RGM Trading, LLC v. rgmtradingllc.com
Claim Number: FA0912001299083
Complainant is RGM
Trading LLC (“Complainant”), represented by Joshua D. Rievman, of Hoguet Newman, Regal & Kenny, LLP,
The domain name at issue is <rgmtradingllc.com>, registered with Tucows Inc.
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.
Bruce E. Meyerson as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On December 29, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of January 19, 2010 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 firstname.lastname@example.org by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
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 <rgmtradingllc.com> domain name is confusingly similar to Complainant’s RGM mark.
2. Respondent does not have any rights or legitimate interests in the <rgmtradingllc.com> domain name.
3. Respondent registered and used the <rgmtradingllc.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, RGM Trading, LLC, operates in the financial
services industry. Complainant began
Respondent, rgmtradingllc.com, registered the <rgmtradingllc.com>
domain name 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 has registered the RGM mark with the USPTO (Reg.
No. 3,257,863 issued
Complainant claims Respondent’s <rgmtradingllc.com>
domain name is confusingly similar to Complainant’s RGM mark. The disputed domain name combines
Complainant’s RGM mark with two descriptive terms “trading” and “llc,” which
combined with Complainant’s mark make up Complainant’s name “RGM Trading, LLC”
and describe Complainant’s trading business.
The Panel finds the addition of these two descriptive terms fails to
adequately distinguish the disputed domain name from Complainant’s mark. See Kohler Co. v. Curley, FA 890812 (Nat. Arb. Forum Mar. 5,
2007) (finding confusing similarity where <kohlerbaths.com> contained the complainant’s mark in its
entirety adding “the descriptive term ‘baths,’ which is an obvious allusion to
complainant’s business.”); see also
Miller Brewing Co. v. Domain Active Pty. Ltd., FA 243606 (Nat. Arb. Forum
Apr. 23, 2004) (finding that the <millerbeers.com> domain name was
confusingly similar to the complainant’s MILLER mark, because “[t]he addition
of a descriptive term that describes Complainant’s business to Complainant’s
registered mark, does not remove the domain from the realm of confusing
similarity with regard to Policy ¶
4(a)(i).”). Respondent also adds the
generic top-level domain (“gTLD”) “.com” to Complainant’s mark. The Panel finds the addition of a gTLD is
irrelevant to a Policy ¶ 4(a)(i) analysis. See Gardline Surveys Ltd. v. Domain Fin. Ltd., FA 153545 (Nat. Arb.
The Panel finds Policy ¶ 4(a)(i) has been satisfied.
Complainant has asserted that Respondent does not have any rights or legitimate interests in the <rgmtradingllc.com> domain name. The burden shifts to the respondent to prove it does have rights or legitimate interests when a complainant makes a prima facie case in support of its allegations under Policy ¶ 4(a)(ii). The Panel finds Complainant has made a sufficient prima facie case. Respondent’s failure to respond to the Complaint allows the Panel to infer that Respondent does not have rights or legitimate interests in the disputed domain name. However, the Panel will examine the record to determine whether Respondent has rights or legitimate interests in the disputed domain name under Policy ¶ 4(c). See Swedish Match UK Ltd. v. Admin, Domain, FA 873137 (Nat. Arb. Forum Feb. 13, 2007) (finding that once a prima facie case has been established by the complainant, the burden then shifts to the respondent to demonstrate its rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(c)); see also Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO Dec. 21, 2000) (finding that failing to respond allows a presumption that the complainant’s allegations are true unless clearly contradicted by the evidence).
The WHOIS information lists the domain name registrant as
“rgmtradingllc.com.” However, Respondent
has offered no evidence suggesting that Respondent is commonly known by the <rgmtradingllc.com>
domain name. Moreover, Complainant
asserts that Respondent is not authorized to use the <rgmtradingllc.com>
domain name. Therefore, the Panel finds
that Respondent is not commonly known by the <rgmtradingllc.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
Respondent uses the <rgmtradingllc.com> domain
name to attempt to pass itself off as Complainant. The website resolving from the disputed
domain name features Complainant’s RGM mark, company name, and reserved
urls. Respondent, pretending to be
Complainant, contacts individual investors with offers to purchase shares in a
company, but first requires the investor pay an advance fee to Respondent. Respondent refers these investors to the
disputed domain name as proof that Respondent is Complainant. The Panel finds Respondent’s attempt to pass
itself off as Complainant is not a bona
fide offering of goods or services under Policy ¶ 4(c)(i)
or a legitimate noncommercial or fair use of the disputed domain name under
Policy ¶ 4(c)(iii).
Therefore, the Panel concludes Panel ¶ 4(a)(ii) has been satisfied.
Respondent uses the <rgmtradingllc.com> domain
name to attempt to pass itself off as Complainant. Respondent offers Internet users investment
opportunities similar to Complainant’s investment options, but charges an
additional fee. Internet users may pay
this fee and attempt to purchase the investment option from Respondent instead
of Complainant because of Respondent’s use of the confusingly similar disputed
domain name. Therefore, the Panel finds
Respondent’s use of the disputed domain name disrupts Complainant’s investment
business, which constitutes bad faith registration and use under Policy ¶ 4(a)(i). See Lambros v. Brown, FA 198963 (Nat.
Arb. Forum Nov. 19, 2003) (finding that the respondent registered a domain name
primarily to disrupt its competitor when it sold similar goods as those offered
by the complainant and “even included Complainant's personal name on the
website, leaving Internet users with the assumption that it was Complainant's
business they were doing business with”); see also S. Exposure v. S. Exposure, Inc.,
FA 94864 (Nat. Arb. Forum
Respondent’s <rgmtradingllc.com> domain name resolves to a website purporting to be Complainant’s website. Respondent attempts to use this website to pass itself off as Complainant and receive fraudulent advance fees from individual investors. Internet users, interested in investing with Complainant, may become confused as to Complainant’s association with and sponsorship of the disputed domain name, resolving website, and investment opportunities. Respondent specifically attempts to profit from that confusion. The Panel finds Respondent’s use of the disputed domain name constitutes 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 Perot Sys. Corp. v. Perot.net, FA 95312 (Nat. Arb. Forum Aug. 29, 2000) (finding bad faith where the domain name in question is obviously connected with the complainant’s well-known marks, thus creating a likelihood of confusion strictly for commercial gain).
The Panel finds 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 <rgmtradingllc.com> domain name be TRANSFERRED from Respondent to Complainant.
Bruce E. Meyerson, Panelist
Dated: February 9, 2010
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