Securities Investor Protection Corporation v. Martin Chehotsky
Claim Number: FA1709001751046
Complainant is Securities Investor Protection Corporation (“Complainant”), represented by Christopher H. LaRosa of Securities Investor Protection Corporation, District of Columbia. Respondent is Martin Chehotsky (“Respondent”), Louisiana.
REGISTRAR AND DISPUTED DOMAIN NAME(s)
The domain name(s) at issue is/are <slpc.us>, 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.
Darryl C. Wilson, as Panelist.
Complainant submitted a Complaint to the Forum electronically on September 27, 2017; the Forum received payment on September 27, 2017.
On Sep 29, 2017, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <slpc.us> domain name(s) is/are registered with GoDaddy.com, LLC and that Respondent is the current registrant of the names. 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 October 2, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 23, 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@slpc.us. Also on October 2, 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 October 27, 2017, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Darryl C. Wilson, 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, the Securities Investor Protection Corporation (SIPC), is a non-profit membership corporation that administers a quasi-public fund established to provide relief to customer of failed securities broker-dealers placed in liquidation. Complainant was created by the United States Congress in 1970 and has been commonly known as the SIPC since that date. Complainant has rights in the mark based upon registration with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 2,081,146, registered July 22, 1997). Respondent’s <slpc.us> domain name is confusingly similar to the SIPC mark, as the domain name consists entirely of the mark, merely differing by changing the letter “i” in the mark to an “l,” and appending the country-code top-level domain (“ccTLD”) “.us.”
Respondent has no rights or legitimate interests in <slpc.us> as Respondent is not commonly known by the disputed domain name. Further, Respondent’s use of the disputed domain name does not amount to a bona fide offering of goods or services or a legitimate noncommercial or fair use. Rather, the domain name resolves to a parked website and is only used to provide an email address with which Respondent impersonates Complainant.
Respondent’s registration and use of the disputed domain is in bad faith under the Policy. Respondent is attempting to impersonate Complainant in emails, indicating Policy ¶ 4(b)(iii) and (iv) bad faith. Further, Respondent’s emails represent an attempt at phishing, independent evidence of bad faith registration and/or use.
B. Respondent
Respondent failed to submit a Response in this proceeding.
FINDINGS
Complainant is Securities Investor Protection Corporation of Washington, DC, USA. Complainant is the owner of domestic registrations for the mark SPIC, which it has continuously used since at least as early as 1997, in connection with its provision of services to customers of failed securities broker-dealers under liquidation.
Respondent is Martin Chehotsky of Lake Charles, LA, USA. Respondent’s registrar’s address is unspecified. The Panel notes that the <slpc.us> domain name was created on or about September 7, 2017.
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.”).
Complainant claims rights in the SIPC mark based upon registration of the mark with the USPTO (Reg. No. 2,081,146, registered July 22, 1997). Registration of a mark with the USPTO is sufficient to establish rights in that mark. See Home Depot Product Authority, LLC v. Samy Yosef / Express Transporting, FA 1738124 (Forum July 28, 2017) (finding that registration with the USPTO was sufficient to establish the complainant’s rights in the HOME DEPOT mark). The Panel here finds that Complainant’s registration of the SIPC mark with the USPTO is sufficient to establish rights in the mark under Policy ¶ 4(a)(i).
Complainant next claims Respondent’s <slpc.us> domain name is confusingly similar to the SIPC mark, as the domain name consists entirely of the mark, merely differing by changing the letter “i” in the mark to an “l,” and appending the “.us” ccTLD. Such changes do not distinguish a domain name from its included mark per 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 Farouk Systems, Inc. v. Jack King / SLB, FA 1618704 (Forum June 19, 2015) (finding, “The ccTLD “.us” designation is inconsequential to a Policy ¶ 4(a)(i) analysis.”). Complainant contends Respondent’s change of the “i" in the SIPC mark to an “l” creates a visually similar domain name which increases potential confusion. The Panel here finds that the <slpc.us> domain name is confusingly similar to the SIPC mark per Policy ¶ 4(a)(i).
Respondent raises no contentions with regards to Policy ¶ 4(a)(i).
Complainant has proven this element.
The Panel recognizes that Complainant must first make a prima facie case that 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 does have rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name). Complainant has met this burden.
Complainant argues that Respondent has no rights or legitimate interests in the <slpc.us> domain name, as Respondent is not commonly known by the disputed domain name. Where a response is lacking, WHOIS information can support a finding that the respondent is not commonly known by a disputed domain name. See Chevron Intellectual Property LLC v. Fred Wallace, FA1506001626022 (Forum July 27, 2015) (finding that the respondent was not commonly known by the <chevron-europe.com> domain name under Policy ¶ [4(c)(iii)], as the WHOIS information named “Fred Wallace” as registrant of the disputed domain name). In the instant case a response is lacking and the WHOIS information of record identifies Respondent as “Martin Chehotsky.” The Panel here finds that under Policy ¶ 4(c)(iii) Respondent has not been commonly known by the <slpc.us> domain name.
The Panel here further finds that there is nothing in the available evidence which indicates that Respondent has rights in a mark identical to the disputed domain name, which would serve to satisfy Policy ¶ 4(c)(i). See Pepsico, Inc. v. Becky, FA 117014 (Forum Sept. 3, 2002) (holding that because the respondent did not own any trademarks or service marks reflecting the <pepsicola.us> domain name, it had no rights or legitimate interests pursuant to Policy ¶ 4(c)(i)). Therefore Respondent has failed to satisfy Policy ¶ 4(c)(i).
Complainant argues Respondent’s lack of rights or legitimate interests in the <slpc.us> domain name is additionally demonstrated by its failure to use the name for a bona fide offering of goods or services or legitimate noncommercial or fair use. Rather, Respondent uses the disputed domain name as part of a fraudulent phishing scheme in which it impersonates Complainant in phishing emails it sends to investors. Use of a disputed domain name to pass off as an employee or executive of a complainant by means of an email address hosted at the disputed domain name is not a use indicative of rights or legitimate interests under Policy ¶¶ 4(c)(ii) or (iv). See Abbvie, Inc. v. James Bulow, FA 1701075 (Forum, Nov. 30, 2016) (finding Respondent’s use of the disputed domain name to pose as Complainant’s CEO by means of an email address at the confusingly similar domain name in an attempt to determine Complainant’s ability to process a transfer was neither a bona fide offering of good or services under Policy ¶ [4(c)(ii)], nor a legitimate noncommercial or fair use under Policy ¶ [4(c)(iv)]). Complainant provides printouts of emails sent from an email address associated with the disputed domain name purporting to be from Complainant and distributing an attachment. The Panel here finds that Respondent’s passing off activity indicates it lacks rights and legitimate interests in the disputed domain name per Policy ¶¶ 4(c)(ii) and (iv).
Respondent raises no contentions with regards to Policy ¶ 4(a)(ii).
As Respondent has not provided a response to this action, Respondent has failed to meet its burden regarding proof of any rights or legitimate interest in the disputed domain.
Complainant has proven this element.
Complainant contends that Respondent’s use of the <slpc.us> domain name to send phishing emails indicates the domain name was registered and is being used in bad faith. Use of a domain name to impersonate a complainant through the use of emails can be evidence of bad faith per Policy ¶¶ 4(b)(iii) and (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 Abbvie, Inc. v. James Bulow, FA 1701075 (Forum Nov. 30, 2016) (“Respondent uses the <abbuie.com> domain name to impersonate Complainant’s CEO. Such use is undeniably disruptive to Complainant’s business and demonstrates bad faith pursuant to Policy ¶ 4(b)(iii), and/or Policy ¶ 4(b)(iv)”). The Panel again notes evidence provided indicating that Respondent uses an email hosted at the disputed domain name to send fraudulent emails in which it attempts to pass off as Complainant. The Panel finds that such use is disruptive to Complainant’s business and/or causes consumer confusion and demonstrates Policy ¶¶ 4(b)(iii) and/or (iv) bad faith.
Complainant contends that Respondent’s phishing behavior demonstrates it registered or used the <slpc.us> domain name in bad faith. Phishing attempts by a respondent can be independent evidence of its bad faith per Policy ¶ 4(a)(iii). 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).”); see also SHUAA Capital psc v. Oba Junkie / shuaa capital psc, FA14009001581255 (Forum Oct. 29, 2014) (“The Panel finds that Respondent’s use of the domain name’s e-mail suffix for fraudulent purposes illustrates Policy ¶ 4(a)(iii) bad faith.”). Complainant provided evidence of Respondent’s phishing emails sent from the <slpc.us> domain name. The Panel here finds that Respondent registered and used the disputed domain name in bad faith.
Respondent raises no contentions with regards to Policy ¶ 4(a)(iii).
Complainant has proven this element.
DECISION
As Complainant has established all three elements required under the ICANN Policy, the Panel concludes that Complainant’s requested relief shall be GRANTED.
Accordingly, it is Ordered that the <slpc.us> domain name be TRANSFERRED from Respondent to Complainant.
Darryl C. Wilson, Panelist
Dated: November 10, 2017
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