Network Solutions, LLC v. Bizcn.com, Inc.
Claim Number: FA2102001933246
Complainant is Network Solutions, LLC (“Losing Registrar”), represented by Jeffrey Neace of Web.com Group, Inc., Florida, USA. Respondent is Bizcn.com, Inc. (“Gaining Registrar”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <patterns.com> (the “Domain Name”), registered with Bizcn.com, Inc..
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.
Nicholas J.T. Smith as Panelist.
Losing Registrar submitted a Complaint to the Forum electronically on February 23, 2021; the Forum received payment on March 1, 2021.
On March 2, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 9, 2021 by which Gaining Registrar 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@patterns.com. Also on March 2, 2021, the Written Notice of the Complaint, notifying Gaining Registrar of the e-mail addresses served and the deadline for a Response, was transmitted to Gaining Registrar 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 March 9, 2021.
On March 15, 2021, pursuant to Losing Registrar’s request to have the dispute decided by a single-member Panel, the Forum appointed Nicholas J.T. Smith as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the Forum has discharged its responsibility under ICANN’s Registrar Transfer Dispute Resolution Policy (“TDRP” or “Policy”) through submission of Electronic Notices. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the TDRP, the Forum's Supplemental Rules to TDRP, and any rules and principles of law that the Panel deems applicable.
Losing Registrar requests that the Domain Name be transferred from Gaining Registrar to Losing Registrar.
A. Losing Registrar
The Domain Name has been the target of an attempt to fraudulently transfer ownership from the true owner. On September 10, 2020, the Losing Registrar received a primary email replacement request for the Domain Name. In order to support the e-mail replacement request, the requestor provided identification and supporting documents. The ID and documents in the email were later discovered to be fake. Losing Registrar’s agent reviewed and processed the email and sent notice to both the original registrant email address and the requesting email address. The original email address message bounced back, and on September 12, 2020 the primary and holder email addresses on file for the Domain Name were updated to the requesting email address.
The new primary email holder then requested a password reset and on September 14, 2020 gained access to control the Domain Name. The Domain Name was transferred to the Gaining Registrar on September 21, 2020. On December 9, 2020 the Losing Registrar sent an email to the Gaining Registrar requesting a lockdown of the Domain Name due to the unauthorized transfer, after discovering the primary email address requested the transfer came from an IP address in Moldova. The original registrant of the Domain Name contacted the Losing Registrar, who reached out numerous times to Gaining Registrar for an update. After minimal response, Gaining Registrar finally locked the Domain Name over a month after first being contacted.
In late January 2021, the original registrant of the Domain Name reached out to the Gaining Registrar detailing that the Domain Name was illegally transferred to them without the registrant’s permission. Gaining Registrar responded stating it was investigating the situation. The original registrant responded requesting an expedited process. It provided proof of ownership in the Domain Name, and noted that it owned the Domain Name since 1995. The original registrant and the Losing Registrar have repeatedly made contact with the Gaining Registrar since January with no resolution of this matter.
Gaining Registrar’s transfer of the disputed domain name violates paragraph 1.1 of ICANN’s Inter-Registrar Transfer Policy which prohibits Administrative authority superseding registrant’s authority. Losing Registrar requests that the Panel approve the request transferring the Domain Name back to the original registrant, and Losing Registrar be reinstated as the registrar of the Domain Name under Policy ¶ 3.1.2(vii).
B. Gaining Registrar
Gaining Registrar accepted transfer of the <patterns.com> domain name according the normal domain name transfer process, through use of a transfer code from the Losing Registrar and the Domain Name provided with it.
Gaining Registrar froze the Domain Name after learning it may have been stolen. GR requested certificate information to verify ownership in the Domain Name, but the certificates provided by Losing Registrar and original registrant had no seals, and thus, under Chinese law, may be considered “PS”, which allegedly has no credibility.
Specifically, Gaining Registrar has requested provision from the Losing Registrar and original registrant the following material:
a) a letter of commitment to circumvent the Gaining Registrar’s liability; and
b) supplementary proof of domain name ownership such as an identity certificate, valid contract information, domain name registration certificate, or similar.
The Losing Registrar has provided a screenshot of the domain name’s webpage, emails between Losing Registrar and the original registrant disputing the transfer, a domain name renewal certificate with no seal, and a screenshot of the original domain name owner’s annual report. Because Gaining Registrar cannot verify the proof provided by the Losing Registrar and original registrant as to ownership it will await the decision of the independent judicial authorities.
The Panel is not satisfied that the transfer of the Domain Name from the Losing Registrar to the Gaining Registrar was in breach of the ICANN Transfer Policy (“Transfer Policy”), and hence there is no basis to award the Losing Registrar the remedy it seeks under the Policy.
Paragraph 3.1(v) of the Policy provides that the sole remedies that the Panel may issue under the Policy are either to Approve Transfer (approve the transfer from the Losing Registrar to the Gaining Registrar) or Deny the Transfer (which could include ordering the Domain Name be returned to the Losing Registrar in cases where a Transfer has already occurred). Curiously the Complaint requests that the Panel issue a decision, “that the request for the transfer of the domain sponsorship be approved, that Complainant be reinstated as the Registrar as it was before the unauthorized transfer, and that the original registration before the unauthorized transfer be reinstated”. The Panel interprets this request as a request that the Panel Deny the Transfer and hence order the Domain Name be returned to the Losing Registrar as the Panel has no other powers under the Policy.
In order to issue the order that the Losing Registrar seeks under the Policy the Panel must find that an Invalid Transfer occurred, being a transfer that was non-compliant with the Transfer Policy (see paragraphs 1.7 and 3.2(vii) of the Policy). The Losing Registrar submits that the Transfer was non-compliant because it was an unauthorized and fraudulent transfer which violates paragraph 1.1 of the Transfer Policy, which states that.
The Administrative Contact and the Registered Name Holder, as listed in the Losing Registrar's or applicable Registry's (where available) publicly accessible Whois service are the only parties that have the authority to approve or deny a transfer request to the Gaining Registrar. In the event of a dispute, the Registered Name Holder's authority supersedes that of the Administrative Contact.
Registrars may use Whois data from either the Registrar of Record or the relevant Registry for the purpose of verifying the authenticity of a transfer request; or from another data source as determined by a consensus policy.
The Panel does not understand the Losing Registrar’s arguments as to how the Transfer violates paragraph 1.1 of the Transfer Policy. This is not a situation where a registrar is receiving instructions from the Registered Name Owner and Administrative Contact that are in conflict, which appears to be the circumstance that paragraph 1.1 of the Transfer Policy relates to. What is alleged to have happened is that a third party engaged in fraudulent conduct to acquire control of the Domain Name from the original registrant. Upon acquiring control of the Domain Name it then transferred the Domain Name to the Gaining Registrar. The transfer was initiated (and presumably approved) by the e-mail address that was (whether fraudulently or not) recorded as the official e-mail address of the Registered Name Owner. Paragraph 1.1 of the Transfer Policy simply does not apply and the Losing Registrar makes no cogent arguments for why it should apply.
As noted in the Response, the Gaining Registrar accepted transfer of the Domain Name according the normal domain name transfer process, through use of a transfer code from the Losing Registrar which was provided with the approval of the email address associated with the Registered Name Holder. The Losing Registrar does not argue that the Transfer itself (as opposed to the fraud that resulted in the request to transfer) was fraudulent or that the Gaining Registrar in any way breached its obligations under the Transfer Policy (specifically the obligations at paragraph 2).
Paragraph 3.7 of the Transfer Policy provides that the Registrar of Record (in this case the Losing Registrar) can deny a transfer request if there is evidence of fraud, but this is not relevant in this case. Paragraph 3.7 applies when a Losing Registrar denies a transfer request; in this case the transfer request was completed and 2.5 months later, the Losing Registrar discovered that (potentially) the transfer request was made as a result of fraud on the original registrant.
Paragraph 3.7 is the only reference to fraud under the Transfer Policy. The Transfer Policy does not provide a remedy in all circumstances where a transfer occurs following a fraud on the domain name holder; rather it governs the obligations of each registrar in order to ensure that transfers are conducted in an appropriate manner.[i] Again, the Panel notes that there is no evidence or submissions to submit that the Transfer, once requested by the registrant (albeit one that had taken control of the Domain Name by fraud) was conducted in any manner other than in line with the Transfer Policy.
In TierraNet, Inc. v. Lexsynergy Ltd. Claim Number: FA1709001749613, a similar case, where the basis for the application of the Policy (albeit in an earlier form) was fraud by the domain name holder, the panel said:
The reference to “evidence of fraud” in the TDRP does not refer to fraudulent conduct by the holder of the domain name, but evidence of fraud with respect to the transfer of that domain name. See GNSO Issues Report, Inter-Registrar Transfer Policy Part B at 14-15 (May 15, 2009). See easyDNS Technologies Inc. v. PDR Ltd. d/b/a PublicDomainRegistry.com, FA 1532690 (Forum Jan. 6, 2014). No evidence has been presented that the Gaining Registrar, Lexsynergy Ltd., engaged in any fraudulent conduct in procuring the transfer. Thus, Complainant’s assertion of fraud by Ahmad A. Hashem is not a reason to have refused the transfer. Moreover, there is nothing in the TDRP that permits a registrar to “claw back” the transfer of a domain name if the domain name is transferred in violation of the 60-day lock period.
The claimed fraud on the original registrant does amount to a breach of the Transfer Policy. The transfer of the Domain Name to the Gaining Registrar was not in breach of the Transfer Policy. While the Panel is sympathetic to the original registrant of the Domain Name who, on the basis of the evidence submitted in the Complaint, prima facie is the victim of some form of fraud, absent any breach of the Transfer Policy, there is no basis under the Policy to order that the Transfer of the Domain Name to the Gaining Registrant be denied or provide any other relief that the Losing Registrar seeks.
It is Ordered that the <patterns.com> transfer to Gaining Registrar, Bizcn.com, Inc., is APPROVED.
The Panel therefore Orders <patterns.com> REMAIN WITH Gaining Registrar.
Nicholas J.T. Smith, Panelist
Dated: March 18, 2021
[i] The Panel also notes Policy ¶ 3.1.4(ii)(d) makes reference to the Losing Registrar providing evidence of fraud, but such evidence is expressly only relevant if a transfer was denied; i.e. if the dispute before the Panel resolves around second 3.7 of the Transfer Policy which is only relevant if the Losing Registrar is refusing to transfer a domain name.
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