FMR LLC v. Tramani Prusha
Claim Number: FA1911001872855
Complainant is FMR LLC (“Complainant”), represented by Patrick J. Concannon of Nutter McClennen & Fish LLP, Massachusetts, United States. Respondent is Tramani Prusha (“Respondent”), Great Britain.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <fidelityinvest.cc>, registered with Gransy, s.r.o..
The undersigned certifies that he 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.
Eugene I. Low as Panelist.
Complainant submitted a Complaint to the Forum electronically on November 25, 2019; the Forum received payment on November 25, 2019.
On November 26, 2019, Gransy, s.r.o. confirmed by e-mail to the Forum that the <fidelityinvest.cc> domain name is registered with Gransy, s.r.o. and that Respondent is the current registrant of the name. Gransy, s.r.o. has verified that Respondent is bound by the Gransy, s.r.o. 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 November 27, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 17, 2019 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@fidelityinvest.cc. Also on November 27, 2019, 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 December 20, 2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Eugene I. Low 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.
The Panel notes that Complainant requests that the language of these administrative proceedings proceed in the English language pursuant to UDRP Rule 11(a). The Panel also notes that Registrar confirms that the language of the Registration Agreement is Czech and English. It is established practice to take UDRP Rules 10(b) and (c) into consideration for the purpose of determining the language of the proceeding to ensure fairness and justice to both parties. The Panel has considered the various relevant circumstances, including the language of the Registration Agreement in both Czech and English, the content of the website associated with Disputed Domain Name (which is in English), the absence of challenge by Respondent, etc. The Panel is satisfied that the Respondent is likely to be conversant and proficient in the English language, and that it is just and convenient for these proceedings to proceed in English.
A. Complainant
Complainant, FMR LLC, is in the business of investment accounts, money management, and financial analysis. Complainant has rights in the FIDELITY INVESTMENTS mark through its registration with the United States Patent and Trademark Office (e.g., Reg. No. 1,481,037, registered Mar. 15, 1988). Respondent’s <fidelityinvest.cc> domain name is confusingly similar to Complainant’s FIDELITY INVESTMENTS mark. Respondent incorporates the first element of Complainant’s mark, “FIDELITY,” while truncating the second element “INVESTMENTS” to create a shorthand version of Complainant’s mark used in the domain name and adds the “.cc” generic top-level domain.
Respondent lacks rights or legitimate interests in the <fidelityinvest.cc> domain name. Respondent is not licensed or authorized to use Complainant’s FIDELITY INVESTMENTS mark and is not commonly known by the disputed domain name. Additionally, Respondent doesn’t use the disputed domain for any bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent uses the disputed domain name to pass off as Complainant in order to offer competing services.
Respondent registered and used the <fidelityinvest.cc> domain name in bad faith as Respondent attempts to pass off as Complainant for commercial gain. Finally, Respondent had actual knowledge of Complainant’s rights in the FIDELITY INVESTMENT mark when it registered the <fidelityinvest.cc> domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
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 set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
The Panel finds in favor of Complainant.
Complainant has rights in the FIDELITY INVESTMENTS mark through its trade mark registrations, including those with the USPTO. Complainant also has rights over the FIDELITY INVESTMENTS mark through use. The Panel has no difficulty in finding that Respondent’s <fidelityinvest.cc> domain name is confusingly similar to Complainant’s FIDELITY INVESTMENTS mark. Registration of a domain name that contains an abbreviation or variation of a mark and a TLD does not distinguish the domain name from the mark per Policy ¶ 4(a)(i). Here, the Disputed Domain Name incorporates entirely the first element of Complainant’s mark, “FIDELITY,” while truncating the second element “INVESTMENTS” to “invest”, and adds a ccTLD “.cc”. Overall, the Panel concludes that Respondent’s domain name is confusingly similar to Complainant’s FIDELITY INVESTMENTS mark per Policy ¶ 4(a)(i).
The Panel also finds in favor of Complainant.
The Panel is satisfied that Complainant has established a prima facie case that Respondent lacks rights and legitimate interests in Disputed Domain Name, which Respondent fails to prove otherwise. Complainant asserts that Respondent is not commonly known by the disputed domain name nor has Respondent been given a license or consent to use the FIDELITY INVESTMENTS mark or register domain names using Complainant’s mark. The WHOIS information for the disputed domain name lists the registrant as “Tramani Prusha” and there is no other evidence to suggest that Respondent was authorized to use the FIDELITY INVESTMENTS mark or was commonly known by the disputed domain name.
Complainant further argues that Respondent fails to make a bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent’s <fidelityinvest.cc> domain name resolves to a webpage that prominently displays Complainant’s mark in an attempt to pass off as Complainant in order to offer competing services. Use of a disputed domain name to pass off as a complainant to offer competing services is not a bona fide offering of goods or services or legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii).
The Panel considers that Complainant has satisfied this element.
Complainant’s evidence shows that Respondent registered and uses the <fidelityinvest.cc> domain name in bad faith as Respondent disrupts Complainant’s business and attempts to pass off as Complainant for commercial gain. Here, Respondent’s domain name’s resolving webpage is displaying Complainant’s mark and other contents identical to or confusingly similar to Complainant’s official website. Clearly, Respondent has actual knowledge of Complainant’s rights in the FIDELITY INVESTMENT mark when registering and using the Disputed Domain Name. In the absence of any explanation by Respondent, the Panel is satisfied by Complainant’s arguments that Respondent has registered and uses the Disputed Domain Name in bad faith.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <fidelityinvest.cc> domain name be TRANSFERRED from Respondent to Complainant.
Eugene I. Low, Panelist
Dated: Dec 23, 2019
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