Citadel LLC and its related entity CE TM Holdings LLC v. Top Domain / Peter Bergamp
Claim Number: FA2110001967850
Complainant is Citadel LLC and its related entity CE TM Holdings LLC (“Complainant”), represented by Melissa F. Nocera of Winston & Strawn LLP, New York, USA. Respondent is Top Domain / Top / Peter Bergamp (“Respondent”), Panama.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain name at issue are <citadelsecurities.center> and <citadelsecurities.network> (“Domain Names”), registered with 1API GmbH.
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.
Complainant submitted a Complaint to the Forum electronically on October 6, 2021; the Forum received payment on October 6, 2021.
On October 7, 2021, 1API GmbH confirmed by e-mail to the Forum that the <citadelsecurities.center> and <citadelsecurities.network> domain names are registered with 1API GmbH and that Respondent is the current registrant of the names. 1API GmbH has verified that Respondent is bound by the 1API GmbH 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 October 13, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 2, 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@citadelsecurities.center, postmaster@citadelsecurities.network. Also on October 13, 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 November 8, 2021, pursuant to Complainant'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 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 Names be transferred from Respondent to Complainant.
In the instant proceedings, there are two Complainants. Paragraph 3(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”) provides that “[a]ny person or entity may initiate an administrative proceeding by submitting a complaint.” The Forum’s Supplemental Rule 1(e) defines “The Party Initiating a Complaint Concerning a Domain Name Registration” as a “single person or entity claiming to have rights in the domain name, or multiple persons or entities who have a sufficient nexus who can each claim to have rights to all domain names listed in the Complaint.” Previous panels have interpreted the Forum’s Supplemental Rule 1(e) to allow multiple parties to proceed as one party where they can show a sufficient link to each other. For example, in Vancouver Org. Comm. for the 2010 Olympic and Paralymic Games & Int’l Olympic Comm. v. Malik, FA 666119 (Forum May 12, 2006), the panel stated:
It has been accepted that it is permissible for two complainants to submit a single complaint if they can demonstrate a link between the two entities such as a relationship involving a license, a partnership or an affiliation that would establish the reason for the parties bringing the complaint as one entity.
In Tasty Baking, Co. & Tastykake Invs., Inc. v. Quality Hosting, FA 208854 (Forum Dec. 28, 2003), the panel treated the two complainants as a single entity where both parties held rights in trademarks contained within the disputed domain names. Likewise, in Am. Family Health Srvs. Group, LLC v. Logan, FA 220049 (Forum Feb. 6, 2004), the panel found a sufficient link between the complainants where there was a license between the parties regarding use of the TOUGHLOVE mark.
The Panel has reviewed the Complaint and is satisfied that that CE TM Holdings LLC is a related entity of Citadel LLC and the holder of the CITADEL SECURITIES mark which it licenses to Citadel LLC. This is sufficient to establish a sufficient nexus or link between the Complainants such that they should be treated as a single entity in this proceeding referred to in the singular, as “Complainant”.
In the instant proceedings, Complainant has alleged that the entities which are listed as the registrants of the Domain Names are effectively controlled by the same person and/or entity, which is operating under 2 aliases. Paragraph 3(c) of the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”) provides that a “complaint may relate to more than one domain name, provided that the domain names are registered by the same domain name holder.”
Complainant has provided detailed evidence of the connections between each of the Domain Names and in particular that: 1) the Domain Names are similar variants of Complainant’s CITADEL SECURITIES mark, indeed they are identical save the differing top-level domains; and 2) the Domain Names resolve to an identical website and 3) the Domain Names were registered on the same day with the same registrar. This evidence, in the Panel’s opinion, strongly suggests that the Domain Names are owned/controlled by a single Respondent; were the named registrants unrelated, it would be unlikely that two unconnected entities would register very similar domain names on the same day and point them to the same website.
In light of these contentions, which none of the identified Respondents deny, the Panel concludes that, on the balance of probabilities, the Domain Names are commonly owned/controlled by a single Respondent who is using multiple aliases. Hereafter the single Respondent will be referred to as “Respondent” for this decision.
A. Complainant
Complainant provides investment services in the United States and around the world. Complainant has rights in the CITADEL SECURITIES mark through its registration of the mark with the United States Patent and Trademark Office (“USPTO”) (e.g. Reg. No. 4,523,732, registered May 6, 2014). Respondent’s <citadelsecurities.center> and <citadelsecurities.network> domain names are confusingly similar to Complainant’s CITADEL SECURITIES mark. Respondent incorporates the mark in its entirety and adds the “.network” or “.center” generic top-level domain (“gTLD”).
Respondent lacks rights or legitimate interests in the <citadelsecurities.center> and <citadelsecurities.network> domain names as Respondent is not commonly known by the Domain Names nor did Complainant authorize Respondent to use the CITADEL SECURITIES mark in any way. Respondent fails to make a bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, the Domain Names resolve to a website (“Respondent’s Website”) that impersonates Complainant by reproducing various design features displayed on Complainant’s official website including the Complainant’s Citadel logo. Visitors to the Respondent’s Website are invited to enter their Citadel account details for the (purported) purpose of logging into their investment accounts. This enables Respondent to engage in a phishing scheme to acquire the account details and passwords of visitors who visit Respondent’s Website under the misapprehension that they are visiting an official website of Complainant.
Respondent registered and used the <citadelsecurities.center> and <citadelsecurities.network> domain names in bad faith by attempting to impersonate Complainant in furtherance of a phishing scheme. Respondent had actual knowledge of Complainant’s CITADEL SECURITIES mark due to the long-standing use and fame of the mark and the use of the Domain Names to impersonate Complainant.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant holds trademark rights for the CITADEL SECURITIES mark. Each of the Domain Names is identical to Complainant’s CITADEL SECURITIES mark. Complainant has established that Respondent lacks rights or legitimate interests in the Domain Names and that Respondent registered and has used the Domain Names 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."
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”).
Complainant has rights in the CITADEL SECURITIES mark through its registration with the USPTO (e.g., Reg. No. 4,523,732, registered May 6, 2014). Registration of a mark with the USPTO is sufficient to establish rights in that mark. See Liberty Global Logistics, LLC v. damilola emmanuel / tovary services limited, FA 1738536 (Forum Aug. 4, 2017) (stating, “Registration of a mark with the USPTO sufficiently establishes the required rights in the mark for purposes of the Policy.”).
The Panel finds that each of the <citadelsecurities.center> and <citadelsecurities.network> domain names are identical to Complainant’s CITADEL SECURITIES mark as each of them fully incorporates the CITADEL SECURITIES mark (absent the space which cannot be incorporated in a domain name) and add a gTLD. These changes are insufficient to distinguish the Domain Names from the CITADEL SECURITIES mark under Policy ¶ 4(a)(i). See MTD Products Inc v. Mike Kernea / Skyline, FA 1775278 (Forum Apr. 19, 2018) (“The mere addition of a gTLD is inconsequential and does not avoid a finding of identity.”); see also Dell Inc. v. Protection of Private Person / Privacy Protection, FA 1681432 (Forum Aug. 1, 2016) (“A TLD (whether a gTLD, sTLD or ccTLD) is disregarded under a Policy ¶ 4(a)(i) analysis because the domain name syntax requires TLDs.”).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(i).
Complainant alleges that Respondent holds no rights or legitimate interests in the Domain Names. In order for Complainant to succeed under this element, it must first make a prima facie case that Respondent lacks rights and legitimate interests in the Domain Names under Policy ¶ 4(a)(ii), and then the burden shifts to Respondent to show it does have rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006) and AOL LLC v. Gerberg, FA 780200 (Forum Sept. 25, 2006) (“Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.”). The Panel holds that Complainant has made out a prima facie case.
Complainant asserts that Respondent has no rights or legitimate interests in the Domain Names as Respondent is not commonly known by the Domain Names, nor has Complainant authorized Respondent to use the CITADEL SECURITIES mark. Respondent has no relationship, affiliation, connection, endorsement or association with Complainant. WHOIS information can help support a finding that a respondent is not commonly known by the disputed domain name, especially where a privacy service has been engaged. See State Farm Mutual Automobile Insurance Company v. Dale Anderson, FA1504001613011 (Forum May 21, 2015) (concluding that because the WHOIS record lists “Dale Anderson” as the registrant of the disputed domain name, the respondent was not commonly known by the <statefarmforum.com> domain name pursuant to Policy ¶ 4(c)(ii)); see also Kohler Co. v. Privacy Service, FA1505001621573 (Forum July 2, 2015) (holding that the respondent was not commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii) where “Privacy Service” was listed as the registrant of the disputed domain name). The WHOIS lists “Top Domain / Top / Peter Bergamp” as registrant of record. Coupled with Complainant’s unrebutted assertions as to absence of any affiliation or authorization between the parties, the Panel finds that Respondent is not commonly known by the Domain Names in accordance with Policy ¶ 4(c)(ii).
The Domain Names resolve to the Respondent’s Website that reproduces much of the content, including website design and logos, of Complainant’s official websites. Respondent’s Website contains a login section where clients (and employees) are directed to provide their official Citadel usernames and passwords, which if provided would enable Respondent to log into their accounts with Complainant. Such conduct is best characterized as “phishing”. Respondent’s use of the Domain Names to impersonate Complainant for the purpose of engaging in a phishing scheme to acquire personal and confidential information 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 Bittrex, Inc. v. Caroline Alves Maia, FA 1796113 (Forum Aug. 6, 2018) (finding the respondent lacked rights and legitimate interests in the domain name because it used the name to resolve to a website virtually identical to the complainant’s to prompt users to enter their login information so that the respondent may gain access to that customer’s cryptocurrency account); see also Caterpillar Inc. v. ruth weinstein, FA 1770352 (Forum Mar. 7, 2018) (“Use of a disputed domain name in an attempt to pass itself off as a complainant and to conduct a phishing scheme is indicative of a failure to use said domain name in connection with a bona fide offer of goods and services per Policy ¶ 4(c)(i) or a legitimate noncommercial or otherwise fair use per Policy ¶ 4(c)(iii).”);
The Panel finds Complainant has satisfied Policy ¶ 4(a)(ii).
The Panel finds that, at the time Respondent registered the Domain Names, February 25, 2021, Respondent had actual knowledge of Complainant’s CITADEL SECURITIES mark. The Respondent uses the Domain Names to pass itself off as Complainant for financial gain or to disrupt Complainant’s business. In the absence of rights or legitimate interests of its own, this demonstrates registration in bad faith under Policy ¶ 4(a)(iii).
The Panel finds that Respondent registered and uses the Domain Names in bad faith as Respondent uses the Domain Names to impersonate Complainant in furtherance of a phishing scheme. Use of a disputed domain name to impersonate a complainant in furtherance of a phishing scheme is evidence of bad faith per Policy ¶ 4(a)(iii). See Google Inc. v. Domain Admin / Whois Privacy Corp., FA1506001622862 (Forum Aug. 10, 2015) (finding that the respondent’s apparent use of the disputed domain name in furtherance of a ‘phishing’ scheme further established its bad faith registration and use of the disputed domain name under Policy ¶ 4(a)(iii)). Accordingly, the Panel finds that Respondent registered and uses the Domain Names in bad faith pursuant to 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 <citadelsecurities.center> and <citadelsecurities.network> domain names be TRANSFERRED from Respondent to Complainant.
Nicholas J.T. Smith, Panelist
Dated: November 9, 2021
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