Calvert Research and Management v. Adewunmi Simisola / Freeda Noire
Claim Number: FA2205001996315
Complainant is Calvert Research and Management (“Complainant”), represented by Eric J. Shimanoff of Cowan, Liebowitz & Latman, P.C., New York, USA. Respondent is Adewunmi Simisola / Freeda Noire (“Respondent”), Nigeria.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <calvertinvestment.live>, registered with GoDaddy.com, LLC.
PANEL
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.
Alan L. Limbury, as Panelist.
Complainant submitted a Complaint to the Forum electronically on May 13, 2022. The Forum received payment on May 13, 2022.
On May 16, 2022, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <calvertinvestment.live> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, 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 May 16, 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@calvertinvestment.live. Also on May 16, 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 13, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Alan L. Limbury 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, Calvert Research and Management, offers investment services. Complainant asserts rights in the CALVERT INVESTMENTS mark based upon registrations with the United States Patent and Trademark Office (“USPTO”) and the United Kingdom Intellectual Property Office (“UKIPO”). Respondent’s <calvertinvestment.live> domain name is confusingly similar to Complainant’s mark.
Respondent does not have rights or legitimate interests in the <calvertinvestment.live> domain name. Respondent is not licensed or authorized to use Complainant’s CALVERT INVESTMENTS mark and is not commonly known by the domain name. Additionally, Respondent does not use the domain name for any bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent uses the domain name to offer competing services, which appear to be fraudulent, and to cause initial interest confusion. Respondent’s purported investment services are fake or unauthorized and constitute nothing more than a common bitcoin investment scam. Respondent lists on its website that Respondent purports to be based in London, England. However, a search of the UK’s Financial Conduct Authority website shows no company named “Calvert Investment” registered to engage in financial services in the UK. Examination of the site itself shows it is similar to other sites used in bitcoin scams. Moreover, Respondent’s website shows a purported UK Companies House corporate registration certificate for “Calvert Investment” with Company No. 10240926. However, a search for the Company No. 10240926 on the Companies House official website shows that number is associated with a company called “Cloud Minders Limited,” and not with “Calvert Investment,” showing Respondent forged the Companies House certificate on its website.
Respondent registered the <calvertinvestment.live> domain name in bad faith with actual knowledge of Complainant’s rights in the CALVERT INVESTMENTS mark and uses the domain name in bad faith to benefit commercially through diversion of Complainant’s web traffic by offering competing, apparently fraudulent services, and to cause initial interest confusion.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has established all the elements entitling it to relief.
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 shown that it has rights in the CALVERT INVESTMENTS and Design mark based upon registrations with the USPTO (e.g., Reg. No. 3,877,622, registered November 16, 2010) and with the UKIPO, Reg. No. UK00801534901, registered November 3, 2020). The Panel finds Respondent’s <calvertinvestment.live> domain name to be confusingly similar to Complainant’s mark because the distinctive element of the mark is the words CALVERT INVESTMENTS and the domain name contains that element in its entirety, other than the final letter “s”, and merely adds the inconsequential generic top-level domain (“gTLD”) “.live” to form the disputed domain name.
Complainant has established this element.
(i) before any notice to Respondent of the dispute, the use by Respondent of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) Respondent (as an individual, business or other organization) has been commonly known by the domain name, even if Respondent has acquired no trademark or service mark rights; or
(iii) Respondent is making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert customers or to tarnish the trademark or service mark at issue.
The <calvertinvestment.live> domain name was registered on August 9, 2021, long after Complainant has shown that its CALVERT INVESTMENTS and Design mark had become very well-known. It resolves to a website purporting to offer, under the name “CALVERT INVESTMENT”, investment services of the kind offered by Complainant under its CALVERT INVESTMENTS and Design mark.
These circumstances, together with Complainant’s assertions, are sufficient to constitute a prima facie showing of absence of rights or legitimate interests in respect of the domain name on the part of Respondent. The evidentiary burden therefore shifts to Respondent to show that it does have rights or legitimate interests in the <calvertinvestment.live> domain name. See JUUL Labs, Inc. v. Dryx Emerson / KMF Events LTD, FA1906001849706 (Forum July 17, 2019).
Respondent has made no attempt to do so.
The Panel finds that Respondent has no rights or legitimate interests in respect of the domain name.
Complainant has established this element.
Registration and Use in Bad Faith
Paragraph 4(b) of the Policy sets out four illustrative circumstances, which, though not exclusive, shall be evidence of the registration and use of the domain name in bad faith for purposes of paragraph 4(a)(iii) of the Policy, including:
(iv) by using the domain name, Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website or other on-line location, by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website or location or of a product or service on its website or location.
The circumstances set out above in relation to the second element satisfy the Panel that Respondent was fully aware of Complainant’s very well-known CALVERT INVESTMENTS and Design mark when Respondent registered the <calvertinvestment.live> domain name and that Respondent has intentionally attempted 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 of Respondent’s website and of the services promoted on that website. This demonstrates registration and use in bad faith to attract users for commercial gain under Policy ¶ 4(b)(iv).
Complainant has established this element.
DECISION
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <calvertinvestment.live> domain name be TRANSFERRED from Respondent to Complainant.
Alan L. Limbury, Panelist
Dated: June 14, 2022
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