Raymond Dalio v. Ivan Rimar
Claim Number: FA2205001998416
Complainant is Raymond Dalio (“Complainant”), represented by Eric J. Shimanoff of Cowan, Liebowitz & Latman, P.C., New York. Respondent is Ivan Rimar (“Respondent”), RU.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <raydaliodonate.com>, registered with Registrar of Domain Names REG.RU LLC.
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.
Debrett G. Lyons as Panelist.
Complainant submitted a Complaint to the Forum electronically on May 31, 2022; the Forum received payment on May 31, 2022. The Complaint was submitted in both Russian and English.
On June 1, 2022, Registrar of Domain Names REG.RU LLC confirmed by e-mail to the Forum that the <raydaliodonate.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 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 June 1, 2022, the Forum served the Russian language Complaint and all Annexes, including a Russian language Written Notice of the Complaint, setting a deadline of June 21, 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@raydaliodonate.com. Also on June 1, 2022, the 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 June 29, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Debrett G. Lyons 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 asserts trademark rights in the personal name, RAY DALIO, and alleges that the disputed domain name is confusingly similar to its trademark.
Complainant alleges that Respondent has no rights or legitimate interests in the disputed domain name.
Complainant alleges that Respondent registered and used the disputed domain name in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The factual findings pertinent to the decision in this case are that:
1. Complainant is a billionaire hedge fund manager and philanthropist who has authored books and produced videos concerning principles of wealth growth and wealth management;
2. the disputed domain name was registered on May 25, 2022 and resolves to a website which shows an image of Complainant and includes other indicia such as a company name uniquely associated with Complainant suggesting that the website is maintained by Complainant; however,
3. there is no relationship between the parties and Complainant has not authorized Respondent to use his name or to register any domain name incorporating his name.
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."
The Panel notes that the Registration Agreement is written in Russian, thereby making the language of the proceedings Russian. Nevertheless, absent a Response and pursuant to Rule 11(a), the Panel determines that the language requirement has been satisfied and determines that the remainder of the proceedings should continue in English. As noted above, the Complaint was filed in English as well as in Russian.
Moving on, 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.
Paragraph 4(a)(i) of the Policy requires a two-fold enquiry - a threshold investigation into whether a complainant has rights in a trademark, followed by an assessment of whether the disputed domain name is identical or confusingly similar to that trademark.
Complainant asserts both registered and common law trademark rights in the name, RAY DALIO. Albeit that the Complaint provides evidence of China National Intellectual Property Administration Reg. No. 57,726,700 (registered February 7, 2022) for RAY DALIO, the Panel observes that Complainant is not the owner of that registration.
The registered owner, Chronos LLC, is said to be a company wholly owned by Complainant. There is nothing to controvert that claim and given the low probability that an unconnected entity might have registered the personal name of Complainant, the Panel is prepared in the circumstances to accept the assertion of ownership and so find that Complainant has shown trademark rights (see, for example, Farm Mut. Auto. Ins. Co. v. Periasami Malain, FA 705262 (Forum June 19, 2006) (“Complainant’s registrations with the United States Patent and Trademark Office of the trademark, STATE FARM, establishes its rights in the STATE FARM mark pursuant to Policy, paragraph 4(a)(i).”)).
In any event, the Panel finds ample support of Complainant’s claim to common law rights in RAY DALIO as a trademark given Complainant’s reputation, at least in the United States, and the use of his personal name in a trademark sense in commerce (see, for example, Microsoft Corporation v. Story Remix / Inofficial, FA 1734934 (Forum July 10, 2017) finding that “[t]he Policy does not require a complainant to own a registered trademark prior to a respondent’s registration if it can demonstrate established common law rights in the mark.”; Philippe Pierre Dauman v. Dinner Business, WIPO Case No. D2013-1255; WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview”) at paras 1.3 and 1.5).
The Panel also finds that the disputed domain name is confusingly similar to the trademark since it merely adds the descriptive word “donate” to the trademark (see, for example, Bloomberg Finance L.P. v. Nexperian Holding Limited, FA 1782013 (Forum June 4, 2018) (“Where a relevant trademark is recognisable within a disputed domain name, the addition of other terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) does not prevent a finding of confusing similarity under the first element.”); KW KONA INVESTORS, LLC v. Privacy.co.com / Privacy.co.com, Inc Privacy ID# 923815, FA 1784456 (Forum June 11, 2018) (“[T]he omission of spacing and addition of a gTLD are irrelevant in determining whether the disputed domain name is confusingly similar.”).
Accordingly, the Panel finds that Complainant has satisfied the requirements of paragraph 4(a)(i) of the Policy.
Rights or Legitimate Interests
Paragraph 4(c) of the Policy states that any of the following circumstances, in particular but without limitation, if found by the Panel to be proved based on its evaluation of all evidence presented, shall demonstrate rights or legitimate interests to a domain name for purposes of paragraph 4(a)(ii) of the Policy:
(i) before any notice to you of the dispute, your 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; or
(ii) you (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or
(iii) you are 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.
Notwithstanding the absence of a Response, Complainant must nevertheless make out a prima facie case that Respondent has no rights or legitimate interests in the disputed domain name (see, for example, Do The Hustle, LLC v. Tropic Web, WIPO Case No. D2000‑0624). That said, the name of the underlying domain name holder disclosed by the Registrar, “Ivan Rimar”, does not provide any evidence that Respondent is known by the domain name. Respondent appears to have no trademark rights and Complainant states that Respondent is not authorized to use his name.
Further, the use of the domain name as described above is intended to deceive internet users and is clearly neither a bona fide offering of goods or services nor a legitimate noncommercial or fair use (see, for example, Ripple Labs Inc. v. Jessie McKoy / Ripple Reserve Fund, FA 1790949 (Forum July 9, 2018)).
The Panel finds that a prima facie case has been made out. The onus shifts to Respondent to rebut that case by demonstrating those rights or interests. Absent a Response that onus is not met and so the Panel finds that Complainant has satisfied the second limb of the Policy.
Complainant must prove on the balance of probabilities both that the disputed domain name was registered in bad faith and used in bad faith.
Further guidance on that requirement is found in paragraph 4(b) of the Policy, which sets out four circumstances, any one of which is taken to be evidence of the registration and use of a domain name in bad faith if established.
The four specified circumstances are:
‘(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 who 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 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, respondent has intentionally attempted to attract, for commercial gain, internet users to respondent’s website 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 website or location or of a product or service on the site or location.’
The Panel finds that Respondent’s conduct falls under paragraph 4(b)(iv) above. The Panel has already found the domain name to be confusingly similar to the trademark. The Panel finds that the domain name was chosen and registered to take advantage of Complainant’s reputation. The use of the domain name is manifestly for commercial gain. In terms of the Policy, the Panel finds that Respondent registered the domain name primarily for the purpose of attracting, for commercial gain, internet users to its website by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of that website (see, for example, American Cheerleader Media, LLC. v. ilir shoshi / cheer, FA 1592319 (Forum, January 20, 2015) (“The Panel here finds that Respondent has engaged in bad faith registration and use pursuant to Policy ¶ 4(b)(iv) as … Respondent utilizes a logo and stylized font identical to Complainant’s own, as well as Complainant’s copyrighted images and text in an attempt to pass itself off as Complainant.”); Am. Int’l Group, Inc. v. Busby, FA 156251 (Forum May 30, 2003) finding that the disputed domain name was registered and used in bad faith where the respondent hosted a website that “duplicated Complainant’s mark and logo, giving every appearance of being associated or affiliated with Complainant’s business . . . to perpetrate a fraud upon individual shareholders who respected the goodwill surrounding the AIG mark”).
The Panel finds that the third and final element of the Policy is satisfied.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <raydaliodonate.com> domain name be TRANSFERRED to Complainant.
Debrett G. Lyons, Panelist
Dated: July 5, 2022
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