other media articles included in Complaint Exhibit 3). Respondent copied it verbatim into the Domain Name, passes off as Complainant and purports to offer the same services offered by Complainant. There is no question that it knew of Complainant and its mark when it registered the Domain Name. Given the non-exclusive nature of Policy ¶ 4(b), registering a confusingly similar domain name with actual knowledge of a complainant’s rights in its mark is evidence of bad faith registration and use for the purposes of Policy ¶ 4(a)(iii). 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).
For the reasons set forth above, the Panel finds that Respondent registered and is using the Domain Name in bad faith within the meaning of Policy ¶ 4(a)(iii).
Complainant having established all three elements required under the Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <bridgewatercapitalgam.com> Domain Name be TRANSFERRED from Respondent to Complainant
Charles A. Kuechenmeister, Panelist
May 27, 2022
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