DECISION

 

Interactive Brokers LLC v. senbin Chen

Claim Number: FA2205001997122

 

PARTIES

Complainant is Interactive Brokers LLC (“Complainant”), represented by Eric J. Shimanoff of Cowan, Liebowitz & Latman, P.C., New York, USA.  Respondent is senbin Chen (“Respondent”), China.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <ibkrcrypto.com>, registered with MAFF Inc.

 

PANEL

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.

 

Sandra J. Franklin as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to the Forum electronically on May 19, 2022; the Forum received payment on May 19, 2022. The Complaint was received in both Chinese and English.

 

On May 24, 2022, MAFF Inc. confirmed by e-mail to the Forum that the <ibkrcrypto.com> domain name is registered with MAFF Inc. and that Respondent is the current registrant of the name.  MAFF Inc. has verified that Respondent is bound by the MAFF 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 24, 2022, the Forum served the Chinese and English language Complaint and all Annexes, including a Chinese language 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@ibkrcrypto.com.  Also on May 24, 2022, the Chinese and English language 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 21, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Sandra J. Franklin 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.

 

RELIEF SOUGHT

Complainant requests that the domain name be transferred from Respondent to Complainant.

 

PRELIMINARY ISSUE: LANGUAGE OF THE PROCEEDINGS

Pursuant to Rule 11(a), the Panel determines that the language requirement has been satisfied and the remainder of the proceedings will be conducted in English.

 

PARTIES' CONTENTIONS

A. Complainant

1.    Respondent’s <ibkrcrypto.com> domain name is confusingly similar to Complainant’s IBKR mark.

 

2.    Respondent does not have any rights or legitimate interests in the <ibkrcrypto.com> domain name.

 

3.    Respondent registered and uses the <ibkrcrypto.com> domain name in bad faith.

 

B.  Respondent did not file a Response.

 

FINDINGS

Complainant, Interactive Brokers LLC, is a multinational brokerage firm that ho9lds a registration for the IBKR mark with the United States Patent and Trademark Office (USPTO) (Reg. No. 3,630,743, registered on June 2, 2009).

 

Respondent registered the <ibkrcrypto.com> domain name on December 4, 2021, and uses it to pass off as Complainant and to compete with Complainant.

 

DISCUSSION

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”).

 

Identical and/or Confusingly Similar

The Panel finds that Complainant has rights in the IBKR mark through its registration of the mark with the USPTO.  See Recreational Equipment, Inc. v. Liu Chan Yuan, FA 2107001954773 (Forum Aug. 9, 2021) (“Registration of a mark with the USPTO is sufficient to demonstrate rights in the mark per Policy ¶ 4(a)(i)”).

 

Respondent’s <ibkrcrypto.com> domain name uses the IBKR mark and adds the descriptive term “crypto” and the “.com” gTLD.  These changes are not sufficient to differentiate a disputed domain name from a mark.  See MTD Products Inc. v. J Randall Shank, FA 1783050 (Forum June 27, 2018) (“The disputed domain name is confusingly similar to Complainant’s mark as it wholly incorporates the CUB CADET mark before appending the generic terms ‘genuine’ and ‘parts’ as well as the ‘.com’ gTLD.”). The Panel therefore finds that Respondent’s <ibkrcrypto.com> domain name is confusingly similar to Complainant’s IBKR mark.

 

The Panel finds that Complainant has satisfied Policy ¶ 4(a)(i).

 

Rights or Legitimate Interests

Once Complainant makes a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), the burden shifts to Respondent to show it does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“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”).

 

Complainant contends that Respondent lacks rights and legitimate interests in the <ibkrcrypto.com> domain name because Respondent is not commonly known by the disputed domain name and is not authorized to use the IBKR mark.  The WHOIS information shows Respondent is known as “senbin Chen.”  Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name, and thus has no rights under Policy ¶ 4(c)(ii).  See Amazon Technologies, Inc. v. Suzen Khan / Nancy Jain / Andrew Stanzy, FA 1741129 (Forum Aug. 16, 2017) (finding that respondent had no rights or legitimate interests in the disputed domain names when the identifying information provided by WHOIS was unrelated to the domain names or respondent’s use of the same); see also Radio Flyer Inc. v. er nong wu, FA 2011001919893 (Forum Dec. 16, 2020) (“Here, the WHOIS information lists “er nong wu” as the registrant and no information suggests Complainant has authorized Respondent to use the RADIO FLYER mark in any way. Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).”)

 

Complainant also argues that Respondent does not use the <ibkrcrypto.com> domain name for a bona fide offering of goods or services or a legitimate noncommercial or fair use because Respondent uses it to pass off as Complainant.  Using a disputed domain name to pass off as a complainant is not a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶ 4(c)(i) or (iii).  See Dell Inc. v. Devesh Tyagi, FA 1785301 (Forum June 2, 2018) (“Respondent replicates Complainant’s website and displays Complainant’s products.  The Panel finds that this use is not a bona fide offering of goods or services under Policy ¶¶ 4(c)(i) & (iii).”)  Complainant provides a screenshot of the website at <ibkrcrypto.com>, showing that Respondent attempts to pass off as Complainant.  The Panel finds that this is not a bona fide offering of goods or services or a legitimate noncommercial or fair use, and thus Respondent has no rights under Policy ¶¶ 4(c)(i) or (iii).

 

Complainant also shows that Respondent uses the disputed domain name to offer competing trading services.  The Panel finds that this is further evidence that Respondent lacks rights under Policy ¶¶ 4(c)(i) and (iii).  See Vanguard Trademark Holdings USA LLC v. Dan Stanley Saturne, FA 1785085 (Forum June 8, 2018) (“Respondent’s use of the disputed domain name does not amount to a bona fide offering of goods or services or a legitimate noncommercial or fair use” where “Respondent is apparently using the disputed domain name to offer for sale competing services.”)

 

The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).

 

Registration and Use in Bad Faith

Complainant asserts that Respondent uses the <ibkrcrypto.com> domain name in bad faith by passing off as Complainant and attracting users for commercial gain.  Under Policy ¶ 4(b)(iv), using a disputed domain name domain name to mimic a complainant’s website and offer competing services evinces bad faith.  See Bittrex, Inc. v. Wuxi Yilian LLC, FA 1760517 (Forum Dec. 27, 2017) (finding bad faith per Policy ¶ 4(b)(iv) whereRespondent 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.”). Therefore, the Panel finds bad faith under Policy ¶ 4(b)(iv).

 

Complainant also contends that Respondent had actual notice of Complainant’s rights in the IBKR mark, due to the fame and notoriety of the mark.  The Panel agrees, noting that Respondent passes off as Complainant, and finds further bad faith under Policy ¶ 4(a)(iii).  See iFinex Inc. v. xu shuaiwei, FA 1760249 (Forum Jan. 1, 2018) (“Respondent’s prior knowledge is evident from the notoriety of Complainant’s BITFINEX trademark as well as from Respondent’s use of its trademark laden domain name to direct internet traffic to a website which is a direct competitor of Complainant”). 

 

The Panel finds that Complainant has satisfied Policy ¶ 4(a)(iii).

 

DECISION

Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.

 

Accordingly, it is Ordered that the <ibkrcrypto.com> domain name be TRANSFERRED from Respondent to Complainant.

 

 

Sandra J. Franklin, Panelist

Dated:  June 22, 2022

 

 

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