Colin LeMahieu v. Mikhail Golushko / privat
Claim Number: FA2109001963840
Complainant is Colin LeMahieu (“Complainant”), represented by Maulin V Shah of Envision IP LLC, New York, USA. Respondent is Mikhail Golushko / privat (“Respondent”), Ukraine.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <nanofuturet.com>, registered with Vautron Rechenzentrum AG.
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 September 15, 2021; the Forum received payment on September 15, 2021.
On September 16, 2021, Vautron Rechenzentrum AG confirmed by e-mail to the Forum that the <nanofuturet.com> domain name is registered with Vautron Rechenzentrum AG and that Respondent is the current registrant of the name. Vautron Rechenzentrum AG has verified that Respondent is bound by the Vautron Rechenzentrum AG 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 September 16, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 6, 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@nanofuturet.com. Also on September 16, 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.
Having received no response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.
On October 11, 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. 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
Complainant states that he is the founder of the NANO digital currency. NANO is currently one of the top 100 cryptocurrencies globally with a market capitalization over $700 million USD, according to CoinMarketCap.com. NANO was originally launched in 2014 under the name RaiBlocks. On January 31, 2018, the digital currency rebranded to NANO, garnering instant worldwide recognition. Complainant has rights in the NANO mark through its registration of the mark in the United States in 2020.
Complainant alleges that the disputed domain name is confusingly similar to its NANO mark as it incorporates the mark in its entirety and merely adds the generic term “future”, the letter “t” (an abbreviation for “token”, which is a term used in the context of digital currencies), and the “.com” generic top-level domain (“gTLD”). Complainant cites UDRP precedents to support its position.
According to Complainant, Respondent lacks rights in the disputed domain name as Respondent is not commonly known by the disputed domain name nor did Complainant authorize Respondent to use the NANO mark in any way. Further, Respondent fails to make a bona fide offering of goods or services or legitimate noncommercial or fair use of the disputed domain name. Instead, the disputed domain name resolves to a website which promotes a digital currency token called “Nano Future Token”, thus competing with Complainant and misleading users into thinking that Respondent’s website is associated with Complainant. Complainant cites UDRP precedents to support its position.
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith to pass off as Complainant and offer related products and services in order to confuse internet users for commercial gain. Respondent had actual knowledge of Complainant’s rights in the NANO mark. Complainant cites UDRP precedents to support its position.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has rights in the mark NANO dating back to 2020 and uses it to provide cryptocurrency products and services.
The disputed domain name was registered in 2021.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
The disputed domain name resolves to a website which promotes a digital currency token, thus competing with Complainant and misleading users into thinking that Respondent’s website is associated with Complainant.
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”).
The disputed domain name incorporates Complainant’s NANO mark in its entirety and merely adds the generic term “future”, the letter “t” (an abbreviation for “token”, which is a term used in the context of digital currencies), and the “.com” generic top-level domain (“gTLD”). Registration of a domain name that contains a mark in its entirety and adds a generic word, letter, and gTLD does not distinguish the domain name from the mark per Policy ¶ 4(a)(i). See Wiluna Holdings, LLC v. Edna Sherman, FA 1652781 (Forum Jan. 22, 2016) (finding the addition of a generic term and gTLD is insufficient in distinguishing a disputed domain name from a mark under Policy ¶ 4(a)(i)); see also Ripple Labs Inc. v. oryx coin, FA1751089 (Forum Oct. 22, 2017) (“Respondent’s <ripplefuture.com> domain name contains Complainant’s RIPPLE mark with the generic term “future” added thereto. The top level domain name, “.com,” is appended to the “ripplefuture” string to complete the domain name. The differences between Respondent’s domain name and Complainant’s trademark fail to differentiate one from the other for the purpose of the Policy.”); see also Home Depot Product Authority, LLC v. Angelo Kioussis, FA 1784554 (Forum June 4, 2018) (“The domain name contains the mark in its entirety, with only the addition of the generic letters ‘sb’ and the digits ‘2018,’ plus the generic Top Level Domain (“gTLD”) ‘.com.’ These alterations of the mark, made in forming the domain name, do not save it from the realm of confusing similarity under the standards of the Policy.”). Therefore, the Panel finds that the disputed domain name is confusingly similar to Complainant’s mark per Policy ¶ 4(a)(i).
Rights or Legitimate Interests
Complainant has not licensed or otherwise authorized Respondent to use its mark. Respondent is not commonly known by the disputed domain name: where a response is lacking, WHOIS information may be used to determine whether a respondent is commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Amazon Technologies, Inc. v. LY Ta, FA 1789106 (Forum June 21, 2018) (concluding a respondent has no rights or legitimate interests in a disputed domain name where the complainant asserted it did not authorize the respondent to use the mark, and the relevant WHOIS information indicated the respondent is not commonly known by the domain name). Here, the WHOIS information for the disputed domain name lists the registrant as “Mikhail Golushko / privat”. Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii).
The disputed domain name resolves to a website which promotes a digital currency token called “Nano Future Token”, thus competing with Complainant and misleading users into thinking that Respondent’s website is associated with Complainant. Use of a disputed domain name to resolve to a webpage that offers products and services that relate to a complainant in an attempt to pass off as complainant is not a bona fide offering of goods or services or legitimate noncommercial or fair use per Policy ¶ 4(c)(i) or (iii). See Ripple Labs Inc. v. NGYEN NGOC PHUONG THAO, FA 1741737 (Forum Aug. 21, 2017) (“Respondent uses the [disputed] domain name to divert Internet users to Respondent’s website… confusing them into believing that some sort of affiliation exists between it and Complainant… [which] is neither a bona fide offering of goods or services under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).”), see also Upwork Global Inc. v. Shoaib Malik, FA 1654759 (Forum Feb. 3, 2016) (finding that the complainant provides freelance talent services, and that the respondent competes with the complainant by promoting freelance talent services through the disputed domain’s resolving webpage, which is neither a bona fide offering of goods or services, nor is it a legitimate noncommercial or fair use). Therefore, the Panel finds that Respondent fails to use the disputed domain name to make a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). And the Panel finds that Respondent does not have rights or legitimate interests in the disputed domain name.
Respondent (who did not reply to Complainant’s contentions) has not presented any plausible explanation for its use of Complainant’s mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain name.
Indeed, as already noted, the resolving website misleads users into thinking that Respondent’s website is associated with Complainant, and it offers related products and services for commercial gain. Use of a disputed domain name to confuse internet users into thinking an affiliation exists by offering similar services may be evidence of bad faith per Policy ¶ 4(b)(iii) or (iv). See PopSockets LLC v. san mao, FA 1740903 (Forum Aug. 27, 2017) (finding disruption of a complainant’s business which was not directly commercial competitive behavior was nonetheless sufficient to establish bad faith registration and use per Policy ¶ 4(b)(iii)); see also Bittrex, Inc. v. Richard Lai / BITTREXQuick, FA 1773445 (Forum Apr. 2, 2018) (“Complainant claims the at-issue domain name resolves to a website which makes use of the term “BITTREXQUICK” to create a likelihood of confusion and which purports to offer cryptocurrency-related service. The Panel finds Respondent registered and used the <bittrexquick.us> domain name in bad faith per Policy ¶¶ 4(b)(iii) and/or (iv).”). Therefore, the Panel finds that Respondent registered and uses the disputed domain name in bad faith per Policy ¶ 4(b)(iii) and/or (iv).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <nanofuturet.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: October 12, 2021
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