Altegris Services, LLC v. Victor Kelvin / Optional trades
Claim Number: FA2201001982317
Complainant is Altegris Services, LLC (“Complainant”), represented by Tracy Katz Muhl of Fox, Swibel, Levin & Carroll LLP, Illinois, USA. Respondent is Victor Kelvin / Optional trades (“Respondent”), Nigeria.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <altegris-financial.co>, 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.
James Bridgeman SC as Panelist.
Complainant submitted a Complaint to the Forum electronically on January 27, 2022; the Forum received payment on January 27, 2022.
On January 28, 2022, NameCheap, Inc. confirmed by e-mail to the Forum that the <altegris-financial.co> 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 January 31, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 22, 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@altegris-financial.co. Also on January 31, 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 25, 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 in the ALTEGRIS mark, established by its ownership of the United States trademark registrations described below and alleges that the disputed domain name <altegris-financial.co> is identical and confusingly similar to Complainant’s registered US trademarks and domain name <altegris.com>.
Complainant argues that the disputed domain name incorporates Complainant’s identical mark ALTEGRIS, simply adding the term “-financial” and contends that the additional term is a mere description of services offered, does not alter the commercial impression of the mark, and nor does it obviate the similarity between the disputed domain name and Complainant’s mark.
Complainant then alleges that Respondent has no rights or legitimate interests in the disputed domain name, arguing that there is no record of Respondent having any business presence, let alone any connection with its investment management services, until at least July 2021—approximately eighteen (18) years after Complainant began prominently using its ALTEGRIS mark.
Complainant adds that around the same time, in August 2021, a similar fraudulent domain name was registered with the same registrar (Namecheap), which is the subject of a separate complaint: altegriis.com, with a surreptitious double ‘ii’.
Referring to a screen capture of the website to which the disputed domain name resolves, Complainant submits that it illustrates that Respondent is not using the disputed domain name in connection with a bona fide offering of goods and services or making a legitimate noncommercial or fair use of the domain name, but alleges that instead, Respondent is illegally trading off Complainant’s goodwill to engender a false sense of security in potential customers to induce them to enter into likely fraudulent purchases of financial investments and assets.
The screen capture shows that Respondent falsely claims on its website to be “a legal investment company incorporated in the United Kingdom with companies house [sic] in London” and asserts that it is based in “1200 PROSPECT STREET, SUITE 400 LA JOLLA, CA 92037”.
Complainant submits that these are patently false representations, because Respondent is not a company registered in the United Kingdom, it has no known presence in the United States and the La Jolla address provided is actually Complainant’s own address in California.
Complainant avers that a search of the UK companies public database at <www.gov.uk> reveals that no such company or company number exists in the United Kingdom and Complainant alleges therefore that it follows that Respondent has published forged corporate formation documents on its website.
Complainant points out that the website to which the disputed domain name resolves, invites visitors to open financial accounts by sharing their personal financial information with Respondent, including digital wallet addresses and expresses the concern that there are no means by which a customer could seek legal redress in connection with any funds lost while using Respondent’s service.
Complainant adds that it has also filed a complaint with the FBI through its Internet Crime Complaint Center.
Complainant states that it became aware of Respondent’s activities when it was recently contacted by e-mail from an individual in Switzerland alerting it to Respondent’s fraudulent website posing as Complainant’s legitimate business.
Complainant further argues that Respondent’s website is replete with misstatements, inconsistencies, and outright fabrications, citing for example that that Respondent provided the Registrar with an incomplete, and possibly invalid, address located in the country of Nigeria because the postal code appears to be invalid, and there is no state of “Lome” in Nigeria.
Complainant then alleges that the disputed domain name was registered and being used in bad faith and argues that Respondent has no other discernible or legitimate business presence in the United States or online prior to the date on which the disputed domain name was registered.
Complainant submits that it has prominently used its ALTEGRIS mark since at least July of 2003 and it is extraordinarily unlikely that Respondent chose Complainant’s trademark by mere coincidence when it (1) created its website about 18 years after Complainant’s public use began and (2) falsely claims to be located at the Complainant’s business location in La Jolla, California.
Complainant then alleges that Respondent is using the disputed domain name in bad faith to illegally trade off Complainant’s goodwill by using the ALTEGRIS mark within the disputed domain name and on the website to which it resolves, in order to engender false trust in potential customers to induce them to enter into likely fraudulent transactions based upon unspecified and dubious promises of professional tactics, long-term relationships with investors, and a platform of investment opportunities—which in fact are non-existent.
Complainant adds that Respondent has organized its business to avoid all legal process, operating under a false address physical address and behind a “privacy” wall in its domain registration.
Complainant argues that Respondent is engaged in a scheme to deceive customers into believing that Respondent is somehow associated with Complainant by using Complainant’s marks and requesting that customers use Complainant’s services to create a false sense of security, adding that there is no non-sinister explanation for Respondent’s activities, as evidenced by the numerous false statements to potential customers throughout the Complainant’s website as described above.
Complainant adds that Respondent uses the identical ALTEGRIS mark prominently at the top of its webpage and also uses the same mark in its purported company name: “Copyright ©2021altegris-financial.co.” in a clear attempt to pass itself off as Complainant.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant is a provider of investment management services and is the owner of the following trademark registrations
· United States of America registered trademark ALTEGRIS, registration number 2655064, registered on the Principal Register on November 26, 2002 for services in international class 42;
· United States of America registered trademark ALTEGRIS, registration number 2664638, registered on the Principal Register on December 17, 2002 for goods in international class 16; and
· United States of America registered trademark ALTEGRIS, registration number 2670353, registered on the Principal Register on December 31, 2002.
Complainant also owns the domain name <altegris.com>, which was created on April 20, 2000 and maintains its website at <https://altegris.com/>.
The disputed domain name was registered on July 19, 2021, and resolves to a website which purports to offer financial services to Internet users.
There is no information available about Respondent 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 verification of the registration details of the disputed domain name in the course of this proceeding.
The Registrar confirmed that Respondent, who has availed of a privacy service to conceal his identity on the published WhoIs, 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 ALTEGRIS mark, established by its ownership of the United States trademark and service mark registrations described above.
The disputed domain name <altegris-financial.co> consists of Complainant’s mark in its entirety, in combination with a hyphen, the word “financial” and the country code Top Level Domain “(ccTLD”) extension <.co>.
Complainant’s ALTEGRIS mark is the initial, dominant and only distinctive element in the disputed domain name. The hyphen adds no distinguishing character, nor does the word “financial” which is descriptive of Complainant’s services and the services which Respondent purports to offer.
Neither does the ccTLD extension <.co> add any distinguishing character. It would be considered by Internet users as a necessary technical requirement for a domain name or perhaps an abbreviation of the word “company” or “corporation”.
This Panel finds therefore that the disputed domain name is confusingly similar to the ALTEGRIS 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 a prima facie case that Respondent has no rights legitimate interests in the disputed domain name arguing that
· there is no record of Respondent having any business presence, let alone any connection with its investment management services, until at least July 2021 which was approximately eighteen (18) years after Complainant began prominently using its ALTEGRIS mark;
· the screen capture of the website to which the disputed domain name resolves, annexed to the Complaint, illustrates that Respondent is not using the disputed domain name in connection with a bona fide offering of goods and services or a legitimate noncommercial or fair use, but instead, Respondent is illegally trading off Complainant’s goodwill to engender a false sense of security in potential customers to induce them to enter into likely fraudulent purchases of financial investments and assets;
· Respondent falsely claims on its website to be “a legal investment company incorporated in the United Kingdom with companies house [sic] in London” and falsely asserts that it is based in “1200 PROSPECT STREET, SUITE 400 LA JOLLA, CA 92037”, but these are patently false representations, because Respondent is not a company registered in the United Kingdom, it has no known presence in the United States, and the La Jolla address provided, is actually Complainant’s own address in California;
· a public search of the UK companies database at <www.gov.uk> reveals that no such company or company number exists in the United Kingdom and Respondent has published forged corporate formation documents on its website;
· Respondent’s website is replete with misstatements, inconsistencies, and outright fabrications.
· the website invites visitors to open financial accounts by sharing their personal financial information with Respondent, including digital wallet addresses and as there are no valid contact details on the website, it follows that there is no means by which a customer could seek legal redress in connection with any funds lost while using Respondent’s services;
· Respondent provided the Registrar with an incomplete, and possibly invalid address located in the country of Nigeria because for example, the postal code appears to be invalid, and there is no state of “Lome” in Nigeria.
It is well established that once a complainant makes out a prima facie case that a complainant has no rights or legitimate interests in the domain name at issue, the burden of production shifts to the respondent to prove its rights or legitimate interests.
Respondent has failed to discharge that burden and therefore this Panel must find that Respondent has no rights or legitimate interests in the disputed domain name. Complainant has therefore succeeded in the second element of the test in Policy ¶ 4(a)(ii).
Complainant’s trademark rights predate the registration of the disputed domain name by eighteen years. It is most improbable that the disputed domain name, which contains both Complainant’s distinctive ALTEGRIS mark and the word “financial which references Complainant’s field of business activity, was chosen and registered without knowledge of Complainant and its ALTEGRIS mark.
This finding is support ed by the fact that Complainant has an established Internet presence and maintains an active website at <https://altegris.com/>.
This Panel finds therefore on the balance of probabilities, that the disputed domain name was registered in bad faith with the intention of targeting and taking predatory advantage of Complainant’s mark and goodwill.
The uncontested evidence shows that Respondent is using the disputed domain name as the address of a website that purports to offer financial services which are competing with Complainant’s services.
The similarity of the disputed domain name and Complainant’s ALTEGRIS mark is likely to confuse Internet users and misdirect Internet traffic intended for Complainant.
Additionally, the content of the website to which the disputed domain name resolves is intentionally designed to impersonate Complainant or create the false impression that there is a connection between Complainant and Respondent’s website.
Such intentional use of the disputed domain name in an attempt to attract, for commercial gain, Internet users to Respondent’s website by creating a likelihood of confusion with Complainant's mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s web site and the services purported to be offered by Respondent on his web site constitutes use of the disputed domain name in bad faith for the purposes of the Policy.
This finding is supported by the fact that Responded availed of a privacy service to conceal his identity on the published WhoIs, has not responded to the Complaint, and had not contested Complainant’s allegations that he has published forged corporate registration documents on his website and has provided a false address to the Registrar.
As this Panel has found that the disputed domain name was registered and is being used in bad faith, Complainant has succeeded in the third element of the test in 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 <altegris-financial.co> domain name be TRANSFERRED from Respondent to Complainant.
James Bridgeman SC
Panelist
Dated: February 28, 2022
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