Nasdaq, Inc. v. alexia sophie
Claim Number: FA2205001996254
Complainant is Nasdaq, Inc. (“Complainant”), represented by Monica Riva Talley of Sterne, Kessler, Goldstein & Fox PLLC, District of Columbia, USA. Respondent is alexia sophie (“Respondent”), Malaysia.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <nasdaqmining.com>, 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.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on May 13, 2022; the Forum received payment on May 13, 2022.
On May 13, 2022, NameCheap, Inc. confirmed by e-mail to the Forum that the <nasdaqmining.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 May 17, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 6, 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@nasdaqmining.com. Also on May 17, 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 June 9, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Richard Hill 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 states that it is a financial technology, trading, and information services provider. Complainant’s NASDAQ stock exchange was established as the world’s first electronic stock market in 1971, and made its name as a high-tech exchange. Today, Complainant’s stock market is the second-largest stock exchange in the world. Complainant’s technology powers more than 100 marketplaces in 50 countries; approximately 10% of the world’s security transactions occur on Complainant’s systems. Complainant manages 90 different markets and exchanges from 50 offices in 26 countries across six continents, and in every capital market. In addition to its world renowned exchange services, Complainant provides additional services under its NASDAQ mark, including providing proprietary data to third parties to support their stock trading, research, and investing activities; licensing access to its indexes to investment firms to issue financial products; and offering technology and solutions to support its customers’ investor and public relations activities. Through its portfolio of solutions, Complainant enables customers to plan, optimize, and execute their business using technologies that provide transparency and insight for navigating global capital markets. Millions of Internet users regularly rely on Complainant’s up-to-date information regarding trading, finance, investment, and stock market data, provided via various websites, including <www.nasdaq.com>, among others. Complainant has rights in the NASDAQ mark through its registration in the United States in 1971.
Complainant alleges that the disputed domain name is identical or confusingly similar to its NASDAQ mark as it incorporates the mark in its entirety and merely adds the descriptive term “mining” along with the “.com” generic top-level domain (“gTLD”).
According to Complainant, Respondent lacks rights or legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name, nor has Complainant authorized or licensed Respondent to use its NASDAQ mark in any way. Respondent does not use the disputed domain name for any bona fide offering of goods or services, nor any legitimate noncommercial or fair use, but instead attempts to divert internet users for its own commercial gain by offering competing services at the resolving website. Furthermore, the resolving website solicits users’ personal information and this constitutes a phishing scheme.
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith. Respondent diverts users to a competing website for its own commercial gain while operating a phishing scheme. Additionally, Respondent used a privacy service to shield its identity. Respondent registered the disputed domain name with actual knowledge of Complainant’s rights in the NASDAQ mark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns the mark NASDAQ, with rights dating back to 1971, and uses it to provide financial technology, trading, and information services.
The disputed domain name was registered in 2022.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
The resolving website offers services that compete with those of Complainant, and phishes for users’ personal information.
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 disputed domain name incorporates Complainant’s mark in its entirety, merely adding the generic term “mining” and the “.com” gTLD. Under Policy ¶ 4(a)(i), adding a generic or descriptive term along with a gTLD is does not differentiate the domain name from the mark. See Bloomberg Finance L.P. v. Nexperian Holding Limited, FA 1782013 (Forum June 4, 2018) (“Where a relevant trademark is recognisable 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 Vanguard Group Inc. v. Proven Fin. Solutions, FA 572937 (Forum Nov. 18, 2005) (holding that the addition of both the word “advisors” and the gTLD “.com” did not sufficiently alter the disputed domain name to negate a finding of confusing similarity under Policy ¶ 4(a)(i)). Therefore the Panel finds that the <nasdaqmining.com> domain name is confusingly similar to Complainant’s NASDAQ mark under Policy ¶ 4(a)(i).
Complainant has not licensed or otherwise authorized Respondent to use its NASDAQ mark. Respondent is not commonly known by the disputed domain name: under Policy ¶ 4(c)(ii), where a response is lacking, relevant WHOIS information may demonstrate that a Respondent is not commonly known by a disputed domain name. See Deutsche Lufthansa AG v. Mohamed elkassaby, FA 1801815 (Forum Sept. 17, 2018) (“The WHOIS lists “Mohamed elkassaby” as registrant of record. Coupled with Complainant’s unrebutted assertions as to absence of any affiliation between the parties, the Panel finds that Respondent is not commonly known by the Domain Name in accordance with Policy ¶ 4(c)(ii).”). Here, the WHOIS of record identifies the registrant as “alexia sophie”. Therefore the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).
The resolving website offers services that compete with those of Complainant. Under Policy ¶¶ 4(c)(i) and (iii), using a disputed domain name to divert internet users for commercial gain does not constitute a bona fide offering of goods or services, nor a legitimate noncommercial or fair use. See Summit Group, LLC v. LSO, Ltd., FA 758981 (Forum Sept. 14, 2006) (finding that the respondent’s use of the complainant’s LIFESTYLE LOUNGE mark to redirect Internet users to respondent’s own website for commercial gain does not constitute either a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii)). Therefore the Panel finds that Respondent fails to use the disputed domain name to make a bona fide offering of goods or services, or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii).
Further, Respondent uses the disputed domain name in furtherance of a phishing scheme: Complainant provides evidence showing that the resolving website features a “Register” link, which invites users to enter personal information. Under Policy ¶¶ 4(c)(i) and (iii), using a disputed domain name in furtherance of a phishing scheme does not constitute a bona fide offering of goods or services, nor a legitimate noncommercial or fair use. See Blackstone TM L.L.C. v. Mita Irelant Ltd., FA 1314998 (Forum Apr. 30, 2010) (“The Panel finds that Respondent’s attempt to “phish” for users’ personal information is neither a bona fide offering of goods and services pursuant to Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).”). Therefore, on this ground also, the Panel finds that Respondent fails to use the disputed domain name to make a bona fide offering of goods or services, or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii).
For all the above reasons, the Panel finds that Respondent does not have rights or legitimate interests in the disputed domain name.
Respondent (who did not reply to Complainant’s contentions) has not presented any plausible explanation for its use of Complainant’s mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain name.
Indeed, as already noted, the resolving website offers services that compete with those of Complainant. Under Policy ¶ 4(b)(iv), using a disputed domain name to attract users for commercial gain is evidence of bad faith registration and use. See DatingDirect.com Ltd. v. Aston, FA 593977 (Forum Dec. 28, 2005) (“the Panel finds the respondent is appropriating the complainant’s mark in a confusingly similar domain name for commercial gain, which is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv).”). Therefore the Panel finds that Respondent registered and uses the disputed domain name in bad faith under Policy ¶ 4(b)(iv).
Further, also as already noted, Respondent uses the disputed domain name in furtherance of a phishing scheme. Under Policy ¶ 4(a)(iii), using a disputed domain name to phish for users’ personal information is evidence of bad faith registration and use. See Google Inc. v. Domain Admin / Whois Privacy Corp., FA1506001622862 (Forum Aug. 10, 2015) (finding that the respondent’s apparent use of the disputed domain name in furtherance of a ‘phishing’ scheme further established its bad faith registration and use of the disputed domain name under Policy ¶ 4(a)(iii)). Therefore the Panel finds Respondent registered and uses the disputed domain name in bad faith under 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 <nasdaqmining.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: June 10, 2022
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