Tradebot Systems, Inc. v. Thompson Rebecca
Claim Number: FA2203001987537
Complainant is Tradebot Systems, Inc. (“Complainant”), represented by Kevin S. Tuttle of Spencer Fane LLP, Missouri, USA. Respondent is Thompson Rebecca (“Respondent”), Nigeria.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <tradebotnetwork.net>, 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.
Paul M. DeCicco, as Panelist.
Complainant submitted a Complaint to the Forum electronically on March 9, 2022; the Forum received payment on March 9, 2022.
On March 9, 2022, NameCheap, Inc. confirmed by e-mail to the Forum that the <tradebotnetwork.net> 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 10, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 30, 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@tradebotnetwork.net. Also on March 10, 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 April 5, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Paul M. DeCicco 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 contends as follows:
Complainant, Tradebot Systems, Inc., uses its TRADEBOT mark in relation to private electronic stock trading services.
Complainant maintains registration of its TRADEBOT mark with the United States Patent and Trademark Office (USPTO).
The <tradebotnetwork.net> domain name is identical or confusingly similar to Complainant’s TRADEBOT mark because it incorporates Complainant’s mark while adding in the term “network” and the “.net” generic top-level domain (“gTLD”) to form a domain name.
Respondent does not have any rights or legitimate interests in the <tradebotnetwork.net> domain name because Respondent is not commonly known by the at-issue domain name nor has Respondent been authorized to use Complainant’s mark. Respondent is not using the domain name in connection with a bona fide offering of goods or services nor for a legitimate noncommercial or fair use because Respondent uses the domain name to offer services that compete with Complainant.
Respondent registered and uses the <tradebotnetwork.net> domain name in bad faith because Respondent disrupts Complainant’s business for its own commercial gain by offering competing services. Further, Respondent uses the domain name to pass off as Complainant.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has trademark rights in the TRADEBOT mark.
Respondent is not affiliated with Complainant and had not been authorized to use Complainant’s trademark in any capacity.
Respondent registered the at‑issue domain name after Complainant acquired rights in the TRADEBOT trademark.
Respondent’s <tradebotnetwork.net> domain name addresses a website offering services competing with services offered by Complainant.
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 at-issue domain name is identical to a trademark in which Complainant has rights.
Complainant’s USPTO trademark registration for TRADEBOT is sufficient to demonstrate Complainant’s rights in a mark under Policy ¶ 4(a)(i). See DIRECTV, LLC v. The Pearline Group, FA 1818749 (Forum Dec. 30, 2018) (“Complainant’s ownership of a USPTO registration for DIRECTV demonstrate its rights in such mark for the purposes of Policy ¶ 4(a)(i).”).
Respondent’s <tradebotnetwork.net> domain name contains Complainant’s TRADEBOT trademark followed by the term “network” with all followed by the “.net” top-level domain name. The differences between Complainant’s TRADEBOT trademark and Respondent’s <tradebotnetwork.net> domain name fail to distinguish the domain name from Complainant’s mark. Therefore, the Panel finds that Respondent’s <tradebotnetwork.net> domain name is confusingly similar to Complainant’s TRADEBOT trademark under Policy ¶ 4(a)(i). See Bloomberg Finance L.P. v. Nexperian Holding Limited, FA 1782013 (Forum June 4, 2018) (“Where a relevant trademark is recognizable within a disputed domain name, the addition of other terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) does not prevent a finding of confusing similarity under the first element.”); see also Trip Network Inc. v. Alviera, FA 914943 (Forum Mar. 27, 2007) (concluding that the affixation of a gTLD to a domain name is irrelevant to a Policy ¶ 4(a)(i) analysis).
Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006). Since Respondent failed to respond, Complainant’s prima facie showing acts conclusively.
Respondent lacks both rights and legitimate interests in respect of the <tradebotnetwork.net> domain name. Respondent is not authorized to use Complainant’s trademark in any capacity and, as discussed below, there are no Policy ¶ 4(c) circumstances from which the Panel might find that Respondent has rights or interests in respect of the at‑issue domain name.
The WHOIS information for the at-issue domain name identifies the registrant of <tradebotnetwork.net> as “Thompson Rebecca” and the record before the Panel contains no evidence that otherwise tends to show that Respondent is commonly known by the <tradebotnetwork.net> domain name. The Panel therefore concludes that Respondent is not commonly known by the at-issue domain name for the purposes of Policy ¶ 4(c)(ii). See Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Forum July 17, 2006) (concluding that the respondent was not commonly known by the <coppertown.com> domain name where there was no evidence in the record, including the WHOIS information, suggesting that the respondent was commonly known by the disputed domain name).
Respondent uses the confusingly similar <tradebotnetwork.net> domain name to address a website that holds Respondent out as a “broker dealer” offering “stocks … trading”, and “fund management services.” Such services compete with services offered by Complainant. Respondent’s use of the at-issue domain name in this manner constitutes neither a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor a non-commercial or fair use under Policy ¶ 4(c)(iii). See Upwork Global Inc. v. Shoaib Malik, FA 1654759 (Forum Feb. 3, 2016) (finding that Complainant provides freelance talent services, and that Respondent competes with Complainant by promoting freelance talent services through the disputed domain’s resolving webpage, which is neither a bona fide offering of goods or services, nor is it a legitimate noncommercial or fair use).
Given the forgoing, Complainant satisfies its initial burden and conclusively demonstrates Respondent’s lack of rights and lack of interests in respect of the at-issue domain name pursuant to Policy ¶ 4(a)(ii).
The at-issue domain name was registered and is being used in bad faith. As discussed below without limitation, there is evidence from which the Panel may conclude that Respondent acted in bad faith pursuant to Policy ¶ 4(a)(iii).
First, Respondent uses the domain name to pass itself off as Complainant in furtherance of diverting internet traffic to Respondent’s competitive website. Notably, Respondent’s <tradebotnetwork.net> website displays Complainant’s genuine physical address further confusing visitors into falsely believing that there is an affiliation between Respondent and Complainant. Respondent’s actions demonstrate Respondent’s bad faith under Policy ¶¶ 4(b)(iii) and (iv)). See LoanDepot.com, LLC v. Kaolee (Kay) Vang-Thao, FA1762308 (Forum Jan. 9, 2018) (Finding that Respondent’s use of the disputed domain name to offer competing loan services disrupts Complainant’s business under Policy ¶ 4(b)(iii)); see also CAN Financial Corporation v. William Thomson / CNA Insurance, FA1401001541484 (Forum Feb. 28, 2014) (finding that the respondent had engaged in bad faith under Policy ¶ 4(b)(iv), by using a confusingly similar domain name to attract Internet users to its own website where it sold competing insurance services); 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.”).
Moreover, Respondent had actual knowledge of Complainant’s rights in the TRADEBOT mark when it registered <tradebotnetwork.net> as a domain name. Respondent’s actual knowledge is evident given the notoriety of Complainant’s trademark and given Respondent’s use of the at-issue domain name and related website to compete with Complainant. Respondent’s registration and use of a confusingly similar domain name with knowledge of Complainant’s trademark rights in such domain name further indicates Respondent’s bad faith pursuant to Policy ¶ 4(a)(iii). See Minicards Vennootschap Onder FIrma Amsterdam v. Moscow Studios, FA 1031703 (Forum Sept. 5, 2007) (holding that respondent registered a domain name in bad faith under Policy ¶ 4(a)(iii) after concluding that respondent had actual knowledge of Complainant's mark when registering the disputed domain name); see also, Univision Comm'cns Inc. v. Norte, FA 1000079 (Forum Aug. 16, 2007) (rejecting the respondent's contention that it did not register the disputed domain name in bad faith since the panel found that the respondent had knowledge of the complainant's rights in the UNIVISION mark when registering the disputed domain name).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <tradebotnetwork.net> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: April 6, 2022
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