Finsa Europe Ltd and Trade Nation PTY and Blackstone Futures PTY v. Garlant Green
Claim Number: FA2112001977848
Complainant is Finsa Europe Ltd and Trade Nation PTY and Blackstone Futures PTY (“Complainant”), represented by Joseph Doughty of Hansel Henson Limited, England. Respondent is Garlant Green (“Respondent”), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <blackstonefutures.live>, (‘the Domain Name”) registered with NameCheap, Inc..
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.
Dawn Osborne as Panelist.
Complainant submitted a Complaint to the Forum electronically on December 21, 2021; the Forum received payment on December 21, 2021.
On December 21, 2021, NameCheap, Inc. confirmed by e-mail to the Forum that the <blackstonefutures.live> 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 December 22, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 11, 2022 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@blackstonefutures.live. Also on December 22, 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 January 16, 2022 pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Dawn Osborne 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, specifically Finsa Europe LTD.
PRELIMINARY ISSUE: MULTIPLE COMPLAINANTS
In the instant proceedings, there are three 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.” The Complainant has submitted evidence that all three complainants being part of the same corporate group have been trading through a web site using the brand BLACKSTONE FUTURES and the Panel finds sufficient nexus in that all three complainants could claim to have rights to the Domain Name in this Complaint.
A. Complainant
The Complainant has common law rights in the brand BLACKSTONE FUTURES used since 2013.
The Domain Name registered in 2021 consists of the Complainant’s BLACKSTONE FUTURES mark verbatim and the gTLD “.live” which does not distinguish the Domain Name from the Complainant’s mark. The Domain Name is therefore identical to the Complainant’s mark for the purposes of the Policy.
Respondent has no rights or legitimate interests in the Domain Name, is not commonly known by it and is not authorized by the Complainant.
The Domain Name have been used for fraudulent purposes for a site purporting to be an official site of the Complainant using the Complainant’s trade mark and its logo albeit in a color variation as a masthead for a log in screen identical to that formerly used by the Complainant in an apparent phishing scheme. This is registration and use in bad faith diverting and confusing Internet users designed to disrupt the Complainant’s business in full knowledge of the Complainant and its rights.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Complainant has common law rights in the brand BLACKSTONE FUTURES used since 2013.
The Domain Name registered in 2021 has been used for a site using the Complainant’s mark and its logo in a slight color variation as a masthead for a site containing a log in screen identical to that previously use by the Complainants in an apparent phishing scheme.
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 Domain Name consists of the BLACKSTONE FUTURES trade mark (in which the Complainant has shown common rights due to trading since 2013) and the gTLD “.live”.
The gTLD “.live” does not serve to distinguish the Domain Name from the Complainant’s mark, which is the distinctive component of the Domain Name. See Red Hat Inc. v. Haecke, FA 726010 (Forum July 24, 2006) (concluding that the redhat.org domain name is identical to the complainant's red hat mark because the mere addition of the gTLD was insufficient to differentiate the disputed domain name from the mark).
Accordingly, the Panel holds that the Domain Name is identical for the purpose of the Policy to a mark in which the Complainant has rights.
Rights or Legitimate Interests
The Complainant has not authorized the use of its mark. The Respondent has not answered this Complaint and there is no evidence or reason to suggest the Respondent is, in fact, commonly known by the Domain Name. 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). The Domain Name has been used for commercial purposes and so is not legitimate noncommercial fair use.
The Domain Name has been used in a fraudulent phishing scheme using the Complainant’s mark and logo in a slight color variation as a masthead for a log in screen identical to one previously used by the Complainant. This is deceptive and confusing and amounts to passing off. As such it cannot amount to the bona fide offering of goods and services. See DaVita Inc. v. Cynthia Rochelo FA 1738034 (Forum July 20, 2017) (finding that ‘Passing off in furtherance of a phishing scheme is not considered a bona fide offering of goods or services or legitimate noncommercial or fair use’). See Ripple Labs Inc. v. Jessie McKoy / Ripple Reserve Fund, FA 1790949 (Forum July 9, 2018) (finding the respondent did not use the domain name to make a bona fide offering of goods or services per Policy ¶ 4(c)(i) or for a legitimate noncommercial or fair use per Policy ¶ 4(c)(iii) where the website resolving from the disputed domain name featured the complainant’s mark).
As such the Panelist finds that the Respondent does not have rights or a legitimate interest in the Domain Name and that the Complainant has satisfied the second limb of the Policy.
Registration and Use in Bad Faith
Diverting Internet users for commercial gain and impersonating a complainant by use of a complainant’s mark and logo in a fraudulent phishing scheme is confusing and disruptive and evinces bad faith registration and use and actual knowledge of the Complainant and its business. See Bittrex, Inc. v. Wuxi Yilian LLC, FA 1760517 (Forum Dec. 27, 2017) (finding bad faith per Policy ¶ 4(b)(iv) where “Respondent registered and uses the <lbittrex.com> domain name in bad faith by directing Internet users to a website that mimics Complainant’s own website in order to confuse users into believing that Respondent is Complainant, or is otherwise affiliated or associated with Complainant.”); see also Klabzuba Oil & Gas, Inc. v. LAKHPAT SINGH BHANDARI, FA1506001625750 (Forum July 17, 2015) (“Respondent uses the <klabzuba-oilgas.com> domain to engage in phishing, which means Respondent registered and uses the domain name in bad faith under Policy ¶ 4(a)(iii).”).
As such, the Panelist believes that the Complainant has made out its case that the Domain Name was registered and used in bad faith and has satisfied the third limb of the Policy under paragraphs 4(b)(iii) and (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 <blackstonefutures.live> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: January 17, 2022
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