WL Ross & Co. LLC and Absolute Recovery Hedge Fund, L.P. and Absolute Recovery Hedge Fund, Ltd. v. Absolute Recovery Hedge Fund
Claim Number: FA0803001169430
Complainant is WL Ross & Co. LLC and Absolute
Recovery Hedge Fund, L.P. and
Absolute Recovery Hedge Fund, Ltd. (collectively, “Complainant”), represented by Larry
C. Jones, of Alston & Bird, LLP,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <arhedgefund.com>, registered with Direct Information Pvt Ltd d/b/a Publicdomainregistry.com.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On
On April
2, 2008, a Notification of Complaint and Commencement of Administrative
Proceeding (the "Commencement Notification"), setting a deadline of
April 22, 2008
by which Respondent could file a
response to the Complaint, was transmitted to Respondent via e-mail, post and
fax, to all entities and persons listed on Respondent's registration as
technical, administrative and billing contacts, and to postmaster@arhedgefund.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration 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." Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the National Arbitration 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 makes the following assertions:
1. Respondent’s <arhedgefund.com> domain name is confusingly similar to Complainant’s ABSOLUTE RECOVERY HEDGE FUND mark.
2. Respondent does not have any rights or legitimate interests in the <arhedgefund.com> domain name.
3. Respondent registered and used the <arhedgefund.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
The entities filing collectively as Complainant, WL Ross & Co. LLC (“WL Ross”) and Absolute
Recovery Hedge Fund, L.P. and Absolute Recovery Hedge Fund, Ltd., is in the
business of financial services including investment advisory and other
investment-related services. WL Ross is
a federally registered investment advisor that was incorporated in
Complainant has used the
ABSOLUTE RECOVERY HEDGE FUND mark since 2001 in association with its investment
and financial services. Since 2001,
Complainant has often abbreviated its ABSOLUTE RECOVERY HEDGE FUND mark to the
AR HEDGE FUND mark. Collectively, the AR
Hedge Funds managed assets of over $89 million as of 2007.
Respondent’s <arhedgefund.com>
domain name, which it registered on
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."
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(e), 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 and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
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.
Complainant does not possess a trademark registration for
the ABSOLUTE RECOVERY HEDGE FUND mark. However, if Complainant can demonstrate sufficient
common law rights in the mark which do predate the registration of the disputed
domain name, this is sufficient for the purposes of Policy ¶ 4(a)(i). See
Complainant asserts that it began using the ABSOLUTE RECOVERY HEDGE FUND mark in 2001, and since that time has used its mark extensively to promote its business. Complainant is a large hedge fund for accredited investors and manages assets totaling over $89 million as of 2007, which predates Respondent’s registration by seven years. Thus the Panel finds that Complainant has established common law rights in the ABSOLUTE RECOVERY HEDGE FUND mark sufficient to convey rights which predate the registration of the disputed domain name under Policy ¶ 4(a)(i). See Keppel TatLee Bank v. Taylor, D2001-0168 (WIPO Mar. 28, 2001) (“[O]n account of long and substantial use of [KEPPEL BANK] in connection with its banking business, it has acquired rights under the common law.”); see also Tuxedos By Rose v. Nunez, FA 95248 (Nat. Arb. Forum Aug. 17, 2000) (finding common law rights in a mark where its use was continuous and ongoing, and secondary meaning was established).
The Panel finds Respondent’s <arhedgefund.com> domain name contains the abbreviation
of Complainant’s ABSOLUTE RECOVERY HEDGE FUND
mark without spaces and is confusingly similar under Policy ¶ 4(a)(i). The addition of a generic top-level domain
“.com” is irrelevant when evaluting if the disputed domain name is confusingly
similar.
The Panel finds that Policy ¶ 4(a)(i) has been
established.
The burden of proof shifts to Respondent when Complainant makes a prima facie case that Respondent does not have rights or legitimate interests in the <arhedgefund.com> domain name under Policy ¶ 4(a)(ii). Thereafter, a failure to respond by Respondent furthers the presumption that it has no rights or legitimate interests in the disputed domain name. The Panel finds that Complainant has established a prima facie case, but chooses to examine all of the evidence before making a final determination with regards to Policy ¶ 4(c). See Compagnie Generale des Matieres Nucleaires v. Greenpeace Int’l, D2001-0376 (WIPO May 14, 2001) (“Proving that the Respondent has no rights or legitimate interests in respect of the Domain Name requires the Complainant to prove a negative. For the purposes of this sub paragraph, however, it is sufficient for the Complainant to show a prima facie case and the burden of proof is then shifted on to the shoulders of Respondent. In those circumstances, the common approach is for respondents to seek to bring themselves within one of the examples of paragraph 4(c) or put forward some other reason why they can fairly be said to have a relevant right or legitimate interests in respect of the domain name in question.”); see also Am. Express Co. v. Fang Suhendro, FA 129120 (Nat. Arb. Forum Dec. 30, 2002) (“[B]ased on Respondent's failure to respond, it is presumed that Respondent lacks all rights and legitimate interests in the disputed domain name.”); see also G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum Oct. 1, 2002) (“Because Complainant’s Submission constitutes a prima facie case under the Policy, the burden effectively shifts to Respondent. Respondent’s failure to respond means that Respondent has not presented any circumstances that would promote its rights or legitimate interests in the subject domain name under Policy ¶ 4(a)(ii).”).
The
Panel finds that Responent is using the <arhedgefund.com> domain
name to pass itself off as Complainant by using the disputed domain name to
resolve to a website featuring Complainant’s entire ABSOLUTE RECOVERY HEDGE FUND mark, describing Complainant’s
products, and displaying one of Complainant’s previous addresses under
“contacts.” The Panel infers that
Respondent is attempting to contact potential third-party investors using the
disputed domain name to fraudulently pass itself off as Complainant. Accordingly, the Panel finds that Respondent
has not made a bona fide offering of
goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair
use under Policy ¶ 4(c)(iii). See Am. Int’l Group, Inc. v.
Busby, FA 156251 (Nat. Arb. Forum May 30, 2003) (finding that the
respondent attempts to pass itself off as the complainant online, which is
blatant unauthorized use of the complainant’s mark and is evidence that the
respondent has no rights or legitimate interests in the disputed domain name); see also Crow v. LOVEARTH.net, FA 203208 (Nat. Arb. Forum Nov. 28, 2003) (“It is neither
a bona fide offerings [sic] of goods or services, nor an example of a
legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) & (iii) when
the holder of a domain name, confusingly similar to a registered mark, attempts
to profit by passing itself off as Complainant . . . .”).
Respondent’s WHOIS contact information of “ABSOLUTE RECOVERY HEDGE FUND” is insufficient to demonstrate that Respondent is commonly known by the <arhedgefund.com> domain name as there is no other evidence in the record to suggest that Respondent is commonly known by the disputed domain name in connection with a legitimate or fair use. Furthermore, Complainant asserts that Respondent is not affiliated, connected or associated with Complainant nor otherwise authorized to register or use Complainant’s ABSOLUTE RECOVERY HEDGE FUND mark. Therefore, the Panel finds that Respondent is not commonly known by the <arhedgefund.com> domain name pursuant to Policy ¶ 4(c)(ii). See Yoga Works, Inc. v. Arpita, FA 155461 (Nat. Arb. Forum June 17, 2003) (finding that the respondent was not “commonly known by” the <shantiyogaworks.com> domain name despite listing its name as “Shanti Yoga Works” in its WHOIS contact information because there was “no affirmative evidence before the Panel that the respondent was ever ‘commonly known by’ the disputed domain name prior to its registration of the disputed domain name”); see also G.D. Searle & Co. v. Cimock, FA 126829 (Nat. Arb. Forum Nov. 13, 2003) (“Due to the fame of Complainant’s mark there must be strong evidence that Respondent is commonly known by the disputed domain name in order to find that Respondent has rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(c)(ii). However, there is no evidence on record, and Respondent has not come forward with any proof to establish that it is commonly known as CELEBREXRX or <celebrexrx.com>.”); see also RMO, Inc. v. Burbridge, FA 96949 (Nat. Arb. Forum May 16, 2001) (interpreting Policy ¶ 4(c)(ii) "to require a showing that one has been commonly known by the domain name prior to registration of the domain name to prevail").
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Based on the uncontested evidence presented by Complainant,
the Panel finds that Respondent is attempting to profit by passing itself off
as a representative of Complainant to sell investment services to third parties
from the website that resolves from the <arhedgefund.com>
domain name. The Panel also finds that
Respondent’s <arhedgefund.com>
domain name is capable of creating a likelihood of confusion as to
Complainant’s sponsorship and affiliation with the disputed domain name and corresponding
resolving website due to Respondent displaying Complainant’s entire ABSOLUTE RECOVERY HEDGE FUND mark and attempting
to offer fraudulent services similar to the genuine services offered by
Complainant. Therefore, the Panel finds
that Respondent’s domain name is capable of creating a likelihood of confusion
and qualifies as bad faith registration and use under Policy ¶ 4(b)(iv). See
Identigene, Inc. v. Genetest Labs., D2000-1100 (WIPO Nov. 30, 2000)
(finding bad faith where the respondent's use of the domain name at issue to
resolve to a website where similar services are offered to Internet users is
likely to confuse the user into believing that the complainant is the source of
or is sponsoring the services offered at the site); see also Luck's Music Library v. Stellar Artist Mgmt., FA 95650
(Nat. Arb. Forum Oct. 30, 2000) (finding that the respondent engaged in bad
faith use and registration by using domain names that were identical or
confusingly similar to the complainant’s mark to redirect users to a website
that offered services similar to those offered by the complainant).
Finally, the Panel finds
that Respondent is attempting to phish for personal information from
third-party investors while pretending to represent Complainant, which is being
accomplished by Respondent’s registration and use of the disputed domain
name. The Panel infers that Respondent
registered the <arhedgefund.com>
domain name and uses the resolving website in furtherance of its phishing
scheme to defraud investors into giving Respondent their financial
information. Such registration and use
constitutes bad faith. See Juno Online Servs., Inc. v. Nelson,
FA 241972 (Nat. Arb. Forum Mar. 29, 2004) (“The domain name
<billing-juno.com> was registered and used in bad faith by using the name
for fraudulent purposes.”); see also Wells Fargo & Co. v.
The Panel finds that Policy ¶ 4(a)(iii) has been 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 <arhedgefund.com> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: May 7, 2008
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