Insights Network v. Коршунов Максим Андреевич / Aleksandr Dovbush
Claim Number: FA1802001772364
Complainant is Insights Network (“Complainant”), represented by Sarah E Bro of McDermott Will & Emery LLP, California, USA. Respondent is Коршунов Максим Андреевич / Aleksandr Dovbush (“Respondent”), Russia.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain name at issue are <lnsights.network> and <insighst.network>, registered with 101domain GRS Limited and Tucows Domains Inc, respectively.
The undersigned certifies he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.
Houston Putnam Lowry, Chartered Arbitrator, as Panelist.
Complainant submitted a Complaint to the Forum electronically on February 16, 2018; the Forum received payment on February 16, 2018. The Complaint was received in both Russian and English.
On February 19, 2018 and February 22, 2018, 101domain GRS Limited and Tucows Domains Inc., respectively, confirmed by e-mail to the Forum that the <lnsights.network> and <insighst.network> domain names are registered with 101domain GRS Limited and Tucows Domains Inc. and that Respondent is the current registrant of the names. 101domain GRS Limited and Tucows Domains Inc. have verified that Respondent is bound by the 101domain GRS Limited and Tucows Domains Inc. registration agreements 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 February 28, 2018, the Forum served the Russian language Complaint and all Annexes, including a Russian language Written Notice of the Complaint, setting a deadline of March 20, 2018 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@lnsights.network and postmaster@insighst.network. Also on February 28, 2018, the Russian language 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 March 26, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Houston Putnam Lowry, Chartered Arbitrator, 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 the domain names be transferred from Respondent to Complainant.
A. Complainant
I. The Trademarks and Service Marks Upon Which the Complaint is Based
1. This Complaint is based on Complainant’s common law rights in the mark INSIGHTS NETWORK (“Complainant’s Mark” or “Mark”), which are sufficient for purposes of Policy ¶4(a)(i), because the Policy does not require a UDRP complainant to hold a trademark registration in order to acquire the protection of the Policy. See Microsoft Corporation v. Story Remix / Inofficial, FA 1734934 (Forum July 10, 2017)(finding that “The Policy does not require a complainant to own a registered trademark prior to a respondent’s registration if it can demonstrate established common law rights in the mark.”).
2. Since at least as early as January 2018, Complainant has used the trademark INSIGHTS NETWORK in interstate commerce in connection with goods and services related to blockchain- based data exchange. In addition, Complainant has used its official domain name, insights.network, since October 2017. See Congregation Shuvah Yisrael, Inc. v. Neckonoff, FA 1043126 (Forum Sept. 7, 2007) (finding that a complainant’s mark had established secondary meaning where the complainant had previously held the registration for a domain name identical to the mark).
3. Complainant is a data brokerage company that is using decentralized blockchain-based networks, smart contracts, and a coin or token structure to incentivize consumer data exchange. Thus, under the INSIGHTS NETWORK trademark, Complainant provides computer software platforms and computer software applications for processing, organizing, securing, exchanging, and storing data transactions and currency transactions; data brokerage services; data processing services; data compilation of information in the field of individual consumer data; digital token services; and, provision of prepaid tokens and virtual cryptocurrencies.
4. Evidence of Complainant’s use of the INSIGHTS NETWORK trademark in connection with its goods and services is enclosed with the complaint. The provided evidence, including Complainant’s website, Complainant’s consumer outreach and social media presence via Twitter, Telegram, and Medium, third-party media coverage pertaining to Complainant, as well as Complainant’s whitepaper regarding its INSIGHTS NETWORK goods and services, which has been distributed to potential consumers and partners worldwide, demonstrates that Complainant’s Mark has acquired secondary meaning in the minds of consumers. See Instra Corporation Pty Ltd v. Domain Management SPM , WIPO Case No. D2009-1097, (concluding that evidence of media coverage, email newsletters and social networking promoting the mark ASIA REGISTRY sufficiently proved it had acquired a secondary meaning for the purposes of Policy paragraph 4(a)(i)).
5. As a result of such widespread, continuous, and prominent use, Complainant’s Mark has acquired significant goodwill and public recognition, as a means by which the public identifies Complainant’s goods and services.
II. Factual and Legal Grounds on Which the Complaint is Made
A. The Domain Names are Confusingly Similar to Complainant’s Mark and Official Domain [Rule 3(b)(ix)(1)]
6. The Domain Names are confusingly similar to Complainant’s valuable INSIGHTS NETWORK trademark, as well as Complainant’s official domain, insights.network, and are likely to mislead, deceive and cause mistake as to the source, sponsorship, affiliation or endorsement of the Domain Names. Complainant registered the domain name insights.network in June 22, 2017, and has used its official domain name for Complainant’s business since October 2017.
7. Respondent’s use of these Domain Names that are fully comprised of misspelled versions of Complaint’s Mark appears to be an attempt to create a likelihood of confusion with Complainant’s Mark as to the source, sponsorship or affiliation, or endorsement of Respondent’s websites. Respondent’s Domain Names are likely to mislead and divert web users trying to locate legitimate information about Complainant, and have actually caused such diversion in at least one known instance.
8. The Domain Names at issue, including the “.network” gTLD, differ from Complainant’s Mark and its insights.network domain name by only one letter or a reordering of two letters. Namely, the lnsights.network domain name replaces the first letter “I” in “INSIGHTS” with the letter “l,” which causes the Domain Name to appear visually identical to Complainant’s official domain name. In addition, the Insighst.network domain name simply rearranges the last two letters of “INSIGHTS” to create the misspelled word “Insighst.” Thus, the Domain Names are “typosquatted” versions of Complainant’s INSIGHTS NETWORK trademark and insights.network domain name. Furthermore, while the affixation of a gTLD to a domain name is irrelevant to a Policy ¶4(a)(i) analysis, in this case, the “.network” gTLD serves to wholly duplicate Complainant’s full INSIGHTS NETWORK trademark. Accordingly, Respondent’s Domain Names are confusingly similar to Complainant’s Mark and official domain name as required under Policy ¶4(a)(i), and are likely to mislead web users. See Neiman Marcus Group, Inc. v. Party Night, Inc., FA 114546 (Forum July 23, 2002) (finding that the <neimanmacus.com> domain name was a simple misspelling of the complainant’s NEIMAN MARCUS mark and was a classic example of typosquatting, which was evidence that the domain name was confusingly similar to the mark); see also Overstock.com, Inc. v. Kirstie Montgomery, et. al., FA 1142096 (Forum Mar. 27, 2008) (finding over 20 domain names to be confusingly similar to the complainant’s OVERSTOCK mark, and noting that modifications such as incorrect characters in the domain names did not sufficiently distinguish any of the disputed domain names from the complainant’s mark, and that “all such modifications take advantage of common typing errors by Internet users”).
9. Respondent’s Domain Names have and are likely to misleadingly attract current and potential customers of Complainant. In addition, Internet users have been, and are likely to be, confused by the similarities between Complainant and the Domain Names, and are likely to believe that the latter is affiliated with Complainant.
10. Moreover, Respondent’s registration and use of the Domain Names has already caused at least one known instance of consumer confusion when Respondent used the Domain Names to host duplicate webpages and/or to pose as Complainant via messaging platforms and web advertising in order to redirect Complainant’s customers to the fake, copycat, phishing sites at lnsights.network and Insighst.network for financial gain.
B. Respondent Has No Rights or Legitimate Interests in the Domain Names [Rule 3(b)(ix)(2)]
11. Complainant’s Mark is not a generic or descriptive term or terms in which the Respondent might have an interest. Complainant’s Mark has acquired secondary meaning through Complainant’s substantial, continuous, and exclusive use of the Mark in connection with Complainant’s goods and services.
12. Respondent is neither affiliated with, nor has it been licensed or permitted to use Complainant’s Mark or any domain names incorporating the Mark. Under the Policy, Paragraph 4(a)(ii), a statement that the Respondent is not licensed or otherwise authorized to use the disputed domain name constitutes prima facie proof for the Complainant that the Respondent lacks any rights or legitimate interests in the Domain Names. See CareerBuilder, LLC v. Stephen Baker, (WIPO Case No. D2005-0251 May 6, 2005); See also Lockheed Martin Corporation v. Zhichao Yang, FA1701001714221 (Forum February 28, 2017) (“Lack of evidence in the record to indicate that the respondent had been authorized to register a domain name using a complainant’s mark supports a finding that Respondent does not have rights or legitimate interests in a disputed domain name.”).
13. On information and belief, Respondent is not commonly known by the Domain Names, either as a business, individual or other organization. See Policy 4(c)(ii).
14. Respondent is not making a legitimate noncommercial fair use of the Domain Names. See Policy, Paragraph 4(c)(iii). Rather, Respondent is not actively using the Domain Names at this time. Prior panels have found that the inactive holding of a disputed domain name is neither a bona fide offering of goods or services nor a legitimate noncommercial or fair use. See George Weston Bakeries Inc. v. McBroom, FA 933276 (Forum Apr. 25, 2007) (finding that the respondent had no rights or legitimate interests in a domain name under either Policy ¶4(c)(i) or Policy ¶4(c)(iii) where it failed to make any active use of the domain name).
15. Respondent’s failure to use the Domain Names to provide a bona fide offering of goods and services confirms that it does not have a right or legitimate interest in the Domain Names, particularly since Complainant has proven its rights in the Marks at issue. See Kate Spade, LLC v. Darmstadter Designs, D2001-1384 (WIPO January 3, 2002) (finding when a mark is proven, the burden then shifts to the domain holder to prove a right or legitimate interest); see also Lockheed Martin Corporation v. Armando Castorena FA1702001717508 (Forum March 17, 2017) (finding that “Respondent’s non-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) or a legitimate noncommercial or fair use pursuant to Policy ¶4(c)(iii).”).
16. Respondent has failed to make any developments or “demonstrable preparations” to use the Domain Names with a bona fide offering of goods or services. See Pirelli & C. S.p.A. v. Tabriz, FA 921798 (Forum Apr. 12, 2007) (finding that the respondent lacked rights or legitimate interests in a confusingly similar domain name that it had not made demonstrable preparations to use since its registration seven months prior to the complaint). In fact, Respondent’s only known use of the Domain Names has been to set up fraudulent clone sites duplicating Complainant’s official website in order to falsely pose as a representative of Complainant for phishing purposes. Respondent used messaging apps and web advertisements to direct potential Customers of Complainant to the typosquatted Domain Names hosting copycat websites. Upon information and belief, Respondent’s fraudulent redirection of Complainant’s customers to the Domain Names has resulted in Respondent’s acquisition of numerous Ethereum digital assets with an estimated financial value of over $110,000. Thus, the intent of Respondent’s registration and use of the Domain Names has been to trick users into believing they are at a website related to Complainant and to have site visitors give up personal information and digital assets to Respondent. Using the Domain Names in this manner is neither a bona fide offering of goods or services under Policy ¶4(c)(i), nor a legitimate noncommercial or fair use of the Domain Names under Policy ¶4(c)(iii). See Emerson Electric Co. v. Adilcon Rocha, FA 1735949 (Forum July 11, 2017) (finding that respondent’s attempt to pass off as complainant through emails does not constitute a bona fide offering of goods or services and, as such, respondent lacked rights or legitimate interests in the disputed domain name); see also Mortgage Research Center LLC v. Miranda, FA 993017 (Forum July 9, 2007) (“Because [the] respondent in this case is also attempting to pass itself off as [the] complainant, presumably for financial gain, the Panel finds the respondent is not using the <mortgageresearchcenter.org> domain name for 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).”).
17. Respondent’s activities constitute passing off, in that Respondent is trying to pass itself off as a Complainant. Passing off has been consistently held to demonstrate a lack of legitimate interest under Policy ¶¶4(c)(i) and 4(c)(iii) of the UDRP. See Lockheed Martin Corporation v. mail mail, FA1707001739473 (Forum August 9, 2017) (“Respondent does not use the <lm- corporation.com> domain name for any legitimate purpose because Respondent uses it to fraudulently obtain valuable and highly sensitive government contracts. Using a confusingly similar domain name to fraudulently obtain information or money fails to constitute a bona fide offering of goods or services or legitimate noncommercial or fair use”).
18. Respondent is not making a legitimate noncommercial or fair use of the Domain Names, and it appears that Respondent has chosen the lnsights.network and Insighst.network domains to fraudulently pose as Complainant for financial gain, to trade off of the reputation and goodwill associated with Complainant’s Mark, and to misleadingly divert Internet traffic from Complainant’s website. See Policy 4(c)(iii).
C. The Domain Names Were Registered and are Being Used in Bad Faith [ Rule 3(b)(ix)(3)]
19. As noted above, Complainant learned of Respondent’s fraudulent use of the Domain Names when Complainant’s customers reported that they had been redirected to lnsights.network or Insighst.network via a messaging platform or web advertisements in which Respondent was falsely posing as a representative of Complainant.
20. In addition to the fraudulent activities perpetrated by Respondent, there is now a serious risk that Respondent could also intercept e-mails erroneously addressed to @lnsights.network or @Insighst.network. The security risk caused by Respondent’s registration and use of the Domain Names is even more significant in this case because Complainant provides goods and services relating to financial information and valuable digital assets. Thus, the potential for serious harm that could be caused by the existence of these Domain Names and the chance for Respondent to intercept mis-addressed e-mails, and/or to use the Domain Names to further pose as a Complainant to perpetrate fraudulent activities and phishing scams is great. Thus, there is clear evidence that the Domain Names have been registered and used in bad faith and can cause significant disruption to Complainant’s business, and are also a security threat that may tarnish Complainant’s reputation and the goodwill associated with Complainant’s Mark. Using the Domain Names in this manner demonstrates Respondent’s bad faith under Policy ¶4(b)(iv) and otherwise. See Am. Int’l Group, Inc. v. Busby, FA 156251 (Forum May 30, 2003) (finding that the disputed domain name was registered and used in bad faith where the respondent hosted a website that “duplicated Complainant’s mark and logo, giving every appearance of being associated or affiliated with Complainant’s business . . . to perpetrate a fraud upon individual shareholders who respected the goodwill surrounding the AIG mark”); see also Xylem Inc. and Xylem IP Holdings LLC v. YinSi BaoHu YiKaiQi, FA1504001612750 (Forum May 13, 2015) (“The Panel agrees that Respondent’s use of the website to display products similar to Complainant’s, imputes intent to attract Internet users for commercial gain, and finds bad faith per Policy ¶4(b)(iv).”); see also, Klabzuba Oil & Gas, Inc. v. LAKHPAT SINGH BHANDARI, FA1506001625750 (Forum July 17, 2015) (“Respondent uses the <klabzuba-oilgas.com> domain to engage in phishing, which means Respondent registered and uses the domain name in bad faith under Policy ¶4(a)(iii).”).
21. In addition, numerous UDRP panels have found that a failure to attempt to develop or use a domain name which contains a third party’s trademark is further evidence of bad faith registration pursuant to Policy ¶4(a)(iii). See Caravan Club v. Mrgsale, FA95314 (Forum Aug. 30, 2000) (finding that a respondent made no use of a domain name or its resolving website, and that such a failure to make an active use of the domain name permits an inference of registration and use in bad faith); and Morgan Stanley v. cui liyan, FA1206001449767, (Forum August 7, 2012) (stating “Respondents bad faith is further demonstrated by the lack of content associated with the <morganstanleywealthmanagement.net> domain name. The screenshots provided by Complainant show that when attempting to visit the <morganstanleywealthmanagement.net> domain name, the following language is displayed: ‘Sorry ‘www.morganstanleywealthmanagement.net’ does not exist or is not available.’ Thus the Panel finds that Respondent’s registration and non-use of the <morganstanleywealthmanagement.net> domain name are a product of bad faith under Policy ¶4(a)(iii)”). See also Tumblr, Inc. v. Viet Blogs, FA1401001539462 (Forum February 12, 2014) and Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (“[T]he examples [of bad faith] in Paragraph 4(b) are intended to be illustrative, rather than exclusive.”); see also Twentieth Century Fox Film Corp. v. Risser, FA 93761 (Forum May 18, 2000) (“The requirement in the ICANN Policy that a complainant prove that domain names are being used in bad faith does not require that it prove in every instance that a respondent is taking positive action. Use in bad faith can be inferred from the totality of the circumstances even when the registrant has done nothing more than register the names.”). Similar to the above-referenced cases, Respondent’s current failure to use the Domain Names (following its fraud and passing off activities) is evidence of bad faith registration and use of the Domain Names.
22. Finally, Respondent is engaged in typosquatting, and therefore has registered and is using the disputed Domain Names in bad faith. The use of a domain name that is a mere misspelling of a mark, likely to be a typo of an Internet user, is evidence of typosquatting and therefore evidence of bad faith registration and use. See Homer TLC, Inc. v. Artem Ponomarev, FA 1623825 (Forum July 20, 2015) (“Finally, under this head of the Policy, it is evident that the
<homededpot.com> domain name is an instance of typosquatting, which is the deliberate misspelling of the mark of another in a domain name, done to take advantage of common typing errors made by Internet users in entering into a web browser the name of an enterprise with which they would like to do business online. Typosquatting is independent evidence of bad faith in the registration and use of a domain name.”). In this case, the disputed Domain Names lnsights.network and Insighst.network differ from the INSIGHTS NETWORK mark by either replacing the initial letter “I” with the visually identical letter “l”, or by switching the last two letters of the “INSIGHTS” portion of the Mark, which are typos that an Internet user may be likely to make. Therefore, Respondent has engaged in typosquatting, which demonstrates that Respondent has registered and is using the disputed Domain Names in bad faith.
23. Respondent’s registration of the Domain Names also violates the Anticybersquatting Consumer Protection Act, 15 U.S.C. §43(d), et seq.
B. Respondent
Respondent failed to submit a Response in this proceeding.
(1) the domain names registered by Respondent are 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 names; and
(3) the domain names have been registered and are being used in bad faith.
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 Complainant prove the following three elements to obtain an order cancelling or transferring a domain name:
(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(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.”).
Preliminary Issue: Multiple Respondents
In the instant proceedings, Complainant claims the entities which control the domain names at issue are effectively controlled by the same person and/or entity, which is operating under several aliases. Paragraph 3(c) of the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”) provides a “complaint may relate to more than one domain name, provided that the domain names are registered by the same domain name holder.” This Panel concludes the domain names were registered by related parties because the <insighst.network> domain name was registered one day after the <lnsights.network> website was shut down for phishing activity. The <insighst.network> domain name was also briefly used for the same kind of phishing activity prior to the site being removed by the hosting party.
Complainant claims common law rights in the INSIGHTS NETWORK mark and does not currently hold a trademark registration. Policy ¶4(a)(i) does not require a complainant to own a trademark prior to a respondent’s registration if it can demonstrate established common law rights in the mark. See Microsoft Corporation v. Story Remix / Inofficial, FA 1734934 (Forum July 10, 2017) (finding that “The Policy does not require a complainant to own a registered trademark prior to a respondent’s registration if it can demonstrate established common law rights in the mark.”). To establish common law rights in a mark, a complainant generally must prove the mark has a secondary meaning. See Goodwin Procter LLP v. Amritpal Singh, FA 1736062 (Forum July 18, 2017) (holding that the complainant demonstrated its common law rights in the GOODWIN mark through evidence of “long time continuous use of the mark, significant related advertising expenditures, as well as other evidence of the mark’s having acquired secondary meaning.”). A TLD (whether a gTLD, sTLD or ccTLD) is disregarded under a Policy ¶4(a)(i) analysis because domain name syntax requires TLDs. Complainant’s website, consumer outreach and social media presence through Twitter, Telegram, and Medium, third-party media coverage pertaining to Complainant, as well as Complainant’s whitepaper regarding its INSIGHTS NETWORK goods and services (all of which have been distributed to potential consumers and partners worldwide) sufficiently demonstrates Complainant’s mark has acquired secondary meaning in the minds of consumers. Complainant has common law rights in the name for the purposes of Policy ¶4(a)(i).
Complainant claims Respondent’s <lnsights.network> and <insighst.network> domain names are confusingly similar to Complainant’s mark. One domain name replaces the first letter in the mark with a similar looking letter. The other one transposes the final two letters of the INSIGHTS portion of Complainant’s mark. Similar minor changes in a complainant mark have failed to sufficiently distinguish a domain name for the purposes of Policy ¶4(a)(i). See Intelius, Inc. v. Hyn, FA 703175 (Forum July 5, 2006) (finding the <intellus.com> domain name to be confusingly similar to the complainant’s INTELIUS mark because the domain name differed from the mark by one letter and was visually similar); see also Ashley Furniture Industries, Inc. v. domain admin / private registrations aktien gesellschaft, FA 1626253 (Forum July 29, 2015) (finding that “Respondent has simply transposed the letters ‘u’ and ‘r’ in the term ‘furniture’ to complete the [<ashleyfurnitrue.com>] domain name. The addition of a descriptive term, such as ‘furniture’, even if misspelled, does not negate a finding of confusing similarity under Policy ¶4(a)(i).”); see also TechSmith Corporation v. Cao Xiaoxia, FA 1732972 (Forum June 26, 2017) (“The addition of a period to a mark does not remove the result from the realm of confusing similarity.”). The infringing domain names are confusingly similar to the INSIGHTS NETWORK common law mark under Policy ¶4(a)(i).
The Panel finds Policy ¶4(a)(i) satisfied.
Complainant must first make a prima facie case Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶4(a)(ii). Then the burden shifts to Respondent to show it has rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“Under Policy ¶4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests”).
Complainant claims Respondent has no rights or legitimate interests in the <lnsights.network> and <insighst.network> domain names. Where a response is lacking, relevant information includes the WHOIS and any other assertions by a complainant regarding the nature of its relationship with a respondent. See Braun Corp. v. Loney, FA 699652 (Forum July 7, 2006) (concluding 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). The WHOIS identifies “Коршунов Максим Андреевич” as the registrant for the <lnsights.network> domain name, and “Aleksandr Dovbush / ico icn” as the registrant for the <insighst.network> domain name. No evidence exists to show Respondent has ever been legitimately known by the INSIGHTS NETWORK mark. See Navistar International Corporation v. N Rahmany, FA1505001620789 (Forum June 8, 2015) (finding that the respondent was not commonly known by the disputed domain name where the complainant had never authorized the respondent to incorporate its NAVISTAR mark in any domain name registration). Respondent has never been legitimately affiliated with Complainant, has never been known by the domain names prior to their registration, and Complainant has not given Respondent permission to use the mark in any manner. It seems clear Respondent is not commonly known by the <lnsights.network> and <insighst.network> domain names under Policy ¶4(c)(ii).
Complainant claims Respondent previously used the domain names to pass off as Complainant to phish for information from consumers via email. Phishing attempts demonstrate a lack of bona fide rights and legitimate interests in a domain name. See Blackstone TM L.L.C. v. Mita Irelant Ltd., FA 1314998 (Forum Apr. 30, 2010) (“The Panel finds that Respondent’s attempt to “phish” for users’ personal information is neither a bona fide offering of goods and services pursuant to Policy ¶4(c)(i) nor a legitimate noncommercial or fair use pursuant to Policy ¶4(c)(iii).”). Complainant provided a customer complaint, which confirmed the fraudulent use. Respondent used the domain name to phish for information, indicating Respondent had no bona fide rights and legitimate interests under Policy ¶¶4(c)(i) or (iii).
Complainant claims the disputed domain names currently resolve to a website that lacks any substantive content (because they have been shut down for fraud). Failure to make active use of a confusingly similar domain name is also evidence of a lack of bona fide offering of goods or services or a legitimate noncommercial or fair use. See Bloomberg L.P. v. SC Media Servs. & Info. SRL, FA 296583 (Forum Sept. 2, 2004) (“Respondent is wholly appropriating Complainant’s mark and is not using the <bloomberg.ro> domain name in connection with an active website. 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).”). Complainant provides screenshots of the resolving webpages, both of which contain error messages. Respondent currently fails to actively use the disputed domain names. This does 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).
The Panel finds Policy ¶4(a)(ii) satisfied.
Complainant claims Respondent previously used the domain names to pass off as Complainant. This phishing scheme traded off Complainant’s goodwill, which disrupted Complainant’s legitimate business to Respondent’s pecuniary benefit. Such actions constitute bad faith under Policy ¶¶4(b)(iii) & (iv). See Microsoft Corporation v. Terrence Green / Whois Agent / Whois Privacy Protection Service, Inc., FA 1661030 (Forum Apr. 4, 2016) (finding the Respondent’s use of the disputed domain names to send fraudulent emails supported a finding of bad faith registration and use under Policy ¶4(b)(iii)); see also Qatalyst Partners LP v. Devimore, FA 1393436 (Forum July 13, 2011) (finding that using the disputed domain name as an e-mail address to pass itself off as the complainant in a phishing scheme is evidence of bad faith registration and use). Complainant provided a complaint from a customer whom was targeted in Respondent’s fraudulent scheme. Respondent disrupts Complainant’s business and attempted to commercially benefit off Complainant’s mark in bad faith under Policy ¶¶4(b)(iii) & (iv).
Complainant claims Respondent currently inactively holds the domain names. Inactively holding a confusingly similar domain name constitutes evidence of bad faith registration and use under Policy ¶4(a)(iii). 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).”). Respondent inactively holds the <lnsights.network> and <insighst.network> domain names in bad faith.
The Panel finds Policy ¶4(a)(iii) satisfied.
Having established all three elements required under the ICANN Policy, the Panel concludes relief shall be GRANTED.
Accordingly, it is Ordered the <lnsights.network> and <insighst.network> domain names be TRANSFERRED from Respondent to Complainant.
Houston Putnam Lowry, Chartered Arbitrator, Panelist
Dated: Monday, April 9, 2018
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page