OSilas Foundation v. Redacted for Privacy
Claim Number: FA2004001892126
Complainant is OSilas Foundation (“Complainant”), represented by Ashley M. Bennett Ewald of LATHROP GPM, LLP, Minnesota, USA. Respondent is Redacted for Privacy (“Respondent”), USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <osilasfoundation.org>, registered with 1&1 IONOS SE.
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.
The Honourable Neil Anthony Brown QC as Panelist.
Complainant submitted a Complaint to the Forum electronically on April 15, 2020; the Forum received payment on April 15, 2020.
On April 15, 2020, 1&1 IONOS SE confirmed by e-mail to the Forum that the <osilasfoundation.org> domain name is registered with 1&1 IONOS SE and that Respondent is the current registrant of the name. 1&1 IONOS SE has verified that Respondent is bound by the 1&1 IONOS SE 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 21, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 11, 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 firstname.lastname@example.org. Also on April 21, 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.
A timely Response was received and determined to be complete on April 29, 2020.
On May 4, 2020, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed The Honourable Neil Anthony Brown QC 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.
Complainant requests that the domain name be transferred from Respondent to Complainant.
Complainant made the following contentions.
Complainant, OSilas Foundation, is a non-profit organization offering charitable services in the areas of education and arts. Complainant has common law rights in the OSILAS FOUNDATION mark through its use in commerce since 1999. Respondent’s <osilasfoundation.org> is identical to Complainant’s OSILAS FOUNDATION mark because the disputed domain name incorporates the mark in its entirety. The <osilasfoundation.org> domain name was registered on February 3, 2020.
Respondent has no rights or legitimate interests in the <osilasfoundation.org> domain name. Respondent is not licensed or authorized to use Complainant’s OSILAS FOUNDATION mark and is not commonly known by the disputed domain name. Additionally, Respondent fails to use the disputed domain name for a bona fide offering of goods or services or a legitimate noncommercial or fair use. Rather, Respondent uses the disputed domain name to pass off as Complainant in connection with an email phishing scheme.
Respondent registered and uses the <osilasfoundation.org> domain name in bad faith. Respondent uses the disputed domain name in connection with an email phishing scheme. Additionally, Respondent had constructive or actual knowledge of Complainant’s rights in the OSILAS FOUNDATION mark due to Respondent’s use of the disputed domain name to impersonate Complainant.
Respondent submitted a timely response which states, in relevant part: “I AGREE the domain should be released and awarded to the complainant. I have supporting evidence my name and credit card were fraudulently used to register the domain. . . . The complainant point of contact is aware of this and of my desire to resolve this in their favor.”
For the reasons set forth below, the Panel will not make any findings of fact.
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.
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.
The parties have both asked for the domain name to be transferred to the Complainant. In accordance with a general legal principle governing arbitrations as well as national court proceedings, this Panel holds that it cannot issue a decision that would be either less than requested, nor more than requested by the parties. Since the requests of the parties in this case are identical, the Panel should recognize the common request. Moreover, and it has no mandate to make findings of fact or of whether the Policy has been complied with or not.
See Malev Hungarian Airlines, Ltd. v. Vertical Axis Inc., FA 212653 (Forum Jan. 13, 2004); see also 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 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.”). See also the recent decision in The Toronto-Dominion Bank v. michael roth , FA870296 (Forum Dec. 3,2019).
REDACTION OF RESPONDENT’S IDENTITY
Before announcing its decision, the Panel wishes to raise another matter. In this proceeding, Respondent contended that they have been the victim of identity theft. In their Response, Respondent has stated that their name and credit card were fraudulently used to register the domain name and the Panel accepts that this is so. The evidence has made it clear in the opinion of the Panel that a fraud was perpetrated, that Respondent was one of the victims and that further frauds would more likely than not be committed had the illegal intentions of those responsible not been discovered. Thus, although the named Respondent is the domain name holder and the proper Respondent in this proceeding , the real name and contact details of the person who wrongly effected the registration is unknown. It is also clear that this is the reason why Respondent very properly has consented to the transfer of the domain name to Complainant .As they put it themselves in an email to the Forum on April 30, 2020, “Hopefully the panel will shut the site down for my sake and for the sake of the foundation”.
This gives rise to the question whether there should be a redaction from the decision to protect the privacy of the Respondent. Neither party has requested itself any redaction. However, the Panel has formed the view that it may well be unfair to the Respondent to continue to have their name associated with the proceeding, especially as they are the Respondent and where the impression may be given to internet users that Respondent has some responsibility for some of the events, whereas in fact Respondent does not, being an innocent party.
The Panel has therefore decided to consider on its own initiative whether it should exercise the power to determine whether there should be a redaction from the decision to protect Respondent’s privacy. In considering the issue, the Panel will take the following rules and decisions into account.
Under Policy ¶ 4(j) the Panel has power to determine that portions of its decision may be redacted. The practical result of the exercise of this power is that the provider, in this case the Forum, will not publish on the internet the full decision, but will redact the portion determined by the Panel to be redacted. It is clear that the language of the Policy in that regard is wide enough to redact from a decision the case caption and any other reference to the named Respondent.
According to Policy ¶ 4(j), “[a]ll decisions under this Policy will be published in full over the Internet, except when an Administrative Panel determines in an exceptional case to redact portions of its decision.” In Wells Fargo & Co. v. John Doe as Holder of Domain Name <wellzfargo.com>, FA 362108 (Forum Dec. 30, 2004) and Wells Fargo & Co. v. John Doe as Holder of Domain Name <wellsfargossl>, FA 453727 (Forum May 19, 2005), the panels omitted the respondents’ personal information from the decisions, pursuant to Policy ¶ 4(j), to protect the respondents who claimed to be victims of identity theft from becoming aligned with acts the actual registrants appeared to have sought to impute to the respondents.
The Panel notes here that the power given to it by Policy ¶ 4(j) is a discretionary one that must be exercised judicially. In that regard the Panel would have to be satisfied that the case was an “exceptional” one and that it was appropriate to be made in all the circumstances.
ICANN Rule 16(b) also makes practical provision for the publication of the full decision except if the Panel determines otherwise under Policy ¶ 4(j).
It is true that Forum Supplemental Rule 15(b) provides “All requests pursuant to Policy paragraph 4(j) and Rule 16(b) to have a portion of the decision redacted, must be made in the Complaint, the Response, or an Additional Submission that is submitted before the Panel’s decision is published.” But in those cases where there is no request, such as the present case, the Panel has a discretion although, as has just been noted, the discretion must be exercised judicially.
The Panel notes that previous decisions have held that the registrar-confirmed registrant of a disputed domain name (per the WHOIS at commencement of the proceeding) is the proper respondent, notwithstanding the possibility that said respondent’s identity was stolen. See, e.g., Banco Bradesco S/A v. Gisele Moura Leite, D2014-0414 (WIPO Apr. 30, 2014). Despite this, the power to redact a portion of a decision is expressly conferred by Policy ¶ 4(j) and may be implemented by ICANN Rule 16 (b).Thus, in the present case the named registrant is the proper Respondent
The role of the Panel is then to determine whether the circumstances of the present case including the theft of Respondent’s identity, the fraud and the probability of further fraud, warrant the redaction of Respondent’s name and any other identifying information from the Panel’s decision.
The Panel has considered this matter carefully. It is clear that whoever was responsible for registering the domain name in the name of Respondent has stolen their identity and been responsible for the fraud. Thus, in the opinion of the Panel, the identity of the Respondent should be protected by redaction.
The Panel has therefore decided that in all the circumstances this is an exceptional case and that it is appropriate to redact Respondent’s name and information from the Panel’s decision. The Panel therefore determines for the purposes of Policy ¶ 4(j) and ICANN Rule 16(b) that this will be done.
The Honourable Neil Anthony Brown QC
Dated: May 6, 2020
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