E*Trade Financial Holdings, LLC v. Etradesbot etradesbot / NEPTUNE BIOTECH PRIVATE LIMITED
Claim Number: FA2205001996549
Complainant is E*Trade Financial Holdings, LLC (“Complainant”), represented by Eric J. Shimanoff of Cowan, Liebowitz & Latman, P.C., New York, USA. Respondent is Etradesbot etradesbot / NEPTUNE BIOTECH PRIVATE LIMITED (“Respondent”), India.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <etradesbot.com>, 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 16, 2022. The Forum received payment on May 16, 2022.
On May 23, 2022, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <etradesbot.com> 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 24, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 13, 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@etradesbot.com. Also on May 24, 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 20, 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 and its affiliates provide a suite of digital financial services for investors, traders, financial advisors, stock plan participants, and stock plan administrators. Complainant has rights in the E*TRADE and ETRADE.COM marks through registrations with the United States Patent and Trademark Office (“USPTO”). Respondent’s <etradesbot.com> domain name is identical or confusingly similar to Complainant’s marks.
Respondent lacks rights and legitimate interests in the <etradesbot.com> domain name. Respondent is not commonly known by the domain name, nor has Complainant authorized or licensed Respondent to use its marks, which are famous, in the domain name. Respondent does not use the domain name for any bona fide offering of goods or services, nor a legitimate noncommercial or fair use, but instead attempts to impersonate or pass itself off as Complainant in furtherance of a phishing scheme.
Respondent registered the <etradesbot.com> domain name in bad faith with actual knowledge of Complainant’s rights in the E*TRADE and ETRADE.COM marks and uses it in bad faith to capitalize on the confusing similarity between the domain name and the marks while disrupting Complainant’s business and creating initial interest confusion. Respondent is engaging in opportunistic bad faith by phishing for users’ personal information.
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 E*TRADE and ETRADE.COM marks through registrations with the USPTO (e.g., E*TRADE Reg. No. 1,985,826, registered July 9, 1996 and ETRADE.COM Reg. No. 2,574,989, registered June 4, 2002). The Panel finds Respondent’s <etradesbot.com> domain name to be confusingly similar to each of Complainant’s marks.
As to the E*TRADE mark, the domain name incorporates the entire mark without the asterisk, while adding an “s” and the generic or descriptive term “bot”. These differences are insufficient to distinguish the domain name from the mark. The inconsequential “.com” generic top-level domain (“gTLD”) may be ignored.
As to the ETRADE.COM mark, the domain name inserts an “s” and the term “bot” before the dot in the mark. These differences are insufficient to distinguish the domain name from the mark. Because the “.com” gTLD forms part of this mark, it may be taken into account in determining identity or confusing similarity.
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 <etradesbot.com> domain name was registered on February 1, 2022 in the name Etradesbot etradesbot / NEPTUNE BIOTECH PRIVATE LIMITED. There is no evidence that Respondent has been commonly known by the domain name. The domain name resolves to a website displaying Complainant’s E*TRADE mark and which purports to offer services as Complainant and invites users to input their personal and account information.
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 <etradesbot.com> 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:
(iii) Respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor.
The circumstances set out above in relation to the second element satisfy the Panel that Respondent was fully aware of Complainant’s famous E*TRADE and ETRADE.COM marks when Respondent registered the <etradesbot.com> domain name and did so in order to disrupt the business of Complainant by causing initial interest confusion. This demonstrates registration and use in bad faith under Policy ¶ 4(b)(iii).
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 <etradesbot.com> domain name be TRANSFERRED from Respondent to Complainant.
Alan L. Limbury, Panelist
Dated: June 22, 2022
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