PortNordica Limited v. [Redacted]
Claim Number: FA1807001798592
Complainant is PortNordica Limited (“Complainant”), represented by Sarah Zanon of Principal, CapitalLegal, Australia. Respondent is [Redacted] (“Respondent”), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <portnordica.com>, registered with Wild West Domains, LLC.
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.
Kenneth L. Port as Panelist.
Complainant submitted a Complaint to the Forum electronically on July 25, 2018; the Forum received payment on July 25, 2018.
On July 27, 2018, Wild West Domains, LLC confirmed by e-mail to the Forum that the <portnordica.com> domain name is registered with Wild West Domains, LLC and that Respondent is the current registrant of the name. Wild West Domains, LLC has verified that Respondent is bound by the Wild West Domains, 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 August 2, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 22, 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@portnordica.com. Also on August 2, 2018, 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 14, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Kenneth L. Port 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, PortNordica Limited, develops and promotes investment products in Australia, including managed investment schemes and special purpose entities. Complaint markets and advertises its PORTNORDICA product and services at the <portnordica.com.au> domain name. Complainant also has common law rights in the PORTNORDICA mark. Respondent’s <portnordica.com> domain name is confusingly similar to Complainant’s domain name (<portnordica.com.au), except for an additional “.au” suffix.
Respondent lacks rights and legitimate interests in <portnordica.com> domain name. Respondent does not operate any business or offer any product or service using the trademark PORTNORDICA. Furthermore, the word Port Nordica does not comprise any part of Respondent’s name. Additionally, Respondent does not use the disputed domain name in connection with a bona fide offering of goods and services or for a legitimate noncommercial or fair use. Instead, Respondent registered the <portnordica.com> domain name to approach current and potential clients of Complainant to deceive them into making false investments.
Respondent registered and uses the <portnordica.com> domain name in bad faith. Respondent attempts to disrupt Complainant’s business and commercially benefit from user confusion by tricking Complainants customers into believing that their investments were being put into Complainant’s bank accounts, but the investments were to be deposited into bank accounts not owned by Complainant.
B. Respondent
Respondent failed to submit a Response in this proceeding. The <portnordica.com> domain name was created on February 14, 2018.
The Panel finds that the disputed domain name is confusingly similar with Complainant’s trademark; that Respondent has no rights or legitimate interest in or to the disputed domain name; and that Respondent has engaged in bad faith use and registration of the disputed domain name.
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 Panel finds that the disputed domain name, <portnordica.com>, is confusingly similar with Complainant’s valid and subsisting trademark, PORTNORDICA. Complainant has adequately plead its rights and interests in and to this common law trademark. Respondent arrives at the disputed domain name by merely dropping the country code “.au”. This is insufficient to distinguish the disputed domain name from Complainant’s trademark.
As such, the Panel finds that the disputed domain name is confusingly similar with Complainant’s trademark.
The Panel further finds that Respondent has no rights or legitimate interests in or to the disputed domain name. Respondent has no right, permission or license to register the disputed domain name. Respondent is not commonly known by the disputed domain name. Respondent does not use the disputed domain name in connection with a bona fide offering of goods and services or for a legitimate noncommercial or fair use. Instead, Respondent appears to have registered the disputed domain name to approach current and potential clients of Complainant to deceive them into making false investments.
As such, the Panel finds that Respondent has no rights or legitimate interests in or to the disputed domain name.
The Panel further finds that Respondent has engaged in bad faith use and registration of the disputed domain name. Complainant contends that while it was raising capital for a new investment in its subsidiary, PN Mortgage No. 6 Pty. Ltd., Respondent sent emails to investors in order to deceive them into making false investments using bank accounts unrelated to Complainant. Complainant’s contentions suggest Respondent was attempting to pass off as Complainant in order to phish. Using a confusingly similar domain name in furtherance of phishing may demonstrate bad faith under Policy ¶ 4(b)(iii) and/or (iv). See 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 per Policy ¶ 4(b)(iv)); see also 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)). Complainant provides copies of emails sent from an address associated with the disputed domain name to three of Complainant’s investors: Antony Perkins, Paul McPherson, and Tamas Szabo. See Amend. Compl. Annexures 5-7. Complainant claims Respondent’s email address is exactly the same as Complainant’s director’s email (excluding the “.au” suffix), and copies the exact form of Complainant’s emails. Id. Consequently, the Panel finds Respondent registered and used the disputed domain name in bad faith per Policy ¶ 4(b)(iii) and (iv).
The Panel also finds that, given the totality of the circumstances including this elaborate phishing scheme, Respondent had actual knowledge of Complainant’s prior rights and interests in this common law trademark.
Finally, this is a clear case of identity theft. As such, the personal information of Respondent should be redacted from this opinion.
In sum, the Panel finds that Respondent has engaged in bad faith use and registration of 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 <portnordica.com> domain name be TRANSFERRED from Respondent to Complainant.
Kenneth L. Port, Panelist
Dated: August 16, 2018
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