Tiger Global Management, LLC v. Sheng Luo
Claim Number: FA2201001979649
Complainant is Tiger Global Management, LLC (“Complainant”), represented by Scott Kareff of Schulte Roth & Zabel LLP, New York, USA. Respondent is Sheng Luo (“Respondent”), Hong Kong.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <tigerfund.vip>, registered with Go Australia Domains, LLC.
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.
James Bridgeman SC as Panelist.
Complainant submitted a Complaint to the Forum electronically on January 7, 2022; the Forum received payment on January 10, 2022.
On January 10, 2022, Go Australia Domains, LLC confirmed by e-mail to the Forum that the <tigerfund.vip> domain name is registered with Go Australia Domains, LLC and that Respondent is the current registrant of the name. Go Australia Domains, LLC has verified that Respondent is bound by the Go Australia Domains, LLC 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 January 13, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 2, 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@tigerfund.vip. Also on January 13, 2022, 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 February 8, 2022 pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed James Bridgeman SC 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 disputed domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant claims rights established by its status as a licensee of the registered service marks described below and use of the mark on its own behalf and on behalf of its licensor in its financial services and investment business since it was founded in 2001. Complainant has provided third-party documentation to support its claims that it has a substantial international business and asserts that it currently manages approximately $75 billion of assets under the TIGER GLOBAL mark in the United States and worldwide.
Complainant alleges that the disputed domain name <tigerfund.vip> is confusingly similar and virtually identical to the TIGER GLOBAL mark in which it has rights as a licensee arguing that because disputed domain name consists of the word “tiger”, together with the word “fund”, a recipient familiar with Complainant, who visits the website associated with the disputed domain name or encounters emails emanating from the disputed domain name or the related website would be likely to assume that the website or the sender of such email is sponsored by or affiliated with Complainant, or that it is Complainant. See, Pantera Advisors LLC v. Luggard Aus / Xiaomi Company, FA 1909001860639 (Forum Oct. 3, 2019) (stating that the domain name panteracapitals.com is identical or confusingly similar to the complainant’s PANTERA mark because it contains the mark in its entirety, along with the generic term “capital”).
Complainant contends that the omission from the disputed domain name of the unprotectable “global” element of Complainant's TIGER GLOBAL mark does not avoid a finding that the disputed domain name and the TIGER GLOBAL mark are similar, especially since Respondent has merely replaced the geographically descriptive term “global” with the generic term “fund”, which directly relates to, evokes and invokes the investment services business through which Complainant has developed its leading reputation and vast goodwill under the TIGER GLOBAL mark.
Complainant then alleges that Respondent has no rights or legitimate interests in the disputed domain name, asserting that Respondent is not affiliated with Complainant and has not received any permission to use the TIGER GLOBAL mark, as a licensee or otherwise.
Complainant further contends that there is no evidence at the United States Patent and Trademark Office (the “USPTO”) or at the India Trademark Office that Respondent owns or has rights in a trademark or service mark that is identical or even similar to the disputed domain name.
Complainant contends that WHOIS information of record identifies “Sheng Luo” as the registrant of the disputed domain name and submits that the Panel should therefore find that Respondent is not commonly known by the disputed domain name, and thus has no rights under Policy ¶ 4(c)(ii). 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)).
Complainant submits that upon information and belief, Respondent does not actually engage in any legitimate business or commerce under the name “Tiger Global” and Respondent is not commonly known by such a name. See SPTC, Inc. v. Bonanzas.com, Inc. FA 409895 (Forum Mar. 14, 2005) (no rights or legitimate interest in domain name SOTHEBYSAUCTIONS.COM because respondent was not known by SOTHEBY’S name).
Complainant further alleges that Respondent is not making a legitimate noncommercial or fair use of the disputed domain name. Upon information and belief, Respondent is using the disputed domain name with the intent for commercial gain to defraud individuals into providing their private personal information and/or into sending money to Respondent under the fraudulent pretense that Respondent is Complainant and/or that investors could invest in funds managed by Complainant.
Complainant further alleges that upon information and belief, Respondent is or may be conducting a phishing scheme and is using Complainant’s mark and the disputed domain name to dupe individuals into believing that Respondent is operating a legitimate business by usurping Complainant’s identity via the disputed domain name and the website emanating therefrom, a screen capture of which has been submitted in evidence in an annex to the Complaint.
Complainant argues that use of a domain name to pass off as a complainant and phish for Internet users’ personal information or induce fraudulent payments is not considered to be a bona fide offering of goods or services or legitimate noncommercial or fair use. See H-D U.S.A., LLC v. Yoshihiro Nakazawa, FA 1736477 (Forum July 21, 2017) (“A complainant can use assertions of passing off and offering competing goods or services to evince a lack of a bona fide offering of goods or services or a legitimate noncommercial or fair use.”).
Complainant then alleges that the disputed domain name was registered in bad faith arguing that Respondent registered the disputed domain name with actual or constructive knowledge of Complainant’s use of the TIGER GLOBAL mark, as evidenced by its false and misleading use of the mark on Respondent’s website.
Complainant submits that it is inconceivable that Respondent lacked actual and constructive knowledge of Complainant and its TIGER GLOBAL mark because Respondent is, or was, essentially posing as Complainant in connection with its website located at the disputed domain name, claiming to make the same type of investments, to operate in the United States, as well as India as shown in the screen capture annexed to the Complaint.
Complainant adds that Respondent took active steps to conceal its true identity by failing to provide its name in the WHOIS record for the disputed domain name, which is evidence of bad faith.
Complainant further submits that upon information and belief, the information provided in connection with the registration of the disputed domain name contains false and misleading contact information for Respondent.
Complainant then argues that upon information and belief, Respondent has registered the disputed domain name primarily for the purpose of misleading members of the public as part of a phishing scheme to fraudulently obtain private personal information and/or to induce visitors to send money to make an investment based on the falsely pretending to be Complainant or an affiliate of Complainant. In this regard Complainant refers to a redacted copy of an email from an investor in India which has been annexed to the Complaint.
Complainant alleges that upon information and belief, by corresponding with investors under the disputed domain name, Respondent has intentionally attempted to pass itself off as Complainant and/or to attract, for commercial gain, Internet users to Respondent’s e-mail address or other on-line location, by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website, e-mail address or location or of a product or service on Respondent’s website or location.
Complainant adds that Respondent’s use of the disputed domain name is fraudulent, in bad faith, and is likely to confuse, mislead and disrupt investors, customers, suppliers or potential employees of Complainant’s business.
Complainant submits that it is established that phishing schemes can evince bad faith registration and use under the Policy. See 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).”).
In conclusion, Complainant submits that Respondent’s use of the disputed domain name to derive commercial benefit by confusing customers as to the source, sponsorship, affiliation, or endorsement of Respondent’s websites evidences of bad faith under Policy 4(b)(iv). 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.”).
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant uses the TIGER GLOBAL service mark under license from its associated corporation TIGER Management LLC, in connection with its provision of investment services and has provided convincing evidence that Tiger Management LLC holds the following registrations:
· United States of America registered service mark TIGER GLOBAL, registration number 3,919,597, registered on the Principal Register on February 15, 2011 for services in international class 36;
· International registered service mark, designating India, TIGER GLOBAL, registration number 1389873, registered on January 22, 2018 for services in class 36.
Complainant has an established Internet presence and maintains its corporate website at <https://tigerglobal.com>.
The disputed domain name <tigerfund.vip> was registered on October 27, 2021 by an unknown registrant and resolves to a website that prominently displays Complainant’s TIGER GLOBAL mark. The content of the website purports to provide wealth management and other financial services.
There is no information available about Complainant except for that provided in the Complaint, the Registrar’s WhoIs, and the information provided by the Registrar in response to the request by the Forum for details of the registration of the disputed domain name in the course of this proceeding. The Registrar has confirmed that Respondent is the registrant of the disputed domain name.
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 provided convincing evidence that it has rights in the TIGER GLOBAL mark established by license described above and the extensive continuous use of the mark under license in its financial services business.
The disputed domain name <tigerfund.vip> consists of the word “tiger” which is contained in the TIGER GLOBAL mark, with the word “fund” in combination with the generic Top Level Domain “(gTLD”) extension <.vip>.
The word “tiger” which is the initial and only distinctive element in the TIGER GLOBAL mark is also the dominant and only distinctive element in the disputed domain name. The word “global” adds no distinguishing character to the TIGER GLOBAL mark and its absence does not distinguish the disputed domain name.
Furthermore, the word “fund” adds no distinguishing character to the disputed domain name because in the context of the domain name registration and this proceeding, is likely to be considered a reference to financial services which is Complainant’s field of commercial endeavor.
In the context of this proceeding the gTLD extension <.vip> would be considered by Internet users as a necessary technical requirement for a domain name and would not reduce the similarity of the disputed domain name and the TIGER GLOBAL mark in any way.
This Panel finds therefore that the disputed domain name is confusingly similar to the TIGER GLOBAL service mark in which Complainant has rights and Complainant has therefore succeeded in the first element of the test in Policy ¶ 4(a)(i).
Complainant has made out an uncontested prima facie case that Respondent has no rights or legitimate interests in the disputed domain name alleging that:
· Respondent is not affiliated with Complainant;
· Respondent has not received any permission to use the TIGER GLOBAL mark, as a licensee or otherwise;
· there is no evidence at the United States Patent and Trademark Office (the “USPTO”) or at the India Trademark Office that Respondent owns or has rights in a trademark or service mark that is identical or even similar to the disputed domain name;
· the WHOIS information of record identifies “Sheng Luo” as the registrant of the disputed domain name and submits that the Panel should therefore find that Respondent is not commonly known by the disputed domain, and thus has no rights under Policy ¶ 4(c)(ii);
· upon information and belief, Respondent does not actually engage in any legitimate business or commerce under the name “Tiger Global”;
· the screen capture of the website to which the disputed domain name resolves, which has been submitted in evidence in an annex to the Complaint, shows that Respondent is not making a legitimate noncommercial or fair use of the disputed domain name because upon information and belief, Respondent is using the disputed domain name with the intent for commercial gain to defraud individuals into providing their private personal information and/or into sending money to Respondent by fraudulently pretending to be Complainant and/or that investors could invest in funds managed by Complainant;
· upon information and belief, Respondent is, or may be conducting a phishing scheme and is using Complainant’s mark and the disputed domain name to dupe individuals into believing that Respondent is operating a legitimate business by usurping Complainant’s identity via the disputed domain name and the website emanating therefrom;
· such use of the disputed domain name to pass itself off as Complainant and phish for Internet users’ personal information or induce fraudulent payments is not considered to be a bona fide offering of goods or services or legitimate noncommercial or fair use.
It is well established that once a complainant makes out a prima facie case that a respondent has no rights or legitimate interests in a domain name the burden of production shifts to the respondent to prove the existence of such rights or interests.
Respondent has failed to discharge the burden of production and therefore this Panel must find that Respondent has no rights or legitimate interests in the disputed domain name and that Complainant has satisfied the second element of the test in Policy ¶ 4(a)(ii).
Complainant has shown that it has an extensive international reputation in the use of the TIGER GLOBAL mark in connection with its financial services business, with an established Internet presence.
This Panel accepts that when the disputed domain name was recently chosen and registered on October 27, 2021 is improbable that the registrant would have been unaware of Complainant and the services that it provides under the TIGER GLOBAL mark, particularly since Complainant has bult a substantial financial services and maintains an Internet presence with its corporate website at <https://tigerglobal.com>.
On the balance of probabilities therefore, this Panel finds that the disputed domain name was registered in bad faith with knowledge of Complainant’s mark, rights and Internet presence, with the intention of targeting and taking predatory advantage of Complainant’s reputation and goodwill.
The use to which the disputed domain name has been put, as the address of a website that prominently displays the TIGER GLOBAL mark, and purports to offer financial services to the public supports this finding of bad faith registration.
Complainant has made a number of unfounded assertions that the disputed domain name is being used for the purposes of phishing.
While these allegations are plausible they are not proven. The author of the redacted email dated November 22, 2021, which has been adduced in evidence states: ”I’m and Investor from India. As you know India is the country of digital scam. There is an app available with name (sic)Tiger Global which offer (sic) various types of investment and daily returns. Please clarify that that app official (sic) of tiger global or a scam.” This is certainly indicative that there Respondent is engaged in phishing but the author of the email does not state that he was contacted by Respondent as alleged.
However, the screen capture which has been adduced in evidence shows that Respondent is using the disputed domain name which is confusingly similar to the TIGER GLOBAL mark in which Complainant has rights as the address of a website that prominently displays the TIGER MARK and purports to offer financial services including wealth management and pensions that are identical and directly competing with those services offered by Complainant.
It follows that Respondent is purporting to impersonate and pass itself off as Complainant. At best Respondent is taking predatory advantage of Complainant’s mark and goodwill to confuse, attract and divert Internet traffic intended for Complainant.
On the balance of probabilities therefore, this Panel finds that the disputed domain name was registered in bad faith in order to create confusion with the TIGER GLOBAL mark in which Complainant has rights and to take predatory and unfair advantage of Complainants goodwill. Since its registration the disputed domain name has since been used by Respondent in bad faith to confuse, mislead and misdirect Internet users, luring Internet traffic away from Complainant’s website to Respondent’s website purporting to impersonate Complainant and to offer services that directly compete with the services offered by Complainant.
As this Panel has found that the disputed domain names were registered and are being used in bad faith, Complainant has succeeded in the third element of the test in Policy ¶ 4(a)(iii) and is entitled to succeed in its application to have the disputed domain name transferred to it.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <tigerfund.vip> domain name be TRANSFERRED from Respondent to Complainant.
James Bridgeman SC
Panelist
Dated: February 10, 2022
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