Pantera Advisors LLC v. Kog Bobo
Claim Number: FA2110001968561
Complainant is Pantera Advisors LLC (“Complainant”), represented by Scott Kareff of Schulte Roth & Zabel LLP, New York, USA. Respondent is Kog Bobo (“Respondent”), Washington, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <panteracapitalp.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 October 11, 2021; the Forum received payment on October 12, 2021.
On October 11, 2021, NameCheap, Inc. confirmed by e-mail to the Forum that the <panteracapitalp.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 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@panteracapitalp.com. 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 4, 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 it is a is a prominent SEC-registered investment adviser founded in 2004, focused on ventures, tokens and projects related to blockchain technology, digital currency and crypto assets, namely: (i) venture capital investments in businesses that seek to use blockchain technology, (ii) Initial Coin Offering (“ICO”) funds, the investment objective of which is to achieve capital appreciation and maximize absolute returns by participating in ICOs of digital assets, including digital currencies, cryptocurrencies and tokens (“Digital Assets”) and (iii) investing in, managing and disposing of Origin Tokens issued by Origin Protocol, Inc.. Complainant has rights in the PANTERA mark based upon its registration in the United States in 2019. The mark is registered elsewhere around the world.
Complainant alleges that the disputed domain name is virtually identical and confusingly similar to its PANTERA mark since it incorporates the mark in its entirety and merely adds the generic term “capital,” the letter “p” 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 commonly known by the disputed domain name and is not permitted to use Complainant’s PANTERA mark. Additionally, Respondent fails to use the disputed domain name in connection to a bona fide offering of goods or services or a legitimate noncommercial or fair use; instead Respondent uses the disputed domain name to impersonate one of Complainant’s executive in furtherance of a fraudulent email phishing scheme.
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith. Respondent passes off as Complainant in furtherance of a fraudulent email phishing scheme. Additionally, Respondent had knowledge of Complainant’s rights in the PANTERA mark when the disputed domain name was registered. Finally, the WHOIS information is false.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns the mark PANTERA and uses it to provide investment services related to blockchain and digital currencies.
Complainant’s rights in its mark date back to at least 2019.
The disputed domain name was registered in 2021.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
Respondent has used the disputed domain name to send a fraudulent phishing email impersonating one of Complainant’s employees.
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 PANTERA mark in its entirety, and merely adds the generic term “capital”, the letter “p”, and the “.com” gTLD. Minor additions to a mark, such as a generic or descriptive term, letters, and a gTLD are generally insufficient to overcome confusing similarity between a domain name and a mark per Policy ¶ 4(a)(i). See The Toronto-Dominion Bank v. George Whitehead, FA 1784412 (Forum June 11, 2018) (“[S]light differences between domain names and registered marks, such as the addition of words that describe the goods or services in connection with the mark and gTLDs, do not distinguish the domain name from the mark incorporated therein per Policy ¶ 4(a)(i).”); see also Brooks Sports, Inc. v. chen jiajin, FA 101001930406 (Forum Mar. 30, 2021) (finding that “adding random letters and a gTLD…fails to sufficiently distinguish a disputed domain name); see also LodgeWorks Partners, L.P. v. Isaac Goldstein / POSTE RESTANTE, FA 1717300 (Forum Apr. 5, 2017) (“The Panel agrees; Respondent’s <archerhotels.com> is confusingly similar to complainant’s ARCHER HOTEL mark.”). Thus, the Panel finds that the disputed domain name is confusingly similar to Complainant’s mark under Policy ¶ 4(a)(i).
Complainant has not licensed or otherwise authorized Respondent to use its mark. Respondent is not commonly known by the disputed domain: where a response is lacking, WHOIS information can support a finding that a respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum Sept. 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark.). Here, the WHOIS information of record lists the registrant as “Kog Bobo”. Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).
Respondent used the disputed domain name to impersonate one of Complainant’s executives in furtherance of a fraudulent email phishing scheme. Use of an email address associated with a disputed domain name to pass off as a complainant in furtherance of phishing is not indicative of rights or legitimate interests per Policy ¶¶ 4(c)(i) or (iii). See Abbvie, Inc. v. James Bulow, FA 1701075 (Forum Nov. 30, 2016) (“Respondent uses the at-issue domain name to pose as Complainant’s CEO by means of email addresses at the confusingly similar domain name in an attempt to determine Complainant’s ability to process a transfer. Using the domain name in this manner is neither a bona fide offering of goods and services under Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii)”). Thus, the Panel finds that respondent fails to use the disputed domain name for a bona fide offering of goods and 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 and legitimate interests in the disputed domain name.
Complainant alleges that the WHOIS information is false, but provides no evidence to support this allegation. The Panel finds that Complainant has failed to discharge its burden of proof for this allegation. Consequently, the Panel will not further discuss this allegation.
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, Respondent used the disputed domain name to impersonate one of Complainant’s executives in furtherance of a fraudulent email phishing scheme. Use of a disputed domain name to impersonate a complainant in furtherance of a fraudulent scheme may constitute bad faith pursuant to Policy ¶ 4(b)(iii) and (iv). See Abbvie, Inc. v. James Bulow, FA 1701075 (Forum Nov. 30, 2016) (“Respondent uses the <abbuie.com> domain name to impersonate Complainant’s CEO. Such use is undeniably disruptive to Complainant’s business and demonstrates bad faith pursuant to Policy ¶ 4(b)(iii), and/or Policy ¶ 4(b)(iv)”); see also Microsoft Corporation v. Terrence Green, FA 1661030 (Forum Apr. 4, 2016) (finding the Respondent’s use of the disputed domain names to send fraudulent emails supported a finding of bad faith registration and use under Policy ¶ 4(b)(iii)). Thus 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 <panteracapitalp.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: November 5, 2021
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