Citadel LLC and its related entity KCG IP Holdings LLC v RACHID JMEL / Awais Siddiqui / TRENT ORWIN / ANASTASIIA CHIPYSHEVA / THE WORLD MARKETING GLOBAL LTD
Claim Number: FA1710001753574
Complainant is Citadel LLC and its related entity KCG IP Holdings LLC (“Complainant”), represented by Paul D. McGrady of Winston & Strawn, Illinois, USA. Respondent is RACHID JMEL / Awais Siddiqui / TRENT ORWIN / ANASTASIIA CHIPYSHEVA / THE WORLD MARKETING GLOBAL LTD (“Respondent”), Morocco.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <citidelltd.com>, <citidelltdscam.com>, and <citidelinvestmentappreviews.com>, registered with eNom, LLC, <citidelltd.co>, registered with NameCheap, Inc., and <citidelltd.org>, registered with 1&1 Internet SE.
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 October 12, 2017; the Forum received payment on October 13, 2017.
On October 12, 2017, NameCheap, Inc. confirmed by e-mail to the Forum that the <citidelltd.co> domain name is registered with NameCheap, Inc. and that Respondent is the current registrant of the name. On October 13, 2017, eNom, LLC confirmed by e-mail to the Forum that the <citidelltd.com>, <citidelltdscam.com>, and <citidelinvestmentappreviews.com> domain names are registered with eNom, LLC and that Respondent is the current registrant of the names. On October 15, 2017, 1&1 Internet SE confirmed by e-mail to the Forum that the <citidelltd.org> domain name is registered with 1&1 Internet SE and that Respondent is the current registrant of the name. eNom, LLC, NameCheap, Inc., and 1&1 Internet SE have verified that Respondent is bound by the eNom, LLC, NameCheap, Inc., and 1&1 Internet SE registration agreements and have 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 20, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 9, 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@citidelltd.com, postmaster@citidelltd.co, postmaster@citidelltdscam.com, postmaster@citidelltd.org, postmaster@citidelinvestmentappreviews.com. Also on October 20, 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 November 13, 2017, 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 that the domain names be transferred from Respondent to Complainant.
A. Complainant
Citadel LLC uses the CITADEL trademarks under license from its related entity KCG IP Holdings LLC (collectively the “CITADEL marks”). Citadel protects its investment in its brand by, among other things, registering certain trademarks in the U.S. with the United States Patent and Trademark Office (USPTO) and around the world:
· CITADEL (word mark), U.S. Trademark Reg. No. 3,213,943, registered February 27, 2007, with a first use date of August 31, 1994, for use in connection with “Financial services, namely, providing investment management services, investment consultation and advice, investment portfolio management services, investment brokerage services [, mutual fund investment services] and investment of funds for others”; and
· CITADEL (design mark), U.S. Trademark Reg. No. 2,812,459. Registered February 10, 2004, with a first use date of August 31, 1994, for use in connection with “Providing investment management services, investment consultation and advice, investment portfolio management services, investment brokerage services, [mutual fund investment services,] and investment of funds for others.”
Complainant has made extensive use of its marks by providing its services in the United States and around the world.
FACTUAL AND LEGAL GROUNDS
This Complaint is based on the following factual and legal grounds. Rule 3(b)(ix).
Complainant and its marks. Citadel was founded in 1990 and has since grown to be one of the world’s largest and most sophisticated alternative investment institutions. Citadel employs more than 1,250 professionals who are located in offices worldwide and it manages many billions of U.S. dollars in assets. Its investors include endowments, pension funds, foundations and other institutional investors, as well as high net worth individuals. Citadel is also a leading market maker, providing liquidity and trade execution to retail and institutional clients, and it is a leader in investment management technology. Citadel, through a related entity, is also the registry operator of the <.citadel> top level domain name.
Due to the extensive use of the CITADEL marks and the success of Complainant’s business, past panels have acknowledged that Complainant’s CITADEL mark has achieved a considerable degree of fame and notoriety. See Citadel LLC and its related entity, KCG IP Holdings, LLC v. Jones Steven / E-Millions Pty Ltd, FA1402001544104 (Forum Mar. 28, 2014); Citadel Investment Group v. Anthony N.Georgiuo, FA1482483 (Forum Mar. 4, 2013).
Respondent and its actions. Respondent registered all of the Offending Domains within one month: <citidelltd.com> and <citidelltdscam.com> on December 30, 2015; <citidelltd.org> on January 23, 2016; <citidelltd.co> on January 25, 2016; and <citidelinvestmentappreviews.com> on January 26, 2016. These registrations postdate the registrations of the CITADEL marks and Complainant’s extensive marketing of its goods and services under the CITADEL marks.
Respondent uses <citidelltd.co> to resolve to a website for “Citidel LTD Investment APP Review Is Citidel LTD Scam?;” <citidelinvestmentappreviews.com> to resolve to a website titled “Citidel Investment App Review;” and <citidelltdscam.com> to resolve to a website that states, “SORRY! If you are the owner of this website, please contact your hosting provider: webmaster@citidelltdscam.com.” Currently, <citidelltd.com> and <citidelltd.org> do not resolve to content.
Complainant has not given Respondent any license, permission, or authorization by which he could make use of any of its marks.
[a.] The Offending Domains are confusingly similar to the CITADEL marks.
Rule 3(b)(ix)(1); UDRP ¶4(a)(i).
The Offending Domains are confusingly similar to the CITADEL marks because they rely on a phonetically similar misspelling of the CITADEL marks. See American Airlines, Inc. v. John Zuccarini, (stating, regarding < amaricanairlines.com>, “this misspelling does not create a distinct mark and is confusingly similar with the Complainant’s marks.”); see also Charles Schwab & Co., Inc. v. Leonard Bogucki / Venta, FA1605001676852 (Forum June 24, 2016) (“The disputed domain name merely omits the “C” from the Complainant’s SCHWAB mark, so it is confusingly similar to the mark in the sense of the Policy.”); Twitch Interactive, Inc. v. zhang qin, FA1626511 (Forum Aug. 4, 2015) (“the relevant comparison then resolves to the trademark, TWITCH, with the term, ‘titch,’ which, as can be readily seen, merely removes the letter ‘w’ from the trademark. In spite of that omission the compared integers remain visually and aurally very similar and so Panel finds them to be confusingly similar for the purposes of the Policy.”). Indeed, the particular misspelling “Citidel” is pronounced nearly identically to Complainant’s CITADEL marks and therefore takes advantage of possible phonetic misspellings. See Campbell University, Incorporated v. Direct Privacy / Domain Name Proxy Service, Inc Privacy ID# 14038373, FA1706001734509 (“The disputed domain name <cambellstateuniversity.com> is identical to Complainant's registered CAMPBELL UNIVERSITY trademark, but for the omission of the space and the silent "p" in "Campbell," and the addition of the generic term "state" and the ".com" top-level domain. These alterations do not substantially diminish the similarity between the domain name and Complainant's mark.”); Campbell Univ., Inc. v. Domain Administrator, FA 1351706 (Forum Nov. 22, 2010) (finding <cambelluniversity.org> confusingly similar to CAMPBELL UNIVERSITY).
The Offending Domains add only the generic terms “ltd,” “investment,” “app,” and “review;” and the generic top-level domains (gTLD) <.com>. <.co>, and <.org> to the misspelling of Complainant’s CITADEL marks. “Ltd,” short for “limited,” is a term indicating a specific type of business entity. “Investments” are what Complainant provides for many of its customers in the finance industry, and “app” and “review” are terms related to the fraudulent scheme perpetrated by Respondent. See Annex 6. Past panels have found that such misspellings of a complainant’s mark do not negate the confusingly similar character of a respondent’s domain name pursuant to Policy ¶4(a)(i). See Discover Financial Services v. Repossessed by Go Daddy, FA1609001695345 (Forum October 27, 2016) (finding <discoverscards.com> and <discoverrcards.com> confusingly similar to the complainant’s DISCOVER trademark); Campbell University, Incorporated v. Direct Privacy / Domain Name Proxy Service, Inc Privacy ID# 14038373, FA1706001734509 (finding the disputed domain name <cambellstateuniversity.com> to be “identical to Complainant's registered CAMPBELL UNIVERSITY trademark, but for the omission of the space and the silent "p" in "Campbell," and the addition of the generic term "state" and the ".com" top-level domain.”).
Thus, the Offending Domains are confusingly similar to Complainant’s CITADEL marks.
[b.] Respondent lacks rights or legitimate interests in the Offending Domains.
Rule 3(b)(ix)(2); UDRP ¶¶4(a)(ii), 4(c).
Respondent lacks rights or legitimate interests in the Offending Domains. First, Respondent has never been commonly known by the Offending Domains or any variation of them, other than the infringing use noted here. Therefore, Respondent cannot establish rights or legitimate interests under UDRP ¶4(c)(ii). See Citigroup Inc. v. Horoshiy, Inc. a/k/a Horoshiy, FA0290633 (Forum Aug. 11, 2004) (finding that Respondent had not established rights or legitimate interests in the disputed domain name where there was no evidence that Respondent was commonly known by the disputed domain names); Charles Jourdan Holding AG v. AAIM, D2000-0403 (WIPO June 27, 2000) (finding no rights or legitimate interests where (1) respondent was not a licensee of complainant, (2) complainant’s prior rights in the domain name preceded respondent’s registration and (3) respondent was not commonly known by the disputed domain name). Rather, Respondent uses a privacy service or himself as “Rachid Jmel.” Therefore, Respondent does not have rights or legitimate interests in the Offending Domains under UDRP ¶4(c)(ii).
Nor does Respondent’s uses of the Offending Domains <citidelltd.co> to resolve to a website for “Citidel LTD Investment APP Review Is Citidel LTD Scam;” <citidelltdscam.com>to resolve to a website for “SORRY! If you are the owner of this website, please contact your hosting provider: webmaster@citidelltdscam.com;” and <citidelinvestmentappreviews.com> to resolve to a website titled “Citidel Investment App Review” qualify as a bona fide offering of goods and services under UDRP ¶4(c)(i) or establish rights through a legitimate noncommercial or fair use under UDRP ¶4(c)(iii). See Citadel LLC and its related entity, KCG IP Holdings LLC v. JOEL LESPINASSE, FA1412001593973 (Forum Jan. 8, 2015) (“[t]he Panel agrees that Respondent’s use of the <citadellefunding.com> domain name to promote services in competition with Complainant is not a bona fide offering of goods or services, or a legitimate noncommercial or fair use of the domain name.”); Ameritrade Holdings Corp. v. Polanski, FA102715 (Forum Jan. 11, 2002) (finding respondent’s use of the disputed domain name to redirect Internet users to a financial services website, which competed with the complainant, was not a bona fide offering of goods or services); Capital One Financial Corp. v. Johnson Whyte / Johnwhyte Concept, FA1708001742884 (Forum Aug. 24, 2017) (“The domain name addresses an inactively held page displaying only the message, “Sorry! If you are the owner of this website, please contact your hosting provider.” Respondent’s inactive use of the at-issue domain name shows 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).”).
Furthermore, Respondent’s passive holding of the Offending Domains <citidelltd.com> and <citidelltd.org> does not constitute a bona fide offering of goods or services or a legitimate noncommercial or fair use. 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).”); see also Discover Financial Services v. CS Squeri, FA 1510001641121 (Forum Nov. 16 2015) (finding that “failure to use a domain name cannot vest rights under Policy paragraphs 4(c)(i) or (iii) in the respondent [. . .] even though the Domain Name in this case is not identical to the DISCOVER trademark, because the associated generic terms in the Domain Name are commonly used in the business of credit card accounts”).
Finally, Complainant has not granted Respondent any license, permission, or authorization by which it could own or use any domain name registrations that are confusingly similar to any of Complainant’s marks. See Amazon.com, Inc. v. Rayaneh Net, FA0309000196217 (Forum Oct. 28, 2003) (finding no legitimate rights in the “amazoniran.com” domain name, in part, because the complainant did not grant the respondent a license to use the AMAZON.COM mark); Nokia Corp. v. Nokiagirls.com, D2000-0102 (WIPO Apr. 18, 2000) (finding absence of license permitting the respondent to use the complainant’s trademark in domain name evidence of the respondent’s illegitimate interests).
Therefore, Respondent lacks rights or legitimate interests in the Offending Domains.
[c.] The Offending Domains were registered and are being used in bad faith.
Rule 3(b)(ix)(3); UDRP ¶4(a)(iii); UDRP ¶4(b).
As the facts above establish, Respondent registered and uses the Offending Domains in bad faith under UDRP ¶¶4(a)(iii) and 4(b). That Respondent registered domain names incorporating the intentional misspelling of the trademark of a large, well-known financial services company with many trademark registrations in the U.S., and around the world is alone sufficient to infer bad faith under UDRP ¶4(a)(iii). See Citadel Investment Group L.L.C. and its related entity, KCG IP Holdings, LLC v. Anthony N.Georgiuo a/k/a Anthony Georgiou, FA1301001482483 (Forum Mar. 4, 2013) (“[D]ue to the fame of Complainant’s [CITADEL] mark, Respondent had actual knowledge of the mark and Complainant’s rights. Thus, the Panel holds that Respondent registered the disputed domain name in bad faith under Policy ¶4(a)(iii).”). Further, the registration and use of the Offending Domains have prevented Complainant from reflecting its marks in the domain space, which also evidences bad faith under UDRP ¶4(b)(ii).
Moreover, the registration of a confusingly similar domain to Complainant’s CITADEL marks in order to promote and validate fraudulent investment software meant to compete with Complainant evidences Respondent’s primary purpose was to disrupt the business of a competitor in bad faith under UDRP ¶4(b)(iii). See Citadel LLC and its related entity, KCG IP Holdings LLC v. JOEL LESPINASSE, FA1412001593973 (Forum Jan. 8, 2015) (“Complainant asserts that the <citadellefunding.com> domain name resolves to a website offering services in competition with Complainant, which disrupts Complainant’s business in violation of Policy ¶4(b)(iii). The Panel agrees and finds that Respondent has engaged in bad faith under Policy ¶4(b)(iii).”); The One Group LLC v. GOUVERNEUR INC. / Manon Goudreau, FA1208001460010 (Forum Oct. 17, 2012) (finding registration and use of disputed domains with complainant’s trademarks along with the generic and descriptive terms indicated that respondent registered the disputed domains to disrupt complainant’s business, especially since complainant and respondent were competitors).
Finally, Respondent registered the Offending Domains citidelltd.com; citidelinvestmentappreviews.com, and citidelltd.org using privacy services, and in doing so withheld identifying information until the initiation of the instant UDRP proceedings. When a privacy service is used, as it was here, to prevent well-intended consumers from knowing that they are being defrauded, such use of a privacy service supports findings of bad faith registration and use. See eBay Inc. v. eBay Motors, FA1705001731822 (Forum June 26, 2017); see also Sermo, Inc. v. CatalystMD, LLC, D2008-0647 (WIPO July 2, 2008) (stating that use of privacy shield can be “treated as evidence of bad faith . . . when serial registrants use privacy shields to mask each registrant’s actual date of registration”); Bank of America Corporation v. Domain Admin / Whois protection, this company does not own this domain name s.r.o., FA1704001727047 (Forum May 15, 2017) (“Respondent’s use of a privacy service to conceal its identity is further evidence of bad faith.”); United States Postal Service v. PROXY PROTECTION LLC, FA1612001709298 (Forum March 7, 2017) (finding bad faith where “Respondent has utilized a privacy shield in a manner which materially adversely affects or obscures the facts of this proceeding.”).
Therefore, Respondent registered and uses the Offending Domains in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding. However, Respondent submitted a couple of emails, which read:
Dear
Jonathan J
Regarding my domain name citidelinvestmentappreviews.com.
this website was created as i was reviewing citidelltd.com
website.
Basically citidelltd.com created a
trading software and listed it on a affiliate network. So i created a review
site. i did not know citadel even existed, i thought the person who created citidelltd.com would of done research about
this. I have since removed my review site and i apologize to citadel lcc for
any inconvenience and i agree to transfer my domain name to citadel lcc
Regards Trent
The next email read:
Hi
This is what happened Basically citidelltd.com
created a trading software and listed it on a affiliate network. So i created a
review site on which i made no profits from. Please excuse me i did not know
citadel even existed i did not create the citidelltd.com
website i was just a affiliate for this offer, I have since removed this
review site and i apologize for any inconvenience and i agree to transfer my
domain name to citadel lcc
Regards
Trent
The third email reads:
I Don't need that Domain [citadeltd.org]. You can keep it.
Thanks
The fourth email concerns citidelltd.co and reads:
Hello
What they want?
The fifth email reads:
Hello Jonathan J
Received your Letter Regarding a Domain Name citidelltd.org Which Is already expired on 01/23/2017 at 1and1 But I Don't Know how it's still Registered on My Name. the Requested Domain Not even in my 1and1 Account Maybe Its 1&1 Mistake. I have not received any Complain on my email.
Waiting for your Reply
(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.
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 controlling 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 that a “complaint may relate to more than one domain name, provided that the domain names are registered by the same domain name holder.”
Complainant claims the “purposeful misspelling of Complainant’s CITADEL trademark is common to all five domain names,” despite identifying four different registrants. The domain names were all registered within one month, some within a few days, of each other. The five domain names were used together to promote a “fraudulent and infringing trading software called the ‘Citadel Investment App.’” The Panel concludes the four registrants are the same entity (or controlled by the same entity) and there is a single Respondent in this matter.
Preliminary Issue: Consent to transfer
Respondent appears to have consented to transfer the <citidelinvestmentappreviews.com>, <citidelltd.com> and <citadeltd.org> domain names to Complainant. However, the two relevant registrars placed a hold on Respondent’s accounts once this proceeding was commenced. Therefore, Respondent cannot transfer the disputed domain names while this proceeding is still pending. As a result, the Panel may find that in a circumstance where Respondent has not contested the transfer of the disputed domain names but instead agrees to transfer ALL of the domain names in question to Complainant, to forego the traditional UDRP analysis and order an immediate transfer of the domain names. See Boehringer Ingelheim Int’l GmbH v. Modern Ltd. – Cayman Web Dev., FA 133625 (Forum Jan. 9, 2003) (transferring the domain name registration where the respondent stipulated to the transfer); see also Malev Hungarian Airlines, Ltd. v. Vertical Axis Inc., FA 212653 (Forum Jan. 13, 2004) (“In this case, the parties have both asked for the domain name to be transferred to the Complainant . . . Since the requests of the parties in this case are identical, the Panel has no scope to do anything other than to recognize the common request, and it has no mandate to make findings of fact or of compliance (or not) with the Policy.”); see also Disney Enters., Inc. v. Morales, FA 475191 (Forum June 24, 2005) (“[U]nder such circumstances, where Respondent has agreed to comply with Complainant’s request, the Panel felt it to be expedient and judicial to forego the traditional UDRP analysis and order the transfer of the domain names.”). Respondent has not agreed to a transfer of all of the domain names.
The “consent-to-transfer” approach is but one way for cybersquatters to avoid adverse findings against them. In Graebel Van Lines, Inc. v. Tex. Int’l Prop. Assocs., FA 1195954 (Forum July 17, 2008), the panel stated that:
Respondent has admitted in his response to the complaint of Complainant that it is ready to offer the transfer without inviting the decision of the Panel in accordance with the Policy. However, in the facts of this case, the Panel is of the view that the transfer of the disputed domain name deserves to be along with the findings in accordance with the Policy.
Therefore, the Panel decides it would like to analyze the case under the elements of the UDRP.
Complainant is a global provider of financial and investment-related goods and services. Complainant uses the CITADEL mark in conjunction with its business practices. Complainant registered the CITADEL mark with United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 3,213,943, registered Feb. 27, 2007). Registration with a governmental national trademark agency (such as the USPTO), is sufficient to prove Policy ¶4(a)(i) rights in a mark even if Respondent is located in another country. Liberty Global Logistics, LLC v. damilola emmanuel / tovary services limited, FA 1738536 (Forum Aug. 4, 2017) (“Registration of a mark with the USPTO sufficiently establishes the required rights in the mark for purposes of the Policy.”). Complainant has rights in the CITADEL mark.
Complainant claims Respondent’s <citidelltd.com>, <citidelltd.co>, <citidelltdscam.com>, <citidelltd.org>, and <citidelinvestmentappreviews.com> are confusingly similar to Complainant’s CITIDEL mark because they incorporate the mark in its entirety and add a gTLD (“.co,” “.com,” or “.org.”). A TLD (whether a gTLD, sTLD or ccTLD) is disregarded under a Policy ¶4(a)(i) analysis because domain name syntax requires TLDs. Gardline Surveys Ltd. v. Domain Fin. Ltd., FA 153545 (Forum May 27, 2003). The disputed domain names are confusingly similar because the <citidelltd.co>, <citidelltdscam.com>, <citidelltd.com>, and <citidelltd.org> domain names add an extra “L” to “Citadel,” and the generic terms “td” or “scam,” and <citidelinvestmentappreviews.com> merely adds the generic terms “investment,” “app,” and “previews.” A disputed domain name which contains complainant’s entire mark and differs only by the addition of a generic or descriptive phrase is confusingly similar to complainant’s mark. See Microsoft Corporation v. Thong Tran Thanh, FA 1653187 (Forum Jan. 21, 2016). The emails sent to the Forum suggest Respondent intended the disputed domain names to be confusingly similar to Complainant’s mark. The Panel must conclude minor changes Respondent made to Complainant’s CITADEL mark to create <citidelltd.com>, <citidelltd.co>, <citidelltdscam.com>, <citidelltd.org>, and <citidelinvestmentappreviews.com> are not sufficient to distinguish the disputed domain names from Complainant’s mark.
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 names under Policy ¶4(a)(ii). Then the burden shifts to Respondent to show it has 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); see also AOL LLC v. Gerberg, FA 780200 (Forum Sept. 25, 2006) (“Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.”).
Complainant claims Respondent does not have rights or legitimate interests in <citidelltd.com>, <citidelltd.co>, <citidelltdscam.com>, <citidelltd.org>, and <citidelinvestmentappreviews.com>. Absent information in the record to the contrary, the WHOIS information and common sense allow the Panel to decide Respondent is not commonly known by the disputed domain name. The current WHOIS information associated with these domain names identifies Respondent as “ANASTASIIA CHIPYSHEVA” of “THE WORLD MARKETING GLOBAL LTD” for <citidelltd.com>, “Rachid Jmel” for <citidelltd.co> and <citidelltdscam.com>, “Awais Siddiqui” for <citidelltd.org>, and “TRENT ORWIN” for <citidelinvestmentappreviews.com>. The domain names were registered using a WHOIS privacy service. A respondent is not commonly known by a disputed domain name where there is no evidence in the record, including the WHOIS information, suggesting that the respondent was commonly known by the disputed domain name. See Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Forum July 17, 2006). There is no obvious relationship between any of these names and the disputed domain names. Therefore, when “nothing in [Respondent’s] WHOIS information implies that [Respondent] is ‘commonly known by’ the disputed domain name,” the Panel may determine that Respondent is not commonly known by <citidelltd.com>, <citidelltd.co>, <citidelltdscam.com>, <citidelltd.org>, and <citidelinvestmentappreviews.com>. Tercent Inc. v. Lee Yi, FA 139720 (Forum Feb. 10, 2003). This Panel finds Respondent is not commonly known by the disputed domain names.
Complainant has not authorized or licensed Respondent to use the CITADEL mark in any regard, nor is Respondent affiliated with Complainant. Respondent has not made a bona fide offering of goods or services, or a legitimate non-commercial or fair use of the domain. Respondent’s <citidelltd.com>, <citidelltdscam.com>, and <citidelltd.org> resolve to inactive websites with no demonstrable preparations for use. The respondent has no rights or legitimate interests in a domain name under either Policy ¶4(c)(i) or Policy ¶4(c)(iii) where it fails to make any active use of the domain name. See George Weston Bakeries Inc. v. McBroom, FA 933276 (Forum Apr. 25, 2007).
Respondent’s <citidelltd.co> and <citidelinvestmentappreviews.com> resolve to websites purporting to offer reviews of the illegitimate, competing “Citadel Investment App” software. The “use of a domain to sell products and/or services that compete directly with a complainant’s business does not constitute 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).” General Motors LLC v. MIKE LEE, FA 1659965 (Forum Mar. 10, 2016). Respondent lacks legitimate rights and interests in <citidelltd.com>, <citidelltd.co>, <citidelltdscam.com>, <citidelltd.org>, and <citidelinvestmentappreviews.com> pursuant to Policy ¶¶4(c)(i) and (iii).
Furthermore, Respondent has registered the disputed domain names using a WHOIS privacy service. That means Respondent has done nothing to publicly associate itself with the disputed domain names. Therefore, Respondent has not acquired any rights by virtue of registering the disputed domain names.
The Panel finds Policy ¶4(a)(ii) satisfied.
Complainant claims Respondent registered and is using <citidelltd.com>, <citidelltd.co>, <citidelltdscam.com>, <citidelltd.org>, and <citidelinvestmentappreviews.com> in bad faith. Complainant claims the disputed domain names disrupt Complainant’s business by promoting fraudulent and competing investment software. Appropriating a complainant’s registered mark in a disputed domain name used to directly compete with the complainant’s business is evidence of bad faith registration and use. See DatingDirect.com Ltd. v. Aston, FA 593977 (Forum Dec. 28, 2005) (“Respondent is appropriating Complainant’s mark to divert Complainant’s customers to Respondent’s competing business. The Panel finds this diversion is evidence of bad faith registration and use pursuant to Policy ¶4(b)(iii).”); Disney Enters., Inc. v. Noel, FA 198805 (Forum Nov. 11, 2003) (“Respondent registered a domain name confusingly similar to Complainant's mark to divert Internet users to a competitor's website. It is a reasonable inference that Respondent's purpose of registration and use was to either disrupt or create confusion for Complainant's business in bad faith pursuant to Policy ¶¶4(b)(iii) [and] (iv).”). Respondent registered and is using <citidelltd.com>, <citidelltd.co>, <citidelltdscam.com>, <citidelltd.org>, and <citidelinvestmentappreviews.com> in bad faith under the Policy.
Complainant claims Respondent registered <citidelltd.com>, <citidelltd.co>, <citidelltdscam.com>, <citidelltd.org>, and <citidelinvestmentappreviews.com> with actual knowledge of Complainant and its rights to the CITADEL mark. In light of the fame and notoriety of Complainant's CITADEL mark and the use of the <citidelltd.co> and <citidelinvestmentappreviews.com> domain names, it is inconceivable that Respondent could have registered the <citidelltd.co> and <citidelinvestmentappreviews.com> disputed domain names without actual knowledge of Complainant's rights in the mark. See Victoria’s Secret Stores Brand Mgmt., Inc. v. Michael Bach, FA 1426668 (Forum March 2, 2012) (“Although Complainant has not submitted evidence indicating actual knowledge by Respondent of its rights in the trademark, the Panel finds that, due to the fame of Complainant’s [VICTORIA’S SECRET] mark, Respondent had actual notice at the time of the domain name registration and therefore registered the domain name in bad faith under Policy ¶4(a)(iii).”). This means Respondent also had actual knowledge of Complainant’s mark when Respondent registered the other domain names, <citidelltd.com>, <citidelltd.co>, <citidelltdscam.com>, <citidelltd.org>. The Panel must find bad faith use registration and use when Respondent registered <citidelltd.com>, <citidelltd.co>, <citidelltdscam.com>, <citidelltd.org>, and <citidelinvestmentappreviews.com>. Deep Foods, Inc. v. Jamruke, LLC, FA 648190 (Forum Apr. 10, 2006).
Respondent registered all of the disputed domain names using a WHOIS privacy service. In the commercial context, this gives rise to a rebuttable presumption Respondent registered and uses the domain names in bad faith. Respondent has done nothing to rebut that presumption. The Panel is willing to find bad faith on this ground alone.
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 <citidelltd.com>, <citidelltd.co>, <citidelltdscam.com>, <citidelltd.org>, and <citidelinvestmentappreviews.com> domain names be TRANSFERRED from Respondent to Complainant.
Houston Putnam Lowry, Chartered Arbitrator, Panelist
Dated: Tuesday, November 21, 2017
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