AQR Capital Management v. Pbaqr Capm
Claim Number: FA1203001437038
Complainant is AQR Capital Management (“Complainant”), represented by Jacob R. Bishop of Dechert LLP, Pennsylvania, USA. Respondent is Pbaqr Capm (“Respondent”), Florida, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <aqrcapm.com>, registered with MELBOURNE IT, LTD. d/b/a INTERNET NAMES WORLDWIDE.
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 March 29, 2012; the National Arbitration Forum received payment on March 30, 2012.
On March 29, 2012, MELBOURNE IT, LTD. d/b/a INTERNET NAMES WORLDWIDE confirmed by e-mail to the National Arbitration Forum that the <aqrcapm.com> domain name is registered with MELBOURNE IT, LTD. d/b/a INTERNET NAMES WORLDWIDE and that Respondent is the current registrant of the name. MELBOURNE IT, LTD. d/b/a INTERNET NAMES WORLDWIDE has verified that Respondent is bound by the MELBOURNE IT, LTD. d/b/a INTERNET NAMES WORLDWIDE 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 4, 2012, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 24, 2012 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@aqrcapm.com. Also on April 4, 2012, the Written Notice of the Complaint, notifying Respondent of the e-mail 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 April 30, 2012, 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
a. Complainant, AQR Capital Management, is an investment management firm that offers a range of financial services to institutional investors.
b. Complainant owns several trademark registrations for the AQR mark with the following trademark authorities:
i. United States Patent and Trademark Office ("USPTO") (e.g., Reg. No. 3,784,266 registered February 16, 2010);
ii. IP Australia (“IPA”) (Reg. No. 1262618 registered September 17, 2008);
iii. European Union Office for Harmonization in the Internal Market (“OHIM”) (Reg. No. 7250764 registered February 6, 2009); and
iv. Canadian Intellectual Property Office (“CIPO”) (Reg. No. TMA819122 registered March 5, 2012).
c. Respondent, Pbaqr Capm, registered the <aqrcapm.com> domain name on February 10, 2012.
d. Respondent’s domain name resolves to a website that is a nearly identical copy of Complainant’s official website.
e. Respondent does not have rights or legitimate interests in the disputed domain name as evidenced by its attempts to pass itself off as Complainant.
f. Respondent registered and is using the domain name in bad faith for commercial gain by attempting to pass itself off as Complainant.
B. Respondent
Respondent did not submit a Response.
Complainant holds registered trademarks for the AQR mark with the United States Patent and Trademark Office. Respondent did not submit a Response in this proceeding.
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."
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.
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.”).
Complainant has presented the Panel with evidence to show that it has rights in the AQR mark. Complainant has supplied the Panel with trademark registrations for its mark with the USPTO (e.g., Reg. No. 3,784,266 registered February 16, 2010); IPA (Reg. No. 1262618 registered September 17, 2008); OHIM (Reg. No. 7250764 registered February 6, 2009); and CIPO (Reg. No. TMA819122 registered March 5, 2012). The Panel accepts this evidence and finds that Complainant has produced sufficient evidence to establish rights in the AQR mark under Policy ¶ 4(a)(i). See Google, Inc. v. DktBot.org, FA 286993 (Nat. Arb. Forum Aug. 4, 2004) (finding that the complainant had established rights in the GOOGLE mark through its holding of numerous trademark registrations around the world); see also Am. Int’l Group, Inc. v. Morris, FA 569033 (Nat. Arb. Forum Dec. 6, 2005) (“Complainant has established rights in the AIG mark through registration of the mark with several trademark authorities throughout the world, including the United States Patent and Trademark office (‘USPTO’)”).
Further, Complainant argues that the <aqrcapm.com> domain name is confusingly similar to its AQR mark. Complainant notes that the domain name contains its entire mark in addition to the letter string “capm” which Complainant contends is an abbreviation for “capital management,” which is the second and third portion of Complainant’s business name. The domain name also contains the generic top-level domain (“gTLD”) “.com.” Therefore, the Panel finds that the disputed domain name is confusingly similar to Complainant’s mark under Policy ¶ 4(a)(i). See Am. Online, Inc. v. Amigos On Line RJ, FA 115041 (Nat. Arb. Forum Aug. 28, 2002) (finding that the <aolrj.com> domain name was confusingly similar to the complainant’s AOL mark because “…the addition of a string of indiscriminate letters to a famous mark in a second level domain does not differentiate the domain name from the mark.”); see also Am. Int’l Group, Inc. v. Ling Shun Shing, FA 206399 (Nat. Arb. Forum Dec. 15, 2003) (finding that the addition of the term “assurance,” to the complainant’s AIG mark failed to sufficiently differentiate the name from the mark under Policy ¶ 4(a)(i) because the appended term related directly to the complainant’s business); see also Rollerblade, Inc. v. McCrady, D2000-0429 (WIPO June 25, 2000) (finding that the top level of the domain name such as “.net” or “.com” does not affect the domain name for the purpose of determining whether it is identical or confusingly similar).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(i).
Complainant alleges that Respondent holds no rights or legitimate interests in the disputed domain name. This allegation must be supported with a prima facie showing by Complainant under Policy ¶ 4(a)(ii). After a complainant successfully makes a prima facie case, a respondent is faced with the burden of proving it does have rights or legitimate interests in the domain name. In Swedish Match UK Ltd. v. Admin, Domain, FA 873137 (Nat. Arb. Forum Feb. 13, 2007), the panel held that when a complainant produces a prima facie case, the burden of proof then shifts to the respondent to demonstrate its rights or legitimate interests in the domain name under Policy ¶ 4(c). See also Compagnie Generale des Matieres Nucleaires v. Greenpeace Int’l, D2001-0376 (WIPO May 14, 2001) (“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.”). The Panel holds that Complainant has made a prima facie case.
Based upon the WHOIS information, which identifies the registrant of the domain name as “Pbaqr Capm,” and the lack of evidence indicating otherwise, the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii), although Respondent’s name includes the “Capm” portion of the domain name at issue. 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 Policy ¶ 4(c)(ii) based on the WHOIS information and other evidence in the record); see also AOL LLC v. AIM Profiles, FA 964479 (Nat. Arb. Forum May 20, 2007) (finding that although the respondent listed itself as “AIM Profiles” in the WHOIS contact information, there was no other evidence in the record to suggest that the respondent was actually commonly known by that domain name).
Complainant argues that Respondent does not have rights or legitimate interests in the domain name at issue. Complainant claims that Respondent is attempting to “masquerade as Complainant, presumably for financial gain.” The Panel has compared the screen shot of Complainant’s official website in Exhibit H with the screen shot of Respondent’s resolving website in Exhibit L. The Panel finds that Respondent’s use of the domain name to provide a virtually identical website as Complainant to not constitute 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 Kmart of Mich., Inc. v. Cone, FA 655014 (Nat. Arb. Forum April 25, 2006) (The panel found the respondent’s attempt to pass itself of as the complainant was not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii) when the respondent used the disputed domain name to present users with a website that was nearly identical to the complainant’s website).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant contends that Respondent registered the disputed domain name for some financial gain. Based upon the record, the Panel finds that Respondent is attempting to pass itself off as Complainant, as discussed above. The Panel further presumes that Respondent commercially benefits from this use. Therefore, the Panel finds that Respondent registered and is using the disputed domain name in bad faith under Policy ¶ 4(b)(iv). See Allianz of Am. Corp. v. Bond, FA 680624 (Nat. Arb. Forum June 2, 2006) (finding bad faith registration and use under Policy ¶ 4(b)(iv) where the respondent was diverting Internet users searching for the complainant to its own website and likely profiting); see also AOL LLC v. iTech Ent, LLC, FA 726227 (Nat. Arb. Forum July 21, 2006) (finding that the respondent took advantage of the confusing similarity between the <theotheraol.com> and <theotheraol.net> domain names and the complainant’s AOL mark, which indicates bad faith registration and use pursuant to Policy ¶ 4(b)(iv)).
Further, Complainant argues that Respondent has intentionally attempted to pass itself off as Complainant. Complainant argues that Respondent’s domain name resolves to a website that is nearly identical to Complainant’s official website. Such conduct has been found to be evidence of bad faith in other UDRP cases. The Panel agrees and finds accordingly under Policy ¶ 4(a)(iii). See 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); see also Wells Fargo & Co. v. Mihael, FA 605221 (Nat. Arb. Forum Jan. 16, 2006) (“Complainant asserts,…that soon after the disputed domain name was registered, Respondent arranged for it to resolve to a web site closely resembling a legitimate site of Complainant, called a ‘doppelganger’ (for double or duplicate) page, the purpose of which is to deceive Complainant’s customers into providing to Respondent their login identification, social security numbers, and/or account information and Personal Identification Numbers…. The Panel finds that Respondent’s behavior, as alleged, constitutes bad faith registration and use of the subject domain name pursuant to Policy ¶ 4(a)(iii).”).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <aqrcapm.com> domain name be TRANSFERRED from Respondent to Complainant.
Bruce E. Meyerson, Panelist
Dated: May 4, 2012
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