Eris Digital Holdings, LLC v. AMIRMOZAM SHIRAZI / SHIRAZI-TECH
Claim Number: FA2208002007246
Complainant is Eris Digital Holdings, LLC (“Complainant”), represented by Andrew J. Avsec of Crowell & Moring LLP, Illinois, USA. Respondent is AMIRMOZAM SHIRAZI / SHIRAZI-TECH (“Respondent”), Illinois, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <erisxdigitaltrading.net>, registered with Tucows Domains 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 August 4, 2022; the Forum received payment on August 4, 2022.
On August 5, 2022, Tucows Domains Inc. confirmed by e-mail to the Forum that the <erisxdigitaltrading.net> domain name is registered with Tucows Domains Inc. and that Respondent is the current registrant of the name. Tucows Domains Inc. has verified that Respondent is bound by the Tucows Domains 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 August 8, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 29, 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@erisxdigitaltrading.net. Also on August 8, 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 September 2, 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, Eris Digital Holdings, LLC, provides various financial services including the trade of digital assets.
Complainant asserts rights in the ERISX mark based upon registration with the United States Patent and Trademark Office (“USPTO”) as well as other trademark agencies worldwide.
Respondent’s <erisxdigitaltrading.net> domain name is confusingly similar to Complainant’s mark because it contains the ERISX mark in its entirety, merely adding the terms “digital”, “trading”, and the generic top-level domain (“gTLD”) “.net” to form the disputed domain name.
Respondent does not have rights or legitimate interests in the <erisxdigitaltrading.net> domain name. Respondent is not licensed or authorized to use Complainant’s ERISX mark and is not commonly known by the at-issue domain name. Instead, Respondent uses the at-issue domain name to impersonate or pass itself off as Complainant in order to perpetrate fraudulent activity.
Respondent registered and uses the <erisxdigitaltrading.net> domain name in bad faith. Respondent engages in a pattern of bad faith registration and use. Additionally, Respondent is attempting to confuse internet users by passing itself off as Complainant to deceptively collect private personal information for financial gain. Finally, Respondent registered the <erisxdigitaltrading.net> domain name with actual knowledge of Complainant’s rights in the ERISX mark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has trademark rights in ERISX.
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 ERISX trademark.
Respondent uses the at-issue domain name pass itself off as Complainant in furtherance of fraud.
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 confusingly similar to a trademark in which Complainant has rights.
Complainant demonstrates rights in the ERISX mark pursuant to Policy ¶ 4(a)(i) through its registration of ERISX with the USPTO as well as other national registries. See Bloomberg Finance L.P. v. Jimmy Yau, FA 1764034 (Forum Jan. 25, 2018) (“The Panel finds that complainant has rights in BLOOMBERG mark under Policy ¶ 4(a)(i) based upon its registration with multiple trademark agencies, including the USPTO.”).
Respondent’s at-issue domain name contains Complainant’s ERISX trademark followed by the terms “digital” and “trading” with all followed by the “.net” top-level. The differences between Respondent’s domain name and Complainant’s trademark are insufficient to distinguish the domain name from Complainant’s ERISX mark for the purposes of Policy ¶ 4(a)(i). Therefore, the Panel concludes that Respondent’s at-issue domain name is confusingly similar to Complainant’s ERISX trademark. See 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)); see also 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.”).
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 at-issue 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. See Navistar International Corporation v. N Rahmany, FA1505001620789 (Forum June 8, 2015) (finding that the respondent was not commonly known by the disputed domain name where the complainant had never authorized the respondent to incorporate its NAVISTAR mark in any domain name registration).
The WHOIS information for the at-issue domain name identifies the domain name’s registrant as “AMIRMOZAM SHIRAZI / SHIRAZI-TECH” and the record before the Panel contains no evidence tending to prove that Respondent is commonly known by the <erisxdigitaltrading.net> domain name. The Panel therefore concludes that Respondent is not commonly known by <erisxdigitaltrading.net> for the purposes of Policy ¶ 4(c)(ii). See H-D U.S.A., LLC, v. ilyas Aslan / uok / Domain Admin ContactID 5645550 / FBS INC / Whoisprotection biz, FA 1785313 (Forum June 25, 2018) (“The publicly available WHOIS information identifies Respondent as ‘Ilyas Aslan’ and so there is no prima facie evidence that Respondent might be commonly known by either of the [<harleybot.bid> and <harleybot.com>] domain names.”).
Respondent’s <erisxdigitaltrading.net>domain name is used so that Respondent may pass itself off as Complainant and thereby defraud third-parties. The at-issue domain name addresses a website displaying Complainant’s mark and logo, as well as the offering of services identical to Complainant’s offerings. Respondent’s use of the <erisxdigitaltrading.net> domain name indicates neither a bona fide offering of goods or services under Policy ¶ 4 (c)(i), nor a non-commercial or fair use pursuant to Policy ¶ 4(c)(iii). See Mortgage Research Center LLC v. Miranda, FA 993017 (Forum July 9, 2007) (“Because [the] respondent in this case is also attempting to pass itself off as [the] complainant, presumably for financial gain, the Panel finds the respondent is not using the <mortgageresearchcenter.org> domain name for 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).”); see also DaVita Inc. v. Cynthia Rochelo, FA 1738034 (Forum July 20, 2017) (”Passing off in furtherance of a phishing scheme is not considered a bona fide offering of goods or services or legitimate noncommercial or fair use.”).
Given the forgoing, Complainant satisfies its initial burden and demonstrates Respondent’s lack of rights and lack of interests in respect of the at-issue domain name under Policy ¶ 4(a)(ii).
Respondent’s <erisxdigitaltrading.net>domain name was registered and used in bad faith. As discussed below without limitation, bad faith circumstances are present which permit the Panel to conclude that Respondent acted in bad faith pursuant to paragraph 4(a)(iii) of the Policy.
First, Respondent has previously suffered an adverse UDRP decisions as a respondent. Respondent’s pattern of cybersquatting suggests Respondent’s bad faith regarding the instant dispute pursuant to Policy ¶ 4(b)(ii). See Webster Financial Corporation and Webster Bank, National Association v. Above.com Domain Privacy, FA1209001464477 (Forum Nov. 30, 2012) (finding where the record reflected that the respondent had been a respondent in other UDRP proceedings in which it was ordered to transfer disputed domain names to various complainants established a pattern of bad faith registration and use of domain names and stood as evidence of bad faith in the registration and use of domain names under Policy ¶ 4(b)(ii)).
Next and as mentioned above regarding rights and legitimate interests, Respondent uses its confusingly similar domain name to pass itself off as Complainant and misdirect internet users seeking Complainant to Respondent’s <erisxdigitaltrading.net> website. The website pretends to be affiliated with Complainant. There Respondent further exploits the goodwill found in Complainant’s trademark by purporting to offer products or services that compete with Complainant’s offering. It appears that Respondent is intent on using the domain name to defraud Complainant’s customers into giving up their private information to Respondent. Notably, using the <erisxdigitaltrading.net> domain name to pass itself off as Complainant to feign an affiliation between Complainant and Respondent when there is none is disruptive to Complainant’s business and demonstrates Respondent’s bad faith registration and use of the at-issue domain name under both Policy ¶ 4(b)(iii) and Policy ¶ 4(b)(iv). See Choice Logistics, Inc. v. Whois Agent c/o Whois Privacy Protection Service, FA1543744 (Forum Apr. 2, 2014) (finding bad faith use and registration where Respondent used the disputed domain name to direct Internet users to a webpage that is a replica of Complainant’s website, where Respondent likely collects personal information from Complainant’s customers); see also, Ripple Labs Inc. v. Jessie McKoy / Ripple Reserve Fund, FA 1790949 (Forum July 9, 2018) (finding bad faith per Policy ¶¶ 4(b)(iii) and (iv) where the respondent used the disputed domain name to resolve to a website upon which the respondent passes off as the complainant and offers online cryptocurrency services in direct competition with the complainant’s business).
Moreover, Respondent registered <erisxdigitaltrading.net> knowing that Complainant had trademark rights in the ERISX mark. Respondent’s actual knowledge of Complainant’s trademark is evident from the notoriety of Complainant’s trademark and from Respondent’s use of the <erisxdigitaltrading.net> to pass itself off as Complainant as discussed elsewhere herein. Respondent’s prior knowledge of Complainant's trademark further indicates that Respondent registered and used the <erisxdigitaltrading.net> domain name in 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").
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <erisxdigitaltrading.net> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: September 6, 2022
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page