Nasdaq, Inc. v. never banega
Claim Number: FA2103001937703
Complainant is Nasdaq, Inc. (“Complainant”), represented by Monica Riva Talley of Sterne, Kessler, Goldstein & Fox PLLC, District of Columbia, USA. Respondent is never banega (“Respondent”), Israel.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <nasdaqlovers.com>, registered with NameCheap, 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.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on March 23, 2021; the Forum received payment on March 23, 2021.
On March 24, 2021, NameCheap, Inc. confirmed by e-mail to the Forum that the <nasdaqlovers.com> domain name is registered with NameCheap, Inc. and that Respondent is the current registrant of the name. NameCheap, Inc. has verified that Respondent is bound by the NameCheap, Inc. 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 25, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 14, 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@nasdaqlovers.com. Also on March 25, 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 March 30, 2021.
On March 31, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Richard Hill 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.
A. Complainant
Complainant states that it is a global financial technology, trading, and information services provider. The NASDAQ stock exchange was established as the world’s first electronic stock market in 1971, and made its name as a high-tech exchange. Today, the NASDAQ stock market is the second-largest stock exchange in the world. Complainant’s technology powers more than 100 marketplaces in 50 countries; approximately 10% of the world’s security transactions occur on Complainant’s systems. Complainant manages 90 different markets and exchanges from 50 offices in 26 countries across six continents, and in every capital market. Through its portfolio of solutions, Complainant enables customers to plan, optimize, and execute their business using technologies that provide transparency and insight for navigating global capital markets. Millions of Internet users regularly rely on Complainant’s up-to-date information regarding trading, finance, investment, and stock market data, provided via various websites (including <www.nasdaq.com>), among others. Complainant has rights in the NASDAQ mark based upon registration in the United States in 1971.
Complainant alleges that the disputed domain name is confusingly similar to its NASDAQ mark because it incorporates the mark in its entirety, merely adding the generic term “lovers” and the “.com” generic top-level domain (“gTLD”).
According to Complainant, Respondent does not have rights or legitimate interests in the disputed domain name because Respondent is not authorized to use Complainant’s 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. Rather, Respondent trades off Complainant’s goodwill to redirect Internet traffic to a fraudulent website.
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith. Respondent creates confusion with Complainant and purports to offer related services. Additionally, Respondent uses the disputed domain in connection with phishing. Finally, Respondent had knowledge of Complainant’s rights in the NASDAQ mark.
B. Respondent
Respondent states, in pertinent part: “I don’t mind giving you the domain. I’ve never used it and I don’t have any need in it … don’t know what all the e-mails about.”
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."
In the present case, 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 act nec ultra petita nec infra petita, that is, 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 has no scope to do anything other than to recognize the common request, and it has no mandate to make findings of fact or of compliance (or not) with the Policy.
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.”).
For the reasons set forth above, the Panel will not analyze this element of the Policy.
For the reasons set forth above, the Panel will not analyze this element of the Policy.
For the reasons set forth above, the Panel will not analyze this element of the Policy.
Given the common request of the Parties, it is Ordered that the <nasdaqlovers.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: March 31, 2021
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