Virtu Financial Operating, LLC v. Lester Lomax
Claim Number: FA1409001580464
Complainant is Virtu Financial Operating, LLC (“Complainant”), represented by Justin Miller, Texas, USA. Respondent is Lester Lomax (“Respondent”), Oklahoma, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <virtu-financial.com>, registered with Todaynic.com, 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.
David A. Einhorn appointed as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on September 18, 2014; the National Arbitration Forum received payment on September 24, 2014.
On September 18, 2014, Todaynic.com, Inc. confirmed by e-mail to the National Arbitration Forum that the <virtu-financial.com> domain name is registered with Todaynic.com, Inc. and that Respondent is the current registrant of the name. Todaynic.com, Inc. has verified that Respondent is bound by the Todaynic.com, Inc. 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 September 29, 2014, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 20, 2014 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@virtu-financial.com. Also on September 29, 2014, 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 October 24, 2014, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed David A. Einhorn 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’s Contentions
1. Complainant has rights in the VIRTU and VIRTU FINANCIAL mark under Policy ¶ 4(a)(i).
a. Complainant is a leading global electronic market making firm and the owner of the domain name <virtu.com>, <virtufinancial.com>, and several other related domain names.
b. Complainant owns a registration for VIRTU with the United States Patent and Trademark Office.
2. Respondent has no rights or legitimate interests in the <virtu-financial.com> domain name.
a. Respondent has no affiliation with Complainant and is not authorized to use Complainant’s mark or offer anyone a position without Complainant’s company.
b. Respondent uses the disputed domain name to obtain bank account information from Internet users to whom Respondent has offered a job position with Complainant’s business.
c. Respondent registered and is using the <virtu-financial.com> domain name in bad faith. Respondent attempts to pass itself off as Complainant for the purpose of a phishing scheme aimed at attaining banking information from Internet users of whom Respondent wrongfully offered a job at Complainant’s company. Respondent is thus attempting to cause confusion for commercial gain.
B. Respondent
Respondent failed to submit a Response in this proceeding. The Panel notes that Respondent’s <virtu-financial.com> domain name was registered on May 12, 2014.
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 contends that it has rights in the VIRTU mark under Policy ¶ 4(a)(i). Complainant provides evidence of its application for the VIRTU mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 4,137,867, registered May 8, 2012). Prior panels have concluded that evidence of a registration with the USPTO is sufficient to establish rights in a given mark. See Microsoft Corp. v. Burkes, FA 652743 (Nat. Arb. Forum Apr. 17, 2006) (“Complainant has established rights in the MICROSOFT mark through registration of the mark with the USPTO.”). The Panel concludes that Respondent has rights in its VIRTU mark.
The disputed domain name is identical to the registered mark, with the addition of the descriptive word “financial” set off by a dash. The Panel finds Respondent’s domain name to be confusingly similar to Complainant’s mark under Policy ¶ 4(a)(i).
Complainant contends that Respondent has no rights or legitimate interests in the <virtu-financial.com> domain name under Policy ¶ 4(c)(ii). Complainant explains that Respondent has no affiliation with Complainant and is not authorized to use Complainant’s mark or offer anyone a position at Complainant’s company. The Panel notes that the WHOIS information lists “Lester Lomax” as registrant. The panel in Google Inc. v. DOMAIN ADMINISTRATOR / FUNDACION PRIVATE WHOIS, FA1519295 (Nat. Arb. Forum Oct. 29, 2013) held that some of the “best evidence to determine if a Respondent has rights or interests by being commonly known by the disputed domain name is the WHOIS record.” Likewise, in Braun Corp. v. Loney, FA 699652 (Nat. Arb. Forum July 7, 2006) the panel concluded that the respondent was not commonly known by the disputed domain names where the WHOIS information, as well as all other information in the record, gave no indication that the respondent was commonly known by the domain names, and the complainant had not authorized the respondent to register a domain name containing its registered mark. Taking prior panel holdings such as these into consideration, the Panel concludes that Respondent is not commonly known by the <virtu-financial.com> domain name under Policy ¶ 4(c)(ii).
Complainant additionally argues that Respondent uses the disputed domain name to obtain bank account information from Internet users to whom respondent has offered a job position with Complainant’s business. Complainant states that Respondent attempts to pass itself off as Complainant’s HR department in order to complete a phishing scheme for the purpose of collecting bank information from unsuspecting Internet users. Complainant states that Respondent offers individuals job positions with Complainant’s company and requests that they fill out surveys asking for personal information, including bank account numbers. Prior panels have continuously concluded that phishing schemes are not a bona fide offering of goods or services or a legitimate noncommercial or fair use of a domain name. See Juno Online Servs., Inc. v. Iza, FA 245960 (Nat. Arb. Forum May 3, 2004) (maintaining that using a domain name to redirect “Internet users to a website that imitates Complainant’s billing website, and is used to fraudulently acquire personal information from Complainant’s clients,” is neither a bona fide offering of goods or services nor a legitimate noncommercial or fair use). The Panel finds for Complainant under Policy ¶¶ 4(c)(i) or (iii).
Thus, Complainant has also satisfied Policy ¶ 4(a)(ii).
Complainant further claims that Respondent registered and is using the <virtu-financial.com> domain name in bad faith. As noted above, Respondent apparently uses the disputed domain name to attempt to pass itself off as Complainant for the purpose of a phishing scheme aimed at attaining banking information from Internet users to whom Respondent wrongfully offered a job at Complainant’s company. Prior panels have concluded that attracting Internet users to a website and confusing them as to a complainant’s involvement in the website, and thereby profitting financially, is a strong indication of bad faith use and registration under Policy ¶ 4(b)(iv) See H-D Michigan, Inc. v. Petersons Auto., FA 135608 (Nat. Arb. Forum Jan. 8, 2003) (finding that the disputed domain name was registered and used in bad faith pursuant to Policy ¶ 4(b)(iv) through the respondent’s registration and use of the infringing domain name to intentionally attempt to attract Internet users to its fraudulent website by using the complainant’s famous marks and likeness). Further, Panels have concluded that confusing internet users for the purpose of a phishing scheme is additional evidence of bad faith under Policy ¶ 4(b)(iv). See Hess Corp. v. GR, FA 770909 (Nat. Arb. Forum Sept. 19, 2006) (determining 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). The Panel concludes that Respondent registered and is using the <virtu-financial.com> domain name in bad faith under Policy ¶ 4(b)(iv).
Thus, Complainant has also 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 <virtu-financial.com> domain name be TRANSFERRED from Respondent to Complainant.
David A. Einhorn, Panelist
Dated: November 14, 2014
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