Blackstone TM L.L.C. v. Artyom I Kichin / Private person
Claim Number: FA2003001888648
Complainant is Blackstone TM L.L.C. (“Complainant”), represented by Eric J. Shimanoff of Cowan, Liebowitz & Latman, P.C., United States. Respondent is Artyom I Kichin / Private person (“Respondent”), Russia.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <blackstonesweb.com> (‘the Domain Name’), registered with Regtime Ltd..
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.
<<Dawn Osborne>> as Panelist.
Complainant submitted a Complaint to the Forum electronically on March 17, 2020; the Forum received payment on March 17, 2020.
On April 2, 2020, Regtime Ltd. confirmed by e-mail to the Forum that the <blackstonesweb.com> domain name is registered with Regtime Ltd. and that Respondent is the current registrant of the name. Regtime Ltd. has verified that Respondent is bound by the Regtime Ltd. 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 April 2, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 22, 2020 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@blackstonesweb.com. Also on April 2, 2020, 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 April 28, 2020 pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Dawn Osborne 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
The Complainant’s contentions can be summarised as follows:
The Complainant is the owner of the trade mark BLACKSTONE, registered, inter alia, in the USA for financial services with first use recorded as 1990.
The Domain Name registered in 2019 is confusingly similar to the Complainant’s trade mark adding only an additional letter ‘s’, the generic word ‘web’ and the gTLD ‘.com’ which does not prevent said confusing similarity.
The Respondent does not have rights or a legitimate interest in the Domain Name, is not commonly known by it and has not been authorised by the Complainant.
For several months, Respondent has been impersonating Complainant and offering fraudulent investment management services via various domain names and fake websites, including previously at <blackstonegroups.com>. Respondent used <blackstonegroups.com> for a fake website that impersonated Complainant and phished for investor’s personal and account information. Complainant filed and won a UDRP proceeding against that domain name. Respondent recently re-launched the same impersonation website, this time at <blackstoneswebs.com>. This domain name is nearly identical to the disputed domain name in the instant proceeding (the former merely makes “web” plural). Complainant has filed a separate UDRP proceeding against the domain name <blackstoneswebs.com>. Complainant recently discovered that Respondent had set up a social media account on Telegraph also impersonating Complainant. On its Telegraph account, Respondent listed several different domain names and websites associated with Respondent’s fraudulent scheme. These include the Domain Name in the instant proceeding and the aforementioned domain names <blackstonegroups.com> and <blackstoneswebs.com> in the two previous proceedings. These domain names appear beside URLs for Complainant’s legitimate social media accounts as if they all purportedly originate from Complainant, further confusing consumers to believing Respondent’s fraudulent activities actual originate from Complainant. While the Domain Name in the instant proceeding no longer resolves to an active website, since it was listed as part of a URL on Respondent’s fake Telegraph account as a site to visit for information about Respondent’s fraudulent services, one can only presume that the Domain Name previously resolved to the same fake impersonation and phishing website as in blackstonegroups.com and blackstoneswebs.com.
The Domain Name has not been registered for a bona fide offering of goods or services or a legitimate noncommercial or fair use. It is registration and use in bad faith. There can be no doubt that Respondent was aware of the Complainant’s BLACKSTONE mark when he or she chose and registered the Domain Name, and, in fact, chose the domain name because it was confusingly similar to the Complainant’s well-known marks and intended to capitalize on that confusion to attract Internet users, disrupting the Complainant’s business.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Complainant is the owner of the trade mark BLACKSTONE, registered, inter alia, in the USA for financial services with first use recorded as 1990.
The Domain Name registered in 2019 does not currently resolve to an active site. The Respondent has been the subject of an adverse UDRP decision having registered other domain names containing the Complainant’s mark and used them for a site mimicking the official site of the Complainant and using its logo as a masthead for likely phishing purposes.
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”).
Identical or Confusingly Similar
The Domain Name consists of the Complainant's BLACKSTONE mark (which is registered in USA for financial services with first use recorded as 1990), the letters ‘s’, the generic word ‘web’ and the gTLD ‘.com’ which do not distinguish the Domain Name from the Complainant’s mark.
Previous panels have found confusing similarity when a respondent merely adds generic terms to a Complainant's mark. See PG&E Corp. v Anderson, D2000-1264 (WIPO Nov. 22, 2000) (finding that respondent does not by adding common descriptive or generic terms create new or different marks nor does it alter the underlying mark held by the Complainant). The addition of the generic term ‘web’
does not distinguish the Domain Name from the Complainant’s mark.
The Panel agrees that an additional single letter does not prevent confusing similarity between the Domain Name and the Complainant's BLACKSTONE trade mark pursuant to the Policy. See FCOA, LLC v. Domain Admin / Whois Privacy Corp., FA 1619791 (Forum June 23, 2015) (holding the <foresmost.com> domain name confusingly similar to the FOREMOST mark, noting that the domain name “makes a trivial addition to the trademark in the form of addition of the letter, ‘s.’”).
The gTLD ‘.com’ does not serve to distinguish a Domain Name from a Complainant’s mark. See Red Hat Inc v Haecke FA 726010 (Forum July 24, 2006) (concluding that the redhat.org domain name is identical to the complainant's red hat mark because the mere addition of the gTLD was insufficient to differentiate the disputed domain name from the mark).
Accordingly, the Panel holds that the Domain Name is confusingly similar to the Complainant’s BLACKSTONE registered mark.
As such the Panel holds that Paragraph 4(a)(i) of the Policy has been satisfied.
Rights or Legitimate Interests
The Complainant has not authorised the use of its mark. There is no evidence or reason to suggest the Respondent is commonly known by the Domain Name. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum September 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark).
The Domain Name does not currently resolve to any web site, but the Respondent has attached other domain names containing the Complainant’s mark to web sites mimicking the official site of the Complainant and purporting to offer competing services, but likely to be phishing. Accordingly, the registration of the Domain Name appears to be part of a pattern of phishing conduct which is deceptive. As such it cannot amount to the bona fide offering of goods and services and is not a legitimate noncommercial or fair use. See DaVita Inc. v. Cynthia Rochelo, FA 1738034 (Forum July 20, 2017) (“a phishing scheme is not considered a bona fide offering of goods or services or legitimate noncommercial or fair use.”).
As such the Panelist finds that the Respondent does not have rights or a legitimate interest in the Domain Name and that the Complainant has satisfied the second limb of the Policy.
Registration and Use in Bad Faith
The fact that the Respondent has previously used domain names containing the BLACKSTONE mark for sites mimicking the official site of the Complainant and using the Complainant’s logo as a masthead for likely phishing purposes shows that the Respondent is aware of the Complainant, its business, rights and services and it is more likely than not that the Respondent has registered the Domain Name for the purposes of phishing.
Phishing conduct is evidence of bad faith registration and use within the Policy ¶ 4(a)(iii). See Klabzuba Oil & Gas, Inc v LAKHPAT SINGH BHANDARI, FA 1506001625750 (Forum July 17, 2015).
As such, the Panelist believes that the Complainant has made out its case that the Domain Name was registered and used in bad faith and has satisfied the third limb of the Policy under para. 4(b)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <blackstonesweb.com> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: April 28, 2020
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