Agnico Eagle Mines Limited v. Mark Jones
Claim Number: FA2202001986057
Complainant is Agnico Eagle Mines Limited (“Complainant”), represented by ROBIC, LLP, Canada. Respondent is Mark Jones (“Respondent”), Nigeria.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <agnicomining.com>, (‘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 February 28, 2022; the Forum received payment on February 28, 2022.
On February 28, 2022, NameCheap, Inc. confirmed by e-mail to the Forum that the <agnicomining.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 March 2, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 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@agnicomining.com. Also on March 2, 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 March 23, 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.
A. Complainant
The Complainant’s contentions can be summarized as follows:
The Complainant is the owner of the mark AGNICO EAGLE (with logo) registered, inter alia, in Canada for mining services since 2014. AGNICO is a distinctive mark in which the Complainant owns common law rights.
The Domain Name registered in 2021 is confusingly similar to the Complainant’s mark adding only the generic term ‘mining’ and the gTLD “.com” which do not prevent such confusing similarity.
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 has been used for fraudulent purposes for a site purporting to offer competing financial services using the Complainant’s trade mark in a phishing scheme with evidence of consumers that have been the victims of frauds perpetuated by the Respondent which cannot be bona fide use. This is registration and use in bad faith diverting and defrauding Internet users designed to disrupt the Complainant’s business in full knowledge of the Complainant and its rights. Phishing is bad faith per se.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Complainant is the owner of the mark AGNICO EAGLE (with logo) registered, inter alia, in Canada for mining services since 2014.
The Domain Name registered in 2021 has been used to defraud Internet users.
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 Complainant is the owner of the mark AGNICO EAGLE (with logo) registered, inter alia, in Canada for mining services since 2014. AGNICO is a distinctive mark in which the Complainant owns common law rights.
The Domain Name consists of the Complainant's common law AGNICO mark, the generic term ‘mining’ and the gTLD “.com”.
Previous panels have found confusing similarity when a respondent merely adds a generic term to a Complainant's mark. See PG&E Corp. v. Anderson, D2000-1264 (WIPO Nov. 22, 2000) (finding that respondent does not by adding common descriptive or generic terms create new or different marks nor does it alter the underlying mark held by the Complainant). The Panel agrees that the addition of the generic term ‘mining’ to the Complainant's AGNICO mark does not distinguish the Domain Name from the Complainant's AGNICO trademark pursuant to the Policy.
The gTLD “.com” does not serve to distinguish a Domain Name from a Complainant’s mark. 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 confusingly similar to the Complainant’s AGNICO mark.
As such the Panel holds that Paragraph 4(a)(i) of the Policy has been satisfied.
Rights or Legitimate Interests
The Complainant has not authorized the use of its AGNICO mark. There is no evidence or reason to suggest the Respondent is 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 web site attached to the Domain Name uses the Complainant’s AGNICO trade mark in its masthead to offer investment services not connected to the Complainant. The Complainant has produced evidence that Internet users have been deceived into thinking that the Respondent’s site is connected to the Complainant and have been the victims of fraud. The purpose of the site appears to be phishing which cannot be a bona fide offering of goods and services or a legitimate noncommercial fair use. 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 non commercial 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
In the opinion of the panelist the use made of the Domain Name in relation to the Respondent’s site is deceptive and disruptive and visitors to the site have reasonably believed it is connected to or approved by the Complainant. The use of the word ‘mining’ (the business of the Complainant) in the Domain Name shows that the Respondent is aware of the Complainant and its business, rights and services. Accordingly, the Panel holds that the Respondent has intentionally attempted to attract for commercial gain Internet users to his website by creating a likelihood of confusion with the Complainant's AGNICO trade mark as to the source, sponsorship, affiliation or endorsement of that web site or services offered on it likely to disrupt the business of the Complainant. See Allianz of AM. Corp v. Bond, FA 680624 (Forum June 2, 2006) (finding bad faith registration and use where the respondent was diverting Internet users searching for the complainant to its own website).
Further phishing is evidence of bad faith registration and use within the Policy 4(a)(iii). See Klabzuba Oil & Gas, Inc. v. LAKHPAT SINGH BHANDARI, FA 1506001625750 (Forum July 17, 2015).
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 4(b)(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 <agnicomining.com> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: March 24, 2022
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