WL Ross & Co. LLC and Absolute Recovery
Hedge Fund, L.P. and Absolute Recovery Hedge Fund, Ltd. v. MC Deaves Hosting
Solution c/o Michael Deaves
Claim Number: FA0905001265301
PARTIES
Complainant is WL Ross & Co.
LLC and Absolute Recovery Hedge
Fund, L.P. and Absolute Recovery
Hedge Fund, Ltd. (collectively, “Complainant”) represented by Benjamin F. Sidbury, of Alston & Bird, LLP, North
Carolina, USA. Respondent is MC Deaves Hosting Solution c/o Michael Deaves (“Respondent”),
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <arhedgefundlp.us>,
registered with Directi Internet
Solutions Pvt. Ltd. d/b/a
Publicdomainregistry.com.
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.
Louis E. Condon as Panelist.
PROCEDURAL HISTORY
Complainant submitted a Complaint to the National Arbitration Forum
(the “Forum”) electronically on May 28, 2009; the Forum received a hard copy of
the Complaint on June 1, 2009.
On June 2, 2009, Directi Internet Solutions Pvt. Ltd. d/b/a Publicdomainregistry.com confirmed by
e-mail to the Forum that the <arhedgefundlp.us>
domain name is registered with Directi Internet Solutions Pvt. Ltd.
d/b/a Publicdomainregistry.com and
that Respondent is the current registrant of the name. Directi Internet Solutions Pvt. Ltd. d/b/a Publicdomainregistry.com has verified
that Respondent is bound by the Directi Internet Solutions Pvt. Ltd. d/b/a Publicdomainregistry.com registration
agreement and has thereby agreed to resolve domain-name disputes brought by
third parties in accordance with the U. S. Department of Commerce’s usTLD
Dispute Resolution Policy (the “Policy”).
On June 10, 2009, a Notification of Complaint and Commencement of
Administrative Proceeding (the “Commencement Notification”), setting a deadline
of June 30, 2009 by which Respondent could file a Response to the Complaint,
was transmitted to Respondent in compliance with Paragraph 2(a) of the Rules
for usTLD Dispute Resolution Policy (the “Rules”).
Having received no Response from Respondent, the Forum transmitted to
the parties a Notification of Respondent Default.
On July 6, 2009, pursuant to Complainant’s request to have the dispute
decided by a single-member Panel, the Forum appointed Louis E. Condon 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. Therefore,
the Panel may issue its decision based on the documents submitted and in
accordance with the Policy, the 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.
RELIEF SOUGHT
Complainant requests that the domain name be transferred from
Respondent to Complainant.
PARTIES’ CONTENTIONS
A. Complainant
1. Respondent’s <arhedgefundlp.us> 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 <arhedgefundlp.us> domain name.
3.
Respondent registered and used the <arhedgefundlp.us>
domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
FINDINGS
The entities filing collectively as Complainant, WL Ross & Co. LLC, Absolute Recovery Hedge Fund, L.P., and Absolute Recovery Hedge Fund, Ltd., are providers of financial services including investment advisory and other investment-related services. Complainant has used the ABSOLUTE RECOVERY HEDGE FUND mark in commerce since 2001 in association with said services. As of December 31, 2007, Complainant managed assets of over $89,000,000 under the ABSOLUTE RECOVERY HEDGE FUND mark and thus, has acquired valuable goodwill in the financial services industry.
Respondent’s <arhedgefundlp.us>
domain name was registered on April 27, 2009.
The disputed domain name resolves to a website featuring purporting to
offer financial services under Complainant’s ABSOLUTE RECOVERY HEDGE FUND mark,
alleging to have “specialized in alternative investments since 1987, offering
hedge fund and managed futures portfolio management and products to high net
worth clients [sic].” Respondent is also
using the disputed domain name to circulate fraudulent e-mails to investors. Respondent contacted an investor in
DISCUSSION
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 the 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 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 the 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 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 or is
being used in bad faith.
Given the similarity between the Uniform Domain Name Dispute Resolution
Policy (“UDRP”) and the usTLD Policy, the Panel will draw upon UDRP precedent
as applicable in rendering its decision.
Identical
and/or Confusingly Similar
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, this is sufficient for the purposes of a Policy ¶ 4(a)(i) analysis. See SeekAmerica Networks Inc. v. Masood, D2000-0131 (WIPO Apr. 13, 2000) (finding that the Rules do not require that the complainant's trademark or service mark be registered by a government authority or agency for such rights to exist); see also British Broad. Corp. v. Renteria, D2000-0050 (WIPO Mar. 23, 2000) (noting that the UDRP “does not distinguish between registered and unregistered trademarks and service marks in the context of abusive registration of domain names” and applying the UDRP to “unregistered trademarks and service marks”).
Complainant
contends that it began using the ABSOLUTE RECOVERY HEDGE FUND mark in commerce
in 2001, and since that time has used its mark extensively to promote its investment
advisory services. As of December 31, 2007,
Complainant had managed assets of over $89,000,000 under the ABSOLUTE RECOVERY
HEDGE FUND mark. Complainant contends
that it has acquired substantial prestige and goodwill in the financial
services industry. Thus, Complainant
contends that its ABSOLUTE RECOVERY HEDGE FUND mark has acquired secondary
meaning sufficient for Complainant to establish common law rights in the
mark. Based on this information, and the
continuous and extensive use of the ABSOLUTE RECOVERY HEDGE FUND mark since
2001, the Panel concludes that Complainant has established common law rights in
the ABSOLUTE RECOVERY HEDGE FUND mark under Policy ¶ 4(a)(i). See
Respondent’s <arhedgefundlp.us> domain name contains the abbreviation of Complainant’s ABSOLUTE RECOVERY HEDGE FUND mark without spaces, the addition of the letters “lp,” and the affixation of the country-code top-level domain (“ccTLD”) “.us.” The letters “lp” likely allude to the fact that Complainant is a limited partnership corporation and thus, the letters are descriptive of Complainant’s business. The Panel finds that these alterations fail to alleviate the confusing similarity between Complainant’s ABSOLUTE RECOVERY HEDGE FUND mark and Respondent’s <arhedgefundlp.us> domain name. Additionally, the Panel concludes that the addition of the ccTLD is irrelevant for the purposes of Policy ¶ 4(a)(i). See Microsoft Corp. v. Montrose Corp., D2000-1568 (WIPO Jan. 25, 2001) (finding the domain name <ms-office-2000.com> to be confusingly similar even though the mark MICROSOFT is abbreviated); see also PG&E Corp. v. Anderson, D2000-1264 (WIPO Nov. 22, 2000) (finding that “Respondent does not by adding the common descriptive or generic terms ‘corp’, ‘corporation’ and ‘2000’ following ‘PGE’, create new or different marks in which it has rights or legitimate interests, nor does it alter the underlying [PG&E] mark held by Complainant”); see also Tropar Mfg. Co. v. TSB, FA 127701 (Nat. Arb. Forum Dec. 4, 2002) (finding that the addition of the country-code “.us” fails to add any distinguishing characteristic to the domain name). Thus, the Panel finds that Respondent’s <arhedgefundlp.us> domain name is confusingly similar to Complainant’s ABSOLUTE RECOVERY HEDGE FUND mark under Policy ¶ 4(a)(i).
Complainant has
satisfied Policy ¶ 4(a)(i).
Rights
or Legitimate Interests
Complainant asserts that Respondent lacks rights and legitimate
interests in the <arhedgefundlp.us> domain name.
Complainant must first establish its prima
facie case to support these contentions, and the Panel finds that
Complainant has done so in these proceedings.
Once Complainant has produced a sufficient prima facie case, the burden shifts to Respondent to show that it
does have rights or legitimate interests in the <arhedgefundlp.us>
domain name under Policy ¶ 4(c). Respondent failed to submit a response in
these proceedings, thus the Panel may infer that Respondent lacks rights and
legitimate interests in the disputed domain name. However, the Panel will review the record to
determine whether Respondent has any rights or legitimate interests in the <arhedgefundlp.us>
domain name under Policy ¶ 4(c). See
Document Techs., Inc. v. Int’l Elec. Commc’ns Inc., D2000-0270 (WIPO
June 6, 2000) (“Although Paragraph 4(a) of the [UDRP] requires that the
Complainant prove the presence of this element (along with the other two), once
a Complainant makes out a prima facie showing, the burden of production
on this factor shifts to the Respondent to rebut the showing by providing
concrete evidence that it has rights to or legitimate interests in the Domain
Name.”); see also Parfums Christian Dior v. QTR Corp.,
D2000-0023 (WIPO Mar. 9, 2000) (finding that by not submitting a response, the
respondent has failed to invoke any circumstance which could demonstrate any
rights or legitimate interests in the domain name).
There is no evidence in the record to conclude that Respondent owns any
service marks or trademarks that reflect the <arhedgefundlp.us>
domain name. Therefore the Panel finds
that Respondent does not have rights and legitimate interests pursuant to
Policy ¶ 4(c)(i).
See Meow Media Inc. v. Basil, FA 113280 (Nat. Arb.
Forum Aug. 20, 2002) (finding that there was no evidence that Respondent was
the owner or beneficiary of a mark that is identical to the
<persiankitty.com> domain name); see also Pepsico, Inc. v Becky,
FA 117014 (Nat. Arb. Forum Sept. 3, 2002) (holding that because Respondent did
not own any trademarks or service marks reflecting the <pepsicola.us>
domain name, it had no rights or legitimate interests pursuant to Policy ¶
4(c)(i)).
Complainant contends that Respondent is using
the <arhedgefundlp.us> domain name to pass itself off as
Complainant in a fraudulent investment scheme.
The disputed domain name’s resolving website features Complainant’s
entire ABSOLUTE RECOVERY HEDGE FUND mark together with a description of services,
which are identical to Complainant’s offerings.
Moreover, Respondent is using the disputed domain name to circulate
fraudulent e-mails purporting to be from Complainant. The Panel presumes that Respondent is
profiting from such use, and infers that Respondent is attempting to
fraudulently pass itself off as Complainant.
Accordingly, the Panel finds that Respondent has not made a bona fide offering of goods or services
or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(ii)
or (iv), respectively. 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 [UDRP] ¶¶ 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…”).
Furthermore, Complainant contends that Respondent is not commonly known by the <arhedgefundlp.us> domain name under Policy ¶ 4(c)(iii). The WHOIS information identifies the registrant as “MC Deaves Hosting Solution c/o Michael Deaves.” There is no other evidence in the record to indicate that Respondent is commonly known by the disputed domain name or authorized to use the mark in any manner. Therefore, the Panel finds that Respondent is not commonly known by the <arhedgefundlp.us> domain name pursuant to Policy ¶ 4(c)(iii). See M. Shanken Commc’ns v. WORLDTRAVELERSONLINE.COM, FA 740335 (Nat. Arb. Forum Aug. 3, 2006) (finding that the respondent was not commonly known by the <cigaraficionada.com> domain name under UDRP ¶ 4(c)(ii) based on the WHOIS information and other evidence in the record); see also St. Lawrence Univ. v. Nextnet Tech, FA 881234 (Nat. Arb. Forum Feb. 21, 2007) (concluding a respondent has no rights or legitimate interests in a disputed domain name where there was no evidence in the record indicating that the respondent was commonly known by the disputed domain name).
Complainant has
satisfied Policy ¶ 4(a)(ii).
Registration
or Use in Bad Faith
Based on the uncontested evidence present by Complainant, the Panel finds that Respondent is attempting to profit by creating a likelihood of confusion as to Complainant’s sponsorship and affiliation with the disputed domain name due to Respondent’s attempt to offer services similar to the genuine services offered by Complainant. Therefore, the Panel finds that Respondent has engaged in bad faith registration and use pursuant to 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).
Respondent’s disputed domain name resolves to a website that promotes investment services under Complainant’s ABSOLUTE RECOVERY HEDGE FUND mark. Complainant contends that Respondent is fraudulently attempting to pass itself off as a representative of Complainant to sell investment services to third parties, undoubtedly for financial gain. Moreover, Respondent is using the disputed domain name to send e-mails, purporting to be from Complainant, to further Respondent’s illegitimate scheme. The Panel concludes that Respondent’s use of the disputed domain name to pass itself off as Complainant constitutes bad faith registration and use under Policy ¶ 4(a)(iii). See Am. Int’l Group, Inc. v. Busby, FA 156251 (Nat. Arb. 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”); see also Monsanto Co. v. Decepticons, FA 101536 (Nat. Arb. Forum Dec. 18, 2001) (finding that the respondent's use of <monsantos.com> to misrepresent itself as the complainant and to provide misleading information to the public supported a finding of bad faith).
Complainant has
satisfied Policy ¶ 4(a)(iii).
DECISION
Complainant having established all three elements required under the usTLD Policy, the Panel concludes that relief should be GRANTED.
Accordingly, it is Ordered that the <arhedgefundlp.us> domain name be TRANSFERRED from Respondent to Complainant.
Louis E. Condon, Panelist
Dated: July 20, 2009
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