Cerberus Capital Management, L.P. v SETH P. PLATTUS / Cerberus Capital Management
Claim Number: FA1707001741323
Complainant is Cerberus Capital Management, L.P. (“Complainant”), represented by Scott Kareff of Schulte Roth & Zabel LLP, New York, USA. Respondent is SETH P. PLATTUS / Cerberus Capital Management (“Respondent”), Pennsylvania, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <cerberusacapital.com>, registered with Google 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.
Paul M. DeCicco, as Panelist.
Complainant submitted a Complaint to the Forum electronically on July 24, 2017; the Forum received payment on July 25, 2017.
On July 25, 2017, Google Inc. confirmed by e-mail to the Forum that the <cerberusacapital.com> domain name is registered with Google Inc. and that Respondent is the current registrant of the name. Google Inc. has verified that Respondent is bound by the Google 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 July 28, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 17, 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@cerberusacapital.com. Also on July 28, 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 August 22, 2017, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Paul M. DeCicco 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 contends as follows:
Complainant, Cerberus Capital Management, L.P., is an investment management firm. In connection with this business, Complainant uses the CERBERUS and CERBERUS CAPITAL MANAGEMENT, L.P. marks to promote its goods and services.
Complainant has rights in the CERBERUS marks based upon registration with the United States Patent and Trademark Office (“USPTO”) (CERBERUS—Reg. No. 3,208,822, registered Feb. 13, 2007; CERBERUS CAPITAL MANAGEMENT, L.P.—Reg. No. 3,208,821, registered Feb. 13, 2007).
Respondent’s <cerberusacapital.com> domain name is confusingly similar as it removes the phrase “Management, L.P.” from the CERBERUS CAPITAL MANAGEMENT, L.P. mark, adds a letter “a,” and appends the generic top-level-domain (“gTLD”) “.com” to Complainant’s otherwise fully incorporated mark.
Respondent lacks rights and legitimate interests in the disputed domain name. Respondent is not commonly known by the <cerberusacapital.com> domain name, nor has Complainant authorized Respondent to use the CERBERUS family of marks. Further, Respondent failed to use <cerberusacapital.com> in connection with a bona fide offer of goods and services or for a legitimate noncommercial or otherwise fair use. Instead, Respondent diverts Internet users otherwise seeking Complainant and uses the domain name in an email address to phish for personal information.
Respondent registered and uses <cerberusacapital.com> domain name in bad faith. By using the confusingly similar domain name in an email address Respondent attempts to pass itself off as an employee of Complainant so that it might phish for personal information for Respondent’s commercial gain. Respondent utilizes a domain name proxy service. Respondent had actual knowledge of Complainant’s rights in the CERBERUS family of marks.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns a USPTO trademark registration for its CERBERUS CAPITAL MANAGEMENT L.P.mark.
Respondent registered the at-issue domain name subsequent to Complainant’s acquisition of rights in the CERBERUS CAPITAL MANAGEMENT L.P. mark.
Respondent is not authorized to use Complainant’s trademark.
Respondent uses an email address at the <cerberusacapital.com> domain name in an attempt to phish for personal information.
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(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.”).
The at-issue domain name is confusingly similar to a trademark in which Complainant has rights.
Complainant’s registration of the CERBERUS CAPITAL MANAGEMENT, L.P. mark and related marks with the USPTO establishes its rights in a mark under Policy ¶ 4(a)(i). See Humor Rainbow, Inc. v. James Lee, FA 1626154 (Forum Aug. 11, 2015) (stating, “There exists an overwhelming consensus amongst UDRP panels that USPTO registrations are sufficient in demonstrating a complainant’s rights under Policy ¶ 4(a)(i) and its vested interests in a mark.”).
Respondent’s <cerberusacapital.com> domain name contains a significant portion of Complainant’s CERBERUS CAPITAL MANAGEMENT, L.P. mark less its spaces, with the letter “a” inserted, and the top level domain name “.com” added to complete the domain name. The exclusion of the generic terms “management” and “L.P.” does nothing to differentiate Respondent’s domain name from Complainant’s trademark; nor does the addition of the single letter “a”. Likewise, concluding the domain name with the top level domain name “.com” is immaterial to Policy ¶ 4(a)(i) analysis, as is the removal of the trademark’s spaces. Therefore, the Panel finds that Respondent’s domain name is confusingly similar to Complainant’s CERBERUS CAPITAL MANAGEMENT mark pursuant to Policy ¶ 4(a)(i). See OpenTable, Inc. v. Above.com Domain Privacy, FA 1626187 (Forum Aug. 10, 2015 (“Respondent’s <oipentable.com> domain name is confusingly similar to the OPENTABLE mark under Policy ¶ 4(a)(i) because the disputed domain merely adds the letter ‘i’ . . . ”); see also The Pros Closet, Inc. v. Above.com Domain Privacy, FA 1616518 (Forum June 3, 2015) (finding confusing similarity where the <proscloset.com> domain name merely omitted the first term (“the”) from Complainant’s THE PROS CLOSET mark, eliminated spacing between words, and added the “.com” gTLD.); see also, Health Republic Insurance Company v. Gustavo Winchester, FA 1622089 (Forum July 7, 2015) (finding, “Domain name syntax prohibits spaces. Therefore, omitted spacing . . . must be ignored when performing a Policy ¶4(a)(i) analysis.”); 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).
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. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006). Since Respondent failed to respond, absent evidence of Policy ¶4(c) circumstances Complainant’s prima facie showing acts conclusively.
Respondent lacks both rights and legitimate interests in respect of the at-issue domain name. Respondent is not authorized to use Complainant’s trademark in any capacity and, as discussed below, there are no Policy ¶4(c) circumstances from which the Panel might find that Respondent has rights or interests in respect of the at-issue domain name.
WHOIS information for the at-issue domain name lists “Seth P. Plattus” of “Cerberus Capital Management” as the domain name’s registrant and there is nothing in the record that corroborates the suggestion that Respondent is commonly known by the <cerberusacapital.com> domain name. Therefore, the Panel finds that Respondent is not commonly known by the at-issue domain name pursuant to Policy ¶ 4(c)(ii). See Google Inc. v. S S / Google International, FA1506001625742 (Forum Aug. 4, 2015) (“Respondent did identify itself as ‘Google International’ in connection with its registration of the Disputed Domain Name, and this is reflected in the WHOIS information. However, Respondent has not provided affirmative evidence from which the Panel can conclude that Respondent was commonly known by the Disputed Domain Name before Respondent’s registration thereof.”)
As also discussed below regarding bad faith, Respondent uses the <cerberusacapital.com> domain name in an email address so that it may pass itself off as Complainant to phish for personal information. Using the domain name 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 under Policy ¶ 4(c)(iii). See Morgan Stanley v. Zhange Sheng Xu / Zhang Sheng Xu, FA1501001600534 (Forum Feb. 26, 2015) (“The Panel agrees that the respondent’s apparent phishing attempt provides further indication that the respondent lacks any rights or legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii).”); see also, Mortgage Research Center LLC v. Miranda, FA 993017 (Forum July 9, 2007) (“Because respondent in this case is also attempting to pass itself off as 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).”).
Given the foregoing, Complainant satisfies its initial burden under Policy ¶4(a)(ii) and conclusively demonstrates Respondent’s lack of rights and lack of interests in respect of the at-issue domain name.
The at‑issue domain name was registered and is being used in bad faith. As discussed below, circumstance are present which lead the Panel to conclude that Respondent acted in bad faith pursuant to paragraph 4(a)(iii) of the Policy.
Respondent uses the at-issue domain name as part of an email address to pose as an employee of Complainant. Respondent engages its <cerberusacapital.com> based email to phish for personal information. To wit, Respondent sent at least one individual email claiming to offer such individual a job with Complainant. The email went on to request personal information from the individual. Use of the domain name in this manner is disruptive to Complainant’s business and demonstrates bad faith per Policy ¶ 4(b)(iii). In fact, Respondent’s phishing scheme is, in and of itself, evidence of Respondent’s bad faith registration and use of <cerberusacapital.com> within the meaning of Policy ¶ 4(a)(iii). See Emdeon Business Services, LLC v. HR Emdeon Careers, FA1507001629459 (Forum Aug. 14, 2015) (finding that the respondent had engaged in an email phishing scheme indicating bad faith under Policy ¶ 4(a)(iii), where respondent was using the disputed domain name to send emails to internet users and advising them that they had been selected for a job interview with the complainant and was persuading the users to disclose personal information in the process).
Additionally, Complainant’s CERBERUS marks are well-known in the financial marketplace. In light of such notoriety, as well as Respondent’s overt attempt to use the at-issue domain name to pass itself off as Complainant via <cerberusacapital.com> email, there is no doubt that Respondent was well aware of Complainant’s marks when it registered and used its confusingly similar domain name. Importantly, it follows that Respondent registered and used the <cerberusacapital.com> domain name to inappropriately capitalize on Complainant’s goodwill, rather than for some benign reason. Respondent’s registration of a domain name with knowledge of another’s rights therein, in itself, indicates bad faith under Policy ¶4(a)(iii). See Minicards Vennootschap Onder FIrma Amsterdam v. Moscow Studios, FA 1031703 (Forum Sept. 5, 2007) (holding that respondent registered a domain name in bad faith under Policy ¶ 4(a)(iii) after concluding that respondent "actual knowledge of Complainant's mark when registering the disputed domain name").
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <cerberusacapital.com> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: August 22, 2017
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