Incapital Holdings, LLC v. Goldzoneltd c/o Frank Neumann
Claim Number: FA1104001384994
Complainant is Incapital Holdings, LLC (“Complainant”), represented by Christopher J. Bischoff of Bischoff & Associates, Ltd., Illinois, USA. Respondent is Goldzoneltd c/o Frank Neumann (“Respondent”), Germany.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <incapital.biz>, registered with Directi Internet Solutions Pvt. Ltd. d/b/a publicdomainregistry.com.
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 April 20, 2011; the National Arbitration Forum received payment on April 20, 2011.
On April 21, 2011, Directi Internet Solutions Pvt. Ltd. d/b/a publicdomainregistry.com confirmed by e-mail to the National Arbitration Forum that the <incapital.biz> 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 disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On April 21, 2011, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 11, 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@incapital.biz. Also on April 21, 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 May 13, 2011, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Bruce E. Meyerson as Panelist.
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" 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. Respondent’s <incapital.biz> domain name is identical to Complainant’s INCAPITAL mark.
2. Respondent does not have any rights or legitimate interests in the <incapital.biz> domain name.
3. Respondent registered and used the <incapital.biz> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Incapital Holdings, LLC, is engaged in the securities, investment and financial services industry with offices worldwide. Complainant owns a trademark registration for the INCAPITAL mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 2,580,003 issued June 11, 2002).
Respondent, Goldzoneltd c/o Frank Neumann, registered the <incapital.biz> domain name on September 29, 2010. The disputed domain name resolves to a website running an illegal “High Yield Investment Program” or Ponzi scheme.
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 owns a trademark registration for the INCAPITAL mark with the USPTO (Reg. No. 2,580,003 issued June 11, 2002). The Panel finds that this USPTO trademark registration is conclusive evidence of Complainant’s rights in the INCAPITAL mark pursuant to Policy ¶ 4(a)(i), even though Respondent lives or operates in another country. See AOL LLC v. Interrante, FA 681239 (Nat. Arb. Forum May 23, 20060 (finding that where the complainant had submitted evidence of its registration with the USPTO, “such evidence establishes complainant’s rights in the mark pursuant to Policy ¶ 4(a)(i).”); see also Renaissance Hotel Holdings, Inc. v. Renaissance Cochin, FA 932344 (Nat. Arb. Forum Apr. 23, 2007) (finding that it does not matter whether the complainant has registered its trademark in the country in which the respondent resides, only that it can establish rights in some jurisdiction).
Complainant argues that Respondent’s <incapital.biz> domain name is identical to Complainant’s INCAPITAL mark because the only difference is the addition of the generic top-level domain (“gTLD”) “.biz.” See Continental Airlines, Inc. v. Vartanian, FA 1106528 (Nat. Arb. Forum Dec. 26, 2007) (finding that the domain name <continentalairlines.biz> is identical to the complainant’s CONTINENTAL AIRLINES mark); see also Exxon Mobil Corp. v. Property Mgmt. Prof’l, FA 1059655 (Nat. Arb. Forum Sept. 25, 2007) (holding that the <exxon.biz> domain name is identical to Complainant’s EXXON mark despite the addition of the gTLD “.biz” because a “gTLD is irrelevant to a Policy ¶ 4(a)(i) analysis”). The Panel thus determines that Respondent’s <incapital.biz> domain name is identical to Complainant’s INCAPITAL mark pursuant to Policy ¶ 4(a)(i).
The Panel finds Policy ¶ 4(a)(i) has been satisfied.
Complainant alleges that Respondent lacks rights and legitimate interests in the disputed domain name, and the evidence put forth by Complainant to support this assertion establishes the prima facie case against Respondent required by Policy ¶ 4(a)(ii). Respondent now bears the burden of proving the existence of its rights or legitimate interests. Respondent’s failure to respond allows the Panel to conclude that Respondent has not met this burden and lacks rights and legitimate interests in the disputed domain name. See 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); see also Geocities v. Geocities.com, D2000-0326 (WIPO June 19, 2000) (finding that the respondent has no rights or legitimate interests in the domain name because the respondent never submitted a response or provided the panel with evidence to suggest otherwise). In order to make a full determination of Respondent’s rights and legitimate interests, however, the Panel elects to consider the evidence in light of the Policy ¶ 4(c) factors.
Complainant contends that Respondent has not authorized, licensed or given Respondent permission to own or use any domain names containing Complainant’s mark. The WHOIS information for the <incapital.biz> domain name lists the registrant as “Goldzoneltd c/o Frank Neumann,” which does not reflect an association with the disputed domain name. The Panel thus concludes that Respondent is not commonly known by the disputed domain name and accordingly lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(c)(ii). See Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Nat. Arb. Forum July 17, 2006) (concluding that the respondent was not commonly known by the <coppertown.com> domain name where there was no evidence in the record, including the WHOIS information, suggesting that respondent was commonly known by the disputed domain name); 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 asserts that Respondent uses the <incapital.biz> domain name to run an illegal “High Yield Investment Program”/Ponzi scheme. The Panel finds that using the disputed domain name appropriating Complainant’s mark for an illegal purpose for Respondent’s profit is not a bona fide offering of goods or services according to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See Nycomed Danmark ApS v. Diaz, D2006-0779 (WIPO Aug. 15, 2006) (concluding that the respondent’s use of a disputed domain name to operate a website promoting an illegal food supplement was not 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 also Bank of Am. Fork v. Shen, FA 699645 (Nat. Arb. Forum June 11, 2006) (finding that the respondent’s use of a domain name to redirect Internet users to websites unrelated to a complainant’s mark is not a bona fide use under Policy ¶ 4(c)(i)).
The Panel finds Policy ¶ 4(a)(ii) has been satisfied.
Complainant alleges that Respondent’s <incapital.biz> domain name resolves to a website for an illegal “High Yield Investment Program”/Ponzi scheme. Complainant argues that Respondent uses Complainant’s INCAPITAL mark in the disputed domain name to attract Internet users and create confusion as to the source, sponsorship, or affiliation of Respondent’s resolving website. Complainant contends that Respondent’s actions were motivated by financial gain in an effort to deceive people into believing they were investing their money with Complainant. The Panel therefore concludes that Respondent has registered and used the <incapital.biz> domain name in bad faith according to Policy ¶ 4(b)(iv). See Minn. State Lottery v. Mendes, FA 96701 (Nat. Arb. Forum Apr. 2, 2001) (finding bad faith because it would be illegal for the respondent to use the domain name <mnlottery.com> without government approval); see also MySpace, Inc. v. Myspace Bot, FA 672161 (Nat. Arb. Forum May 19, 2006) (holding that the respondent registered and used the <myspacebot.com> domain name in bad faith by diverting Internet users seeking the complainant’s website to its own website for commercial gain because the respondent likely profited from this diversion scheme).
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 <incapital.biz> domain name be TRANSFERRED from Respondent to Complainant.
Bruce E. Meyerson, Panelist
Dated: May 17, 2011
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