Troika Dialog Investment Company v. Michael Lafford
Claim Number: FA0608000779806
Complainant is Troika Dialog Investment Company (“Complainant”), represented by Lisa Rosenburgh, of Salans, 620 Fifth Avenue, New York, NY 10020. Respondent is Michael Lafford (“Respondent”), Mainst. 45, Rocklin, CA 95677.
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <troikadirect.net>, registered with Onlinenic, Inc.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Tyrus R. Atkinson, Jr., as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on August 16, 2006; the National Arbitration Forum received a hard copy of the Complaint on August 17, 2006.
On August 17, 2006, Onlinenic, Inc. confirmed by e-mail to the National Arbitration Forum that the <troikadirect.net> domain name is registered with Onlinenic, Inc. and that Respondent is the current registrant of the name. Onlinenic, Inc. has verified that Respondent is bound by the Onlinenic, Inc. registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy").
On August 17, 2006, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of September 6, 2006 by which Respondent could file a response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent's registration as technical, administrative and billing contacts, and to postmaster@troikadirect.net by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On September 14, 2006, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Tyrus R. Atkinson, Jr., 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." 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 <troikadirect.net> domain name is confusingly similar to Complainant’s TROIKA DIALOG mark.
2. Respondent does not have any rights or legitimate interests in the <troikadirect.net> domain name.
3. Respondent registered and used the <troikadirect.net> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Troika Dialog Investment Company, is a private
investment company in Russia with its core lines of business in securities
sales and trading, investment banking and asset management. In connection with its financial services,
Complainant holds a number of trademark registrations around the world,
including the TROIKA DIALOG mark registered with the United States Patent and
Trademark Office (“USPTO”) (Reg. No. 2,203,822 issued November 17, 1998).
Respondent registered the disputed domain name on April 8, 2004. According to an Exhibit provided in the Complaint, showing a printout of the website at <troikadirect.net>, the disputed domain name resolves to a website that contains Complainant’s logo, company name, and features an online login form that requests a username and password. Additionally, the resulting website features language that states, “This website is intended for authorized personal only. Please use the form below to log in.”
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 has established rights in the TROIKA DIALOG mark through registration of the mark with the USPTO. See Innomed Techs., Inc. v. DRP Servs., FA 221171 (Nat. Arb. Forum Feb. 18, 2004) (“Registration of the NASAL-AIRE mark with the USPTO establishes Complainant's rights in the mark.”); see also Men’s Wearhouse, Inc. v. Wick, FA 117861 (Nat. Arb. Forum Sept. 16, 2002) (“Under U.S. trademark law, registered marks hold a presumption that they are inherently distinctive [or] have acquired secondary meaning.”).
Complainant asserts that the <troikadirect.net> domain name is confusingly similar to its TROIKA DIALOG mark. The disputed domain name contains the dominant feature of Complainant’s mark, “TROIKA,” omits the term “dialogue” and adds the term “direct.” The Panel finds the disputed domain name to be confusingly similar to Complainant’s mark for the purposes of Policy ¶ 4(a)(i) because it merely removes the term “dialogue” from Complainant’s mark and adds the term “direct.” See WestJet Air Ctr., Inc. v. W. Jets LLC, FA 96882 (Nat. Arb. Forum Apr. 20, 2001) (finding that the <westjets.com> domain name is confusingly similar to the complainant’s mark, where the complainant holds the WEST JET AIR CENTER mark); see also The Neiman Marcus Group., Inc. v. Steele, FA 603448 (Nat. Arb. Forum Jan. 12, 2006) (finding the <neimanmarcusdirect.com> domain name to be confusingly similar to the complainant’s NEIMAN MARCUS mark).
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Pursuant to Policy ¶ 4(a)(ii), Complainant bears the initial burden of proof to make a prima facie showing that Respondent does not have rights or legitimate interests in the disputed domain name. Once such a showing is successfully made, the burden shifts to Respondent to affirmatively prove that it does have rights or legitimate interests in the disputed domain name. See G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum Oct. 1, 2002) (“Because Complainant’s Submission constitutes a prima facie case under the Policy, the burden effectively shifts to Respondent. Respondent’s failure to respond means that Respondent has not presented any circumstances that would promote its rights or legitimate interests in the subject domain name under Policy ¶ 4(a)(ii).”); see also Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (holding that, where the complainant has asserted that the respondent has no rights or legitimate interests with respect to the domain name, it is incumbent on the respondent to come forward with concrete evidence rebutting this assertion because this information is “uniquely within the knowledge and control of the respondent”). The Panel finds that Complainant has successfully made a prima facie showing that Respondent does not have rights or legitimate interests in the disputed domain name through its uncontested assertions and evidentiary submissions in the Complaint.
Respondent’s failure to submit a Response in this proceeding suggests that it lacks rights and legitimate interests in the disputed domain name. See Parfums Christian Dior v. QTR Corp., D2000-0023 (WIPO Mar. 9, 2000) (finding that by not submitting a response, the respondent has failed to invoke any circumstance which could demonstrate any rights or legitimate interests in the domain name); see also Pavillion Agency, Inc. v. Greenhouse Agency Ltd., D2000-1221 (WIPO Dec. 4, 2000) (finding that the respondents’ failure to respond can be construed as an admission that they have no legitimate interest in the domain names). The Panel, however, chooses to examine the record to determine if Respondent has rights or legitimate interests in any of the disputed domain name.
According to the WHOIS registry, the disputed domain name is
registered to Michael Lafford of Rocklin, California. Because there is no other evidence to suggest the contrary, the
Panel finds that Respondent is not known by the disputed domain name. See Am. W.
Airlines, Inc. v. Paik, FA 206396 (Nat.
Arb. Forum Dec. 22, 2003) (“Respondent has registered the domain name
under the name ‘Ilyoup Paik a/k/a David Sanders.’ Given the WHOIS domain name registration information, Respondent
is not commonly known by the [<awvacations.com>] domain name.”); see
also Ian Schrager Hotels, L.L.C. v. Taylor, FA 173369 (Nat. Arb. Forum Sept. 25, 2003) (finding that
without demonstrable evidence to support the assertion that a respondent is
commonly known by a domain name, the assertion must be rejected).
Furthermore, the disputed domain
name resolves to a website that contains Complainant’s logo and company
name and features an online login form that requests username and password
information. After viewing
Complainant’s submitted exhibits, it is apparent that Respondent is undertaking
a phishing scheme whereby it uses the confusingly similar domain name in
connection with Complainant’s logo and company name and an online form to
capture sensitive username and password information from Internet users
affiliated with Complainant. The Panel
finds that the use of a confusingly similar domain name to redirect Internet
users to an online username and password phishing scheme fails to meet any of
the requirements set forth in Policy ¶¶ 4(c)(i) or (iii). See Capital One Fin. Corp. v. Howel, FA
289304 (Nat. Arb. Forum Aug. 11, 2004) (finding that using a domain name to
redirect Internet users to a website that imitated the complainant’s credit application
website and attempted to fraudulently acquire personal information from the
complainant’s clients was not a bona fide offering of goods or services
or a legitimate noncommercial or fair use); HOPE worldwide, Ltd. v. Jin,
FA 320379 (Nat. Arb. Forum Nov. 11, 2004) (finding that a domain name that “is
confusingly similar to Complainant’s mark, redirects Internet users to a
website that imitates Complainant’s website, and is used to acquire personal
information from Complainant’s potential associates fraudulently” does not fall
within the parameters of Policy ¶¶ 4(c)(i) or (iii)). Cf. Capital One Fin. Corp. v. Howel, FA 289304 (Nat. Arb.
Forum Aug. 11, 2004) (defining “phishing” as “a practice that is intended to
defraud consumers into revealing personal and proprietary information”).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Complainant alleges that Complainant registered and used the disputed domain name in bad faith. The Panel agrees. The use of a confusingly similar domain name to redirect Internet users to a website that is crafted to obtain personal, identifying information such as usernames and passwords through the use of copied company logos and online forms constitutes bad faith pursuant to Policy ¶ 4(a)(iii). See Juno Online Servs., Inc. v. Nelson, FA 241972 (Nat. Arb. Forum Mar. 29, 2004) (“‘Phishing’ involves the use of e-mails, pop-ups or other methods to trick Internet users into revealing credit cards, passwords, social security numbers and other personal information to the ‘phishers’ who intend to use such information for fraudulent purposes.”); see also HOPE worldwide, Ltd. v. Jin, FA 320379 (Nat. Arb. Forum Nov. 11, 2004) (defining “phishing” as fooling “Internet users into sharing personal financial data so that identities can be stolen, fraudulent bills are run up, and spam e-mail is sent”).
The Panel finds that 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 <troikadirect.net> domain name be TRANSFERRED from Respondent to Complainant.
Tyrus R. Atkinson, Jr., Panelist
Dated: September 28, 2006
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