Ant Small and Micro Financial Services Group Co., Ltd. v. Ant Fin
Claim Number: FA1711001759326
Complainant is Ant Small and Micro Financial Services Group Co., Ltd. (“Complainant”), represented by Kristen McCallion of Fish & Richardson P.C., New York, USA. Respondent is Ant Fin (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <antfinancial-investorrelations.com>, registered with GoDaddy.com, LLC.
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.
Charles A. Kuechenmeister
Complainant submitted a Complaint to the Forum electronically on November 20, 2017; the Forum received payment on November 20, 2017.
On November 21, 2017, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <antfinancial-investorrelations.com> domain name (the “Domain Name”) is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, LLC 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 November 27, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 18, 2017 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@antfinancial-investorrelations.com. Also on November 27, 2017, 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 Forum transmitted to the parties a Notification of Respondent Default.
On December 22, 2017, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Charles A. Kuechenmeister as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the 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 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
Complainant, Ant Small and Micro Financial Services Group Co., Ltd. (“Ant Financial”), is a financial services technology company operating the world’s largest mobile and online payments platform. Alibaba Group Holding Limited (“Alibaba”) is an e-commerce company that provides sales services via web portals. Alibaba registered the ANT FINANCIAL mark with China’s State Administration for Industry and Commerce (“SAIC”) (Reg. No. 14687126) on October 21, 2015. Alibaba also registered the ANT FINANCIAL mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 5,308,989) on October 17, 2017. Complainant has the exclusive right to use Alibaba’s ANT FINANCIAL trademark through a license agreement between Complainant and Alibaba, as well as the right to bring any action or proceeding for infringement of the ANT FINANCIAL trademark. Respondent’s Domain Name is confusingly similar to Complainant’s mark because ANT FINANCIAL is incorporated entirely into the Domain Name. Respondent’s Domain Name adds a hyphen, the descriptive terms “investor relations,” and the generic top-level domain (“gTLD”) “.com,” but these additions are insufficient to distinguish the Domain Name from Complainant’s mark.
Respondent has no rights or legitimate interest in the Domain Name. Respondent does not use it in connection with a bona fide offering of goods or services, or a legitimate non-commercial or fair use of the domain. Rather, the Domain Name resolves to an inactive and parked website. Respondent is not commonly known by the Domain Name. Additionally, Respondent has never been licensed or authorized to use Complainant’s ANT FINANCIAL mark.
Respondent registered and is using the Domain Name in bad faith. The Domain Name resolves to an inactive website with no demonstrable intent to make active use of it. Also, Respondent uses the domain name in connection with a phishing scam by sending fraudulent emails in an attempt to solicit money. Finally, Respondent had actual knowledge of Complainant’s rights to the ANT FINANCIAL mark when it registered the Domain Name.
B. Respondent
Respondent failed to 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 will decide this administrative proceeding on the basis of Complainant's undisputed representations pursuant to paragraphs 5(f), 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 (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.”).
Alibaba registered the ANT FINANCIAL mark with the SAIC (Reg. No. 14687126) on October 21, 2015. See Compl. Ex. 3. Alibaba also registered the ANT FINANCIAL mark with the USPTO (Reg. No. 5,308,989) on October 17, 2017. Ibid. Registration of a mark with governmental agencies is sufficient to demonstrate rights to a mark for the purposes of Policy ¶ 4(a)(i). See Alibaba Group Holding Limited v. YINGFENG WANG, FA 1568531 (Forum Aug. 21, 2014) (“Complainant has rights in the ALIBABA mark under the Policy through registration with trademark authorities in numerous countries around the world.”).
Alibaba has granted a license to Complainant to use the ANT FINANCIAL trademark, and in its own name to bring any action or proceeding for infringement of the ANT FINANCIAL trademark. See Compl. Ex. 4. A license agreement from the owner of a mark confers rights in and to that mark to the licensee for the puposes of Policy ¶ 4(a)(i). MGM resorts International v. Leander Calhoun, FA1607001685559 (Forum Sep. 1, 2016) (“[A] licensing agreement stands to confer rights in the licensed mark.)” See also, Toyota Motor Sales U.S.A. Inc v. J. Alexis Prods., D2003-0624 (WIPO Oct. 16, 2003) (holding that a non-exclusive licensee to a mark has established rights in that mark). Based upon the foregoing, the Panel finds that Complainant has rights to the ANT FINANCIAL mark.
Respondent’s <antfinancial-investorrelations.com> Domain Name is confusingly similar to Complainant’s ANT FINANCIAL mark. It incorporates the mark entirely. It adds a hyphen, the descriptive terms “investor relations,” and the “.com” gTLD, but these additions are insufficient to distinguish the Domain name from complainant’s mark for the purposes of Policy ¶ 4(a)(i). Gillette Co. v. RFK Assocs., FA 492867 (Forum July 28, 2005) (finding that the addition of the term “batteries,” which described the complainant’s products, and the generic top-level domain “.com” were insufficient to distinguish the respondent’s <duracellbatteries.com> from the complainant’s DURACELL mark).
For the reasons discussed above, the Panel finds that the Domain Name is identical or confusingly similar to the ANT FINANCIAL mark, in which Complainant has rights.
If a complainant makes a prima facie case that the respondent lacks rights or legitimate interests in the domain name under Policy ¶ 4(a)(ii), the burden of production shifts to respondent to come forward with evidence that it has rights or legitimate interests in it. If a respondent fails to come forward with such evidence, the complainant’s prima facie evidence will be sufficient to establish that respondent lacks such rights or legitimate interest. If, though, the respondent does come forward with such evidence, the Panel must assess the evidence in its entirety. At all times, the burden of proof remains on the complainant. WIPO Overview 3.0 at ¶ 2.1.
Complainant asserts that Respondent has no rights or legitimate interests in the Domain Name because (i) he is not using the Domain Name in connection with a bona fide offering of goods and services or for a legitimate noncommercial or other fair use because the web site resolving from the Domain Name is inactive, and this use, or non-use, cannot constitute a bona fide offering of goods and services, or a legitimate noncommercial or fair use of the domain name, (ii) he is not commonly known by the Domain Name, and (iii) Complainant has not authorized him to use the ANT FINANCIAL mark. These allegations are supported by competent evidence. Exhibit 7 attached to the Complaint is a screenshot of the web page found at the Domain Name, which contains no substantive content. A domain name resolving to an inactive and/or parked webpage is evidence that a respondent has no rights or legitimate interests in that name under Policy ¶¶ 4(c)(i) and (iii). See Hewlett-Packard Co. v. Shemesh, FA 434145 (Forum Apr. 20, 2005) (“The Panel finds that the [failure to make an active use] of a domain name that is identical to Complainant’s mark is not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) and it is not a legitimate noncommercial or fair use of the domain name pursuant to Policy ¶ 4(c)(iii).”).
The WHOIS record associated with this case identifies registrant as “Ant Fin.” See Compl. Ex. 2. This is competent evidence that Respondent is not commonly known by the Domain Name. See Guardair Corporation v. Pablo Palermo, FA1407001571060 (Forum Aug. 28, 2014) (holding that the respondent was not commonly known by the <guardair.com> domain name according to Policy ¶ 4(c)(ii), as the WHOIS information lists “Pablo Palermo” as registrant of the disputed domain name). Finally, Complainant states that it has never authorized Respondent to use its ANT FINANCIAL mark in any domain name registration. Complainant has specific competence to make this statement, and it is unchallenged by any evidence before the Panel. For this reason, the Panel finds that Complainant has made a prima facie showing that Respondent has no rights or legitimate interests in the Domain Name.
On the evidence before the Panel, it finds that Respondent has no rights or legitimate interests in the Domain Name.
Exhibit 7 to the Complaint is a screen shot of the web site resolving from the Domain Name. It shows only the words “Future home of something quite cool. If you’re the site owner log in here to launch. If you are a visitor, check back soon.” This is clearly an inactive web site, and using a domain name for such a site has often been held to be evidence of bad faith under the Policy. See VideoLink, Inc. v. Xantech Corporation, FA1503001608735 (Forum May 12, 2015) (“Failure to actively use a domain name is evidence of bad faith registration and use pursuant to Policy ¶ 4(a)(iii).”).
Also, it appears that Respondent is using the Domain Name in furtherance of a phishing scam by attempting to solicit money from potential investors through fraudulent emails and fake share certificates. Exhibits 7 and 8 to the Complaint are copies of emails from a Mr. Lee Johnson to a potential Ant Financial investor in an attempt to solicit money. The emails contain links to the Ant Financial web site and display the ANT FINANCIAL trademark. This Mr. Johnson is thus using the Domain Name and corresponding @antfinancial-investorrelations.com email address to defraud and confuse the public by representing that he is an executive of Ant Financial and accepting money in exchange for Ant Financial share certificates, which are fake. Using a domain name in connection with a phishing scam demonstrates bad faith registration and use. See Zoetis Inc. and Zoetis Services LLC v. VistaPrint Technologies Ltd, FA1506001623601 (Forum July 14, 2015) (“Respondent’s attempt to use the <zoietis.com> domain name to phish for personal information in fraudulent emails also constitutes bad faith pursuant to Policy ¶ 4(a)(iii).”).
On the foregoing evidence, the Panel finds that Respondent registered and is using the Domain Name in bad faith.
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <antfinancial-investorrelations.com> domain name be TRANSFERRED from Respondent to Complainant.
Charles A. Kuechenmeister, Panelist
January 2, 2018
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