Bridgewater Associates, LP v. Alex Tischler / All weather financial LLC
Claim Number: FA2103001937479
Complainant is Bridgewater Associates, LP (“Complainant”), represented by Eric J. Shimanoff of Cowan, Liebowitz & Latman, P.C., New York, USA. Respondent is Alex Tischler / All weather financial LLC (“Respondent”), Illinois, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <all-weather-financial-llc.com>, registered with 1&1 IONOS SE.
The undersigned certifies that she has acted independently and impartially and to the best of her knowledge has no known conflict in serving as Panelist in this proceeding.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to the Forum electronically on March 22, 2021; the Forum received payment on March 22, 2021.
On March 24, 2021, 1&1 IONOS SE confirmed by e-mail to the Forum that the <all-weather-financial-llc.com> 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 March 29, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 19, 2021 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@all-weather-financial-llc.com. Also on March 29, 2021, 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 22, 2021.
Complainant’s Additional Submission was received and determined to be complete on April 23, 2021.
On April 27, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Sandra J. Franklin 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
1. Respondent’s <all-weather-financial-llc.com> is confusingly similar to Complainant’s ALL WEATHER mark.
2. Respondent does not have any rights or legitimate interests in the <all-weather-financial-llc.com> domain name.
3. Respondent registered and uses the <all-weather-financial-llc.com> domain name in bad faith.
B. Respondent
1. Respondent has rights in the <all-weather-financial-llc.com> domain name based upon articles of incorporation in the state of Illinois.
2. Respondent uses the <all-weather-financial-llc.com> domain name for a self-directed IRA.
C. In its Additional Submission, Complainant reiterates that Respondent is not using the <all-weather-financial-llc.com> domain name for a legitimate purpose.
Complainant manages over $160 billion in global investments and is the world’s largest hedge fund. Complainant holds a registration for the ALL WEATHER mark through Complainant’s registration of the mark with the USPTO (Reg. No. 2,798,735, registered December 23, 2003).
Respondent registered the <all-weather-financial-llc.com> domain name on February 22, 2021, and uses it to display competitive hyperlinks.
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.
The Panel finds that Complainant has rights in the ALL WEATHER mark through Complainant’s registration of the mark with the USPTO. See Nintendo of America Inc. v. lin amy, FA 1818485 (Forum Dec. 24, 2018) ("Complainant’s ownership a USPTO trademark registration for the NINTENDO mark evidences Complainant’s rights in such mark for the purposes of Policy ¶ 4(a)(i).”).
Respondent’s <all-weather-financial-llc.com> domain name uses Complainant’s ALL WEATHER mark and simply adds hyphens, the descriptive terms “financial” and “llc,” and the gTLD “.com.” These changes do not sufficiently distinguish a disputed domain name from a mark under Policy ¶ 4(a)(i). See Empowered Medical Solutions, Inc. d/b/a QRS-Direct and QRS Magnovit AG v. NULL NULL / QUANTRON RESONANCE SYSTEMS / JIM ANDERSON / HTR / unknown HTR / HTR, FA 1784937 (Forum June 8, 2018) (“Adding or removing descriptive terms or a gTLD is insufficient to differentiate a disputed domain name from a complainant’s mark under Policy ¶ 4(a)(i).”); see also Pirelli & C. S.p.A. v. Tabriz, FA 921798 (Apr. 12, 2007) (finding that the addition of a hyphen between terms of a registered mark did not differentiate the <p-zero.org> domain name from the P ZERO mark under Policy ¶ 4(a)(i)). Therefore, the Panel finds that Respondent’s <all-weather-financial-llc.com> domain name is confusingly similar to Complainant’s ALL WEATHER mark.
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(i).
Once Complainant makes a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), the burden shifts to Respondent to show it does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests”).
Complainant contends that Respondent lacks rights and legitimate interests in the <all-weather-financial-llc.com> domain name, as Respondent is not commonly known by the disputed domain name. Complainant has not authorized Respondent to use the ALL WEATHER mark. The WHOIS information for the disputed domain name lists the registrant as “Alex Tischler / All weather financial LLC.” Complainant asserts that Respondent has not actually engaged in any business under the ALL WEATHER mark or the disputed domain name, and that Respondent only recently filed for registration of the “All Weather Financial, LLC” business name. Complainant provides a screenshot showing that the website at <all-weather-financial-llc.com> is a parked website containing links to third-party businesses offering services that compete with Complainant’s services. Respondent claims that it previously used the ALL WEATHER mark for its company that offered home exterior services and is now merely reusing that name for its self-directed IRA. Respondent does not provide evidence showing the current existence of an LLC in Illinois. Respondent provides a Contractor’s Certificate for All Weather Home Exteriors, dated July 26, 2006. However, Respondent registered the <all-weather-financial-llc.com> domain name on February 22, 2021, long after the 2006 date of that Certificate and Complainant’s 2003 registration of the ALL WEATHER mark with the USPTO. The Panel finds that Respondent does not currently use the disputed domain name to conduct business under the name All Weather Home Exteriors, and therefore is not commonly known by the disputed domain name, and thus has no rights under Policy ¶ 4(c)(ii). See Moneytree, Inc. v. Matt Sims / MoneyTreeNow, FA1501001602721 (Forum Mar. 3, 2015) (finding that even though the respondent had listed “Matt Sims” of “MoneyTreeNow” as registrant of the <moneytreenow.com> domain name, the respondent was not commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii), because he had failed to list any additional affirmative evidence beyond the WHOIS information).
Complainant also argues that Respondent fails to use the <all-weather-financial-llc.com> domain name for a bona fide offering of goods or services or a legitimate noncommercial or fair use, as Respondent uses it in connection with competitive hyperlinks. Using a disputed domain name in connection with competitive hyperlinks is not a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii). See CheapCaribbean.com, Inc. v. Moniker Privacy Services, FA1411001589962 (Forum Jan. 1, 2015) (“The Panel finds that Respondent’s use of the <cheepcaribbean.com> name to promote links in competition with Complainant’s travel agency services does not fall within Policy ¶ 4(c)(i)’s bona fide offering of goods or services, nor does it amount to a legitimate noncommercial or fair use described in Policy ¶ 4(c)(iii).”). Respondent argues that it makes legitimate use of the <all-weather-financial-llc.com> domain in connection with a self-directed IRA, but provides no supporting evidence. Complainant demonstrates that Respondent uses the disputed domain name to provide links to Complainant’s competitors. The Panel finds that this is not a bona fide offering of goods or services or a legitimate noncommercial or fair use, and thus Respondent has no rights under Policy ¶¶ 4(c)(i) or (iii).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant contends that Respondent registered and uses the <all-weather-financial-llc.com> domain name in bad faith for competitive hyperlinks. Using a disputed domain name in connection with competitive hyperlinks can demonstrate bad faith per Policy ¶ 4(b)(iii). See Lenovo (Beijing) Limited Corporation China v. jeonggon seo, FA1411001591638 (Forum Jan. 16, 2015) (finding that where the complainant operated in the computer industry and the respondent used the disputed domain name to offer competing computer related links, the respondent was disrupting the complainant’s business offerings in violation of Policy ¶ 4(b)(iii)). Complainant establishes that Respondent resolving uses the disputed domain name for a parked website containing links to third-party businesses offering services that compete with Complainant’s services. The Panel finds that this use constitutes bad faith under Policy ¶ 4(b)(iii).
The Panel finds that using the disputed domain name to attract users to competing hyperlinks for its own gain is also bad faith under Policy ¶ 4(b)(iv). See Metro. Life Ins. Co. v. Bonds, FA 873143 (Forum Feb. 16, 2007) (“The Panel finds such use to constitute bad faith registration and use pursuant to Policy ¶ 4(b)(iv), because [r]espondent is taking advantage of the confusing similarity between the <metropolitanlife.us> domain name and Complainant’s METLIFE mark in order to profit from the goodwill associated with the mark.”); see also Carey Int’l, Inc. v. Kogan, FA 486191 (Forum July 29, 2005) (“[T]he Panel finds that Respondent is capitalizing on the confusing similarity of its domain names to benefit from the valuable goodwill that Complainant has established in its marks. Consequently, it is found that Respondent registered and used the domain names in bad faith under Policy ¶ 4(b)(iv).”)
Complainant contends that Respondent registered the <all-weather-financial-llc.com> domain name in bad faith with actual knowledge of Complainant’s rights in the ALL WEATHER mark, based on the famous nature of the mark. The fame of a mark can demonstrate actual knowledge of a complainant’s rights in a mark at registration and show bad faith. See AutoZone Parts, Inc. v. Ken Belden, FA 1815011 (Forum Dec. 24, 2018) (“Complainant contends that Respondent’s knowledge can be presumed in light of the substantial fame and notoriety of the AUTOZONE mark, as well as the fact that Complainant is the largest retailer in the field. The Panel here finds that Respondent did have actual knowledge of Complainant’s mark, demonstrating bad faith registration and use under Policy ¶ 4(a)(iii).”). Complainant argues that Complainant’s ALL WEATHER Mark is the subject of frequent media coverage, and has a well-established reputation through its long-term and widespread use of the mark in the global financial and investment services industries. The Panel agrees, noting the timing of Respondent’s registration of the <all-weather-financial-llc.com> domain name and its use to directly compete with Complainant, and finds further bad faith under Policy ¶ 4(a)(iii).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(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 <all-weather-financial-llc.com> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: May 3, 2021
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