Securities Investor Protection Corporation v. Andy Guevarra
Claim Number: FA1102001371560
Complainant is Securities Investor Protection Corporation (“Complainant”), represented by Josephine Wang, Washington D.C., USA. Respondent is Andy Guevarra (“Respondent”), New York, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <srpla.org>, registered with Directi Internet Solutions Pvt. Ltd. d/b/a PublicDomainRegistry.com.
The undersigned certifies that she has acted independently and impartially and that to the best of her knowledge she has no known conflict in serving as Panelist in this proceeding. Hon. Carolyn Marks Johnson sits as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically February 7, 2011; the National Arbitration Forum received payment February 7, 2011.
On February 7, 2011, Directi Internet Solutions Pvt. Ltd. d/b/a PublicDomainRegistry.com confirmed by e-mail to the National Arbitration Forum that the <srpla.org> 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 verified that Respondent is bound by the Directi Internet Solutions Pvt. Ltd. d/b/a PublicDomainRegistry.com registration agreement and thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On February 10, 2011, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 2, 2011, 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@srpla.org. Also on February 10, 2011, the Written Notice of the Complaint, notifying Respondent of the email 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 National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On March 8, 2011, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Hon. Carolyn Marks Johnson to sit as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration Forum 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 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. The domain name that Respondent registered, <srpla.org>, is confusingly similar to Complainant’s SIPC mark.
2. Respondent has no rights to or legitimate interests in the <srpla.org> domain name.
3. Respondent registered and used the <srpla.org> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Securities Investor Protection Corporation, is a large non-profit financial services firm specializing in aiding the customers of failed broker-dealers. Complainant has been operating in this field since 1970. Complainant uses the SIPC mark to support its business functions and has done so since its inception. Complainant holds a service mark registration with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 2,081,146 issued July 22, 1997).
Respondent, Andy Guevarra, registered the <srpla.org> domain name September 27, 2010. The domain name resolves to a site offering financial services to investors seeking advice and assistance. Respondent presumably receives some type of fee for aiding investors that utilize its site.
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."
Given 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 will draw such inferences as the Panel 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 Complainant to 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 to 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 a registered service mark for its SIPC acronym with a federal trademark authority, the USPTO (Reg. No. 2,81,146 issued July 22, 1997). The Panel finds that evidence of this service mark registration is sufficient to establish rights in the SIPC mark pursuant to Policy ¶ 4(a)(i). See Expedia, Inc. v. Tan, FA 991075 (Nat. Arb. Forum June 29, 2007) (“As the [complainant’s] mark is registered with the USPTO, [the] complainant has met the requirements of Policy ¶ 4(a)(i).”); see also Intel Corp. v. Macare, FA 660685 (Nat. Arb. Forum Apr. 26, 2006) (finding that the complainant had established rights in the PENTIUM, CENTRINO and INTEL INSIDE marks by registering the marks with the USPTO).
Complainant contends that the <srpla.org> domain name is confusingly similar to its SIPC mark. The domain name includes two of the same letters in the mark along with other letters within the acronym, “r,” “l,” and “a.” The disputed domain name also includes the generic top-level domain (“gTLD”) “.org.” The Panel finds that the dominant letters of Complainant’s mark, the letters “S” and “P,” which stand for “Securities” and “Protection,” are in the same position in Respondent’s disputed domain name, which also uses the “s” and “p” as acronyms for “securities” and “protection.” The Panel determines that based on the position of these two main consonants, the disputed domain name and Complainant’s mark are phonetically similar. As the addition of a gTLD is irrelevant to a Policy ¶ 4(a)(i) analysis, this Panel concludes that Respondent’s <srpla.org> domain name is confusingly similar to Complainant’s SIPC mark pursuant to Policy ¶ 4(a)(i). See Am. Online, Inc. v. Peppler, FA 103437 (Nat. Arb. Forum Feb. 22, 2002) (“The word “quest” and “crest” are similar in sound and are phonetically similar and thus these two words may be considered confusingly similar. Therefore, confusing similarity exists between <mapcrest.com> and Complainant’s MAP QUEST mark.”); see also Am. Online, Inc. v. Triple E Holdings Ltd., FA 281584 (Nat. Arb. Forum July 15, 2004) (“Words that are spelled differently but are phonetically similar do not negate the confusing similarity of Respondent’s domain name pursuant to Policy ¶ 4(a)(i).”); see also Trip Network Inc. v. Alviera, FA 914943 (Nat. Arb. Forum Mar. 27, 2007) (concluding that the affixation of a gTLD to a domain name is irrelevant to a Policy ¶ 4(a)(i) analysis).
Although use of the domain name is typically not considered in an analysis of whether the domain name is confusingly similar to the mark, here, the Panel notes that the website to which the domain name resolves contains language taken verbatim from Complainant’s website. The Panel finds that the website content at <srpla.org> domain name indicates it was registered with the intent to be confusingly similar to Complainant’s SIPC mark and that the combination of a strikingly similar domain name and a fraudently similar website, make the domain
name confusingly similar to SIPC.
The Panel finds that Complainant satisfied the elements of ICANN Policy ¶ 4(a)(i).
Complainant alleges that Respondent lacks rights and legitimate interests in the <srpla.org> domain name. Previous panels have found that when a complainant makes a prima facie case to support its allegations, the burden shifts to the respondent to prove that it does have such rights to or legitimate interests pursuant to Policy ¶ 4(a)(ii). The Panel finds that Complainant made a prima facie case. Given Respondent’s failure to respond to the Complaint, the Panel may assume that Respondent does not have rights or legitimate interests in the <srpla.org> domain name. However, the Panel still examines the record to determine whether Respondent has rights or legitimate interests in the disputed domain name under Policy ¶ 4(c). See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name); see also Vanguard Group, Inc. v. Collazo, FA 349074 (Nat. Arb. Forum Dec. 1, 2004) (finding that because the respondent failed to submit a Response, “Complainant’s submission has gone unopposed and its arguments undisputed. In the absence of a Response, the Panel accepts as true all reasonable allegations . . . unless clearly contradicted by the evidence.”).
While Complainant does not make any arguments under Policy ¶ 4(c)(ii), the Panel must still examine the record to determine if Respondent owns any rights or legitimate interests in the disputed domain name by determining whether Respondent is commonly known by the disputed domain name. Respondent has failed to present any evidence that would establish such a fact, so this Panel looks to the WHOIS information, which lists the domain name registrant as “Andy Guevarra,” a name that the Panel determines is not similar to the <srpla.org> domain name. Consequently, the Panel finds that Respondent is not commonly known by the <srpla.org> domain name pursuant to Policy ¶ 4(c)(ii). See Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003) (stating “nothing in Respondent’s WHOIS information implies that Respondent is ‘commonly known by’ the disputed domain name” as one factor in determining that Policy ¶ 4(c)(ii) does not apply); see also 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 Policy ¶ 4(c)(ii) based on the WHOIS information and other evidence in the record).
Complainant alleges that Respondent uses its <srpla.org> domain name to operate a website that purports to provide financial relief to investors victimized by misconduct of registered securities broker-dealers in the United States. Respondent’s website suggests that it was created by the United States Congress, which Complainant asserts is false. Respondent’s website includes claim forms that investors are asked to fill out and provide financial information about their investments. Respondent’s website also incorporates large sections from Complainant’s website and provides Internet users with financial advice. The Panel finds that Respondent’s attempt to phish for financial information does not constitute a bona fide offering of goods or services under Policy ¶ 4(c)(i) and it is not a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). See Allianz of Am. Corp. v. Bond, FA 690796 (Nat. Arb. Forum June 12, 2006) (holding that the respondent’s use of the <allianzcorp.biz> domain name to fraudulently acquire the personal and financial information of Internet users seeking Complainant’s financial services 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)); see also Juno Online Servs., Inc. v. Nelson, FA 241972 (Nat. Arb. Forum Mar. 29, 2004) (finding that using a domain name in a fraudulent scheme to deceive Internet users into providing their credit card and personal information is not a bona fide offering of goods or services nor a legitimate noncommercial or fair use).
The Panel finds Complainant satisfied the elements of ICANN Policy ¶ 4(a)(ii).
Respondent uses the <srpla.org> domain name to resolve to a website that purports to provide financial relief to investors and asks for financial information from investors attempting to receive the relief. As the resolving website contains verbatim language from Complainant’s website, the Panel finds that Respondent is attempting to commercially benefit by creating confusion among Internet users as to Complainant’s affiliation with the disputed domain name. Therefore, the Panel holds that Respondent’s registration and use of the <srpla.org> domain name was and is in bad faith under Policy ¶ 4(b)(iv). See Am. Online, Inc. v. Fu, D2000-1374 (WIPO Dec. 11, 2000) (finding that the respondent violated Policy ¶ 4(b)(iv) by displaying the complainant’s mark on its website and offering identical services as those offered by the complainant); see also 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).
The Panel further finds that Respondent’s attempt to acquire financial information from Internet users, when Respondent is pretending to be a protection agency website sanctioned by the United States Congress, amounts to phishing, which is further evidence of bad faith registration and use pursuant to Policy ¶ 4(a)(iii). See Hess Corp. v. GR, FA 770909 (Nat. Arb. Forum Sept. 19, 2006) (finding that the respondent demonstrated bad faith registration and use because it was attempting to acquire the personal and financial information of Internet users through a confusingly similar domain name); see also HOPE worldwide, Ltd. v. Jin, FA 320379 (Nat. Arb. Forum Nov. 11, 2004) (finding that the respondent registered and used the domain name in bad faith because it redirected Internet users to a website that imitated the complainant’s website and was used to fraudulently acquire personal information from the complainant’s potential associates).
The Panel finds Complainant satisfied the elements of ICANN Policy ¶ 4(a)(iii).
Having failed to establish all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <srpla.org> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Carolyn Marks Johnson, Panelist
Dated: March 22, 2011.
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