The Vanguard Group, Inc. v. Host Master / 1337 Services LLC / egos evgenevich / igor borvolski / iva ludic / Whois Privacy Protection Foundation / Hosting Concepts BV d/b/a Registrar.eu / Dane McBeth / Layton Media LTD.
Claim Number: FA2208002007826
Complainant is The Vanguard Group, Inc. (“Complainant”), represented by The Vanguard Group, Inc., Pennsylvania, USA. Respondent is Host Master / 1337 Services LLC / egos evgenevich / igor borvolski / iva ludic / Whois Privacy Protection Foundation / Hosting Concepts BV d/b/a Registrar.eu / Dane McBeth / Layton Media LTD. (“Respondent”), Saint Kitts and Nevis.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <vanguard-trading.com>, <vanguardtrading.net>, <vanguardtrading.live>, <vtrading-group.com>, <vgroup-trading.pro>, <vtgclientprotal.pro>, <vanguardportal.pro>, <vanguardportal.live>, and <vanguardtrading.co>, registered with Tucows Domains Inc.; Hosting Concepts B.V. D/B/A Registrar.Eu; Ownregistrar, Inc.; Key-Systems Gmbh.
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 10, 2022; the Forum received payment on August 10, 2022.
On August 10, 2022; August 11, 2022, Tucows Domains Inc.; Hosting Concepts B.V. D/B/A Registrar.Eu; Ownregistrar, Inc.; Key-Systems Gmbh confirmed by e-mail to the Forum that the <vanguard-trading.com>, <vanguardtrading.net>, <vanguardtrading.live>, <vtrading-group.com>, <vgroup-trading.pro>, <vtgclientprotal.pro>, <vanguardportal.pro>, <vanguardportal.live>, and <vanguardtrading.co> domain names are registered with Tucows Domains Inc.; Hosting Concepts B.V. D/B/A Registrar.Eu; Ownregistrar, Inc.; Key-Systems Gmbh and that Respondent is the current registrant of the names. Tucows Domains Inc.; Hosting Concepts B.V. D/B/A Registrar.Eu; Ownregistrar, Inc.; Key-Systems Gmbh has verified that Respondent is bound by the Tucows Domains Inc.; Hosting Concepts B.V. D/B/A Registrar.Eu; Ownregistrar, Inc.; Key-Systems Gmbh 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 12, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 14, 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@vanguard-trading.com, postmaster@vanguardtrading.net, postmaster@vanguardtrading.live, postmaster@vtrading-group.com, postmaster@vgroup-trading.pro, postmaster@vtgclientprotal.pro, postmaster@vanguardportal.pro, postmaster@vanguardportal.live, postmaster@vanguardtrading.co. Also on August 12, 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 26, 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 names be transferred from Respondent to Complainant.
PRELIMINARY ISSUE: MULTIPLE RESPONDENTS
Complainant alleges that notwithstanding differences in the domain registration records for the at-issue domain names such domain names are nevertheless effectively controlled by the same person and/or entity. Paragraph 3(c) of the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”) provides that a “complaint may relate to more than one domain name, provided that the domain names are registered by the same domain name holder.”
The domain names in the present dispute are similarly constructed as each domain name contains Complainant’s trademark or an abbreviation thereof and include generic or descriptive terms. The domain names were registered within the same four-month period from March 30, 2022 to July 27, 2022. Seven of the nine at-issue domain names are linked to a fraudulent cryptocurrency investment facility; six of the seven have the same registrar. While it is possible that the domain names’ underlying registrants may or may not differ in the relevant WHOIS data, the at-issue domain names appear to be related to, or controlled by, the same person, persons, or entity. Furthermore, Complainant’s contention that the domain names’ registrants be treated as a single entity is unopposed. Therefore, the Panel will treat the domain names’ registrants as one for the purposes of this proceeding.
A. Complainant
Complainant contends as follows:
Complainant, The Vanguard Group, Inc., offers financial services.
Complainant asserts rights in the mark based upon its registration with multiple agencies including the United States Patent and Trademark Office (“USPTO”).
Respondent’s <vanguard-trading.com>, <vanguardtrading.net>, <vanguardtrading.live>, <vtrading-group.com>, <vgroup-trading.pro>, <vtgclientprotal.pro>, <vanguardportal.pro>, <vanguardportal.live>, and <vanguardtrading.co> domain names are identical or confusingly similar to Complainant’s VANGUARD mark as they incorporate the mark while adding the generic terms “trading”, “group”, “portal”, “protal” (a misspelled version of “portal”), “client” and a generic top-level domain (“gTLD”) including either “.com”, “.net”, “.live” or the “.co” country-code top-level domain (“ccTLD”). Additionally, some of the domain names include a hyphen and/or the letters “v” or “vtg”.
Respondent does not have rights nor legitimate interests in the at-issue domain names. Respondent is not licensed or authorized to use Complainant’s VANGUARD mark and is not commonly known by any of the domain names. Respondent does not use any of the domain names for any bona fide offering of goods or services or legitimate noncommercial or fair use but instead offers fraudulent services competing with Complainant.
Respondent registered and uses the at-issue domain names in bad faith. Respondent uses the domain names to disrupt Complainant’s business while attracting users for commercial gain. Additionally, Respondent registered the disputed domain names with actual knowledge of Complainant’s rights in the VANGUARD mark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has rights in the VANGUARD trademark.
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 VANGUARD trademark.
Respondent uses the at-issue domain name to pretend to offer services which compete with Complainant’s offering.
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 names are each confusingly similar to a trademark in which Complainant has rights.
Complainant demonstrates rights in the VANGUARD mark per Policy ¶ 4(a)(i) through its registration of such mark with the USPTO. See Nintendo of America Inc. v. lin amy, FA 1818485 (Forum Dec. 24, 2018) ("Complainant’s ownership a USPTO trademark registration for the NINTENDO mark evidences Complainant’s rights in such mark for the purposes of Policy ¶ 4(a)(i).”); see also Liberty Global Logistics, LLC v. damilola emmanuel / tovary services limited, FA 1738536 (Forum Aug. 4, 2017) (stating, “Registration of a mark with the USPTO sufficiently establishes the required rights in the mark for purposes of the Policy.”).
Respondent’s <vanguard-trading.com>, <vanguardtrading.net>, <vanguardtrading.live>, <vtrading-group.com>, <vgroup-trading.pro>, <vtgclientprotal.pro>, <vanguardportal.pro>, <vanguardportal.live>, and <vanguardtrading.co> domain names each contain Complainant’s VANGUARD trademark or an identifiable abbreviation thereof and further include generic terms. One domain name includes a hyphen. The differences between each at-issue domain names and Complainant’s VANGUARD trademark are insufficient to distinguish any of the at-issue domain names from VANGUARD for the purposes of Policy ¶ 4(a)(i). Therefore, the Panel concludes that Respondent’s <vanguard-trading.com>, <vanguardtrading.net>, <vanguardtrading.live>, <vtrading-group.com>, <vgroup-trading.pro>, <vtgclientprotal.pro>, <vanguardportal.pro>, <vanguardportal.live>, and <vanguardtrading.co> domain names are each confusingly similar to Complainant’s VANGUARD trademark. See 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.”); see also, Sterling Jewelers Inc. v. KAY KAY YAN, FA 1542616 (Forum Mar. 17, 2014) (finding that Respondent’s <kisskay.com> domain name is confusingly similar to Complainant’s KAY and EVERY KISS BEGINS WITH KAY marks at it constitutes a mere abbreviation.);see also, Skechers U.S.A., Inc. and Skechers U.S.A., Inc. II v. Svensson Viljae, FA 1784650 (Forum June 1, 2018) (finding confusing similarity where “[t]he disputed domain name <skechers-outlet.com> adds a hyphen and the generic term ‘outlet’ to Complainant's registered SKECHERS mark, and appends the ‘.com’ top-level domain.”).
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 each 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 any at‑issue domain name.
The WHOIS information for the at-issue domain names identifies their individual registrants as Host Master / 1337 Services LLC / egos evgenevich / igor borvolski / iva ludic / Whois Privacy Protection Foundation / Hosting Concepts BV d/b/a Registrar.eu / Dane McBeth / Layton Media LTD.” and record before the Panel contains no evidence that otherwise tends to show that Respondent is commonly known by any of the at-issue domain names. The Panel therefore concludes that Respondent is not commonly known by any of the at-issue domain names for the purposes of Policy ¶ 4(c)(ii). See Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Forum July 17, 2006) (concluding that the respondent was not commonly known by the <coppertown.com> domain name where there was no evidence in the record, including the WHOIS information, suggesting that the respondent was commonly known by the disputed domain name).
Respondent uses or used the at-issue domain names to promote high risk foreign exchange, cryptocurrency, and “contract for difference” investment products and services. Respondent’s multi-domain name trading platform utilized significant element of Complainant’s trade dress and has been identified as a scam. Respondent even promoted its phony offering via social media. Nevertheless, Respondent activities may be characterized as competing with Complainant. Respondent’s use of the domain name in this manner constitutes neither a bona fide offering of goods or services under Policy ¶ 4(c)(i) nor a non-commercial or fair use under Policy ¶ 4(c)(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.”).
Given the forgoing, Complainant satisfies its initial burden and demonstrates Respondent’s lack of rights and lack of interests in respect of each at-issue domain name pursuant to Policy ¶ 4(a)(ii).
Respondent’s <vanguard-trading.com>, <vanguardtrading.net>, <vanguardtrading.live>, <vtrading-group.com>, <vgroup-trading.pro>, <vtgclientprotal.pro>, <vanguardportal.pro>, <vanguardportal.live>, and <vanguardtrading.co> domain names were each registered and used in bad faith. As discussed below without limitation, circumstance are present which compel the Panel to conclude that Respondent acted in bad faith regarding each at-issue domain name, pursuant to paragraph 4(a)(iii) of the Policy.
By misappropriating Complainant’s trademark and other intellectual property to use in its domain names and associated websites Respondent attempts to pass itself off as Complainant. Respondent deliberately set out to confound internet users as to the sponsorship of its online fraudulent endeavor and in-fact tricked unwitting consumers into turning over funds to Respondent’s via Respondent’s bogus trading platform. Respondent’s use of the at-issue domain names to deceive internet users disrupts Complainant’s business and shows Respondent’s bad faith registration and use of the at-issue domain names pursuant to Policy ¶¶ 4(b)(iii) and/or (iv). See Ontel Products Corporation v. waweru njoroge, FA1762229 (Forum Dec. 22, 2017) (“Respondent’s primary offering seem to be counterfeits of Complainant’s toy car products. Respondent’s use of the <magictrackscars.com> domain name is thus disruptive to Complainant’s business per Policy ¶ 4(b)(iii)”); see also, Xylem Inc. and Xylem IP Holdings LLC v. YinSi BaoHu YiKaiQi, FA1504001612750 (Forum May 13, 2015) (“The Panel agrees that Respondent’s use of the website to display products similar to Complainant’s, imputes intent to attract Internet users for commercial gain, and finds bad faith per Policy ¶ 4(b)(iv).”); see also, Russell & Bromley Limited v. Li Wei Wei, FA 1752021 (Forum Nov. 17, 2017) (finding the respondent registered and used the at-issue domain name in bad faith because it used the name to pass off as the complainant and offer for sale competitive, counterfeit goods).
Moreover, Respondent registered the at-issue domain names knowing that Complainant had trademark rights in VANGUARD. Respondent’s prior knowledge is evident given VANGUARD’s notoriety; given Respondent’s scheme to pass itself off as Complainant; and given the fact that Respondent registered multiple domain names containing Complainant’s VANGUARD mark or abbreviations of such mark. Respondent’s prior knowledge of Complainant's trademark further indicates that Respondent registered and used the <vanguard-trading.com>, <vanguardtrading.net>, <vanguardtrading.live>, <vtrading-group.com>, <vgroup-trading.pro>, <vtgclientprotal.pro>, <vanguardportal.pro>, <vanguardportal.live>, and <vanguardtrading.co> domain names 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 <vanguard-trading.com>, <vanguardtrading.net>, <vanguardtrading.live>, <vtrading-group.com>, <vgroup-trading.pro>, <vtgclientprotal.pro>, <vanguardportal.pro>, <vanguardportal.live>, and <vanguardtrading.co> domain names be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: September 27, 2022
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