The Optimism Foundation v. Jame Zold
Claim Number: FA2209002012202
Complainant is The Optimism Foundation (“Complainant”), represented by Tsan Abrahamson of Cobalt LLP, California. Respondent is Jame Zold (“Respondent”), Turkey.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <optimismchain.net>, registered with NameCheap, Inc.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Richard Hill as Panelist.
Complainant submitted a Complaint to Forum electronically on September 15, 2022; Forum received payment on September 15, 2022.
On September 15, 2022, NameCheap, Inc. confirmed by e-mail to Forum that the <optimismchain.net> domain name is registered with NameCheap, Inc. and that Respondent is the current registrant of the name. NameCheap, Inc. has verified that Respondent is bound by the NameCheap, 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 September 16, 2022, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 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@optimismchain.net. Also on September 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, Forum transmitted to the parties a Notification of Respondent Default. Respondent did however send an email to the Forum, see below.
On October 12, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Richard Hill as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that 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, 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 states that it is a global leader in facilitating fair access to the blockchain and to other financial transactions on the Internet, through the development of open-source software that is used in conjunction with the Ethereum blockchain (<www.ethereum.org>). Ethereum is community-run technology intended for cryptocurrency and blockchain transactions. In short, Ethereum is a platform/portal that allows consumers to create digital wealth and to make secure cryptocurrency transactions, and Complainant, through its OPTIMISM services, provides a secure and trusted software platform to make access to digital currency and blockchain transactions easier, scalable, and more secure. Complainant claims rights in the OPTIMISM mark through its application for registration with the United States Patent and Trademark Office (“USPTO”) (e.g. Ser. No. 90,549,900 filed February 26, 2021). Complainant also asserts common law rights in the mark.
Complainant alleges that the disputed domain name is identical or confusingly similar to its OPTIMISM mark because it wholly incorporates the mark and merely adds the generic term “chain”, as well as the “.net” generic top-level domain (“gTLD”). Complainant cites UDRP precedents to support its position.
According to Complainant, Respondent lacks rights or legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name, nor has Complainant authorized or licensed to Respondent any rights in the OPTIMISM mark. Respondent does not use the disputed domain name for a bona fide offering of goods or services, nor for a legitimate non-commercial or fair use. Rather, Respondent uses Complainant’s mark in the disputed domain name in order to impersonate Complainant. Additionally, Respondent uses the disputed domain name to engage in a phishing scheme for commercial gain. Complainant cites UDRP precedents to support its position.
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith. Respondent uses the disputed domain name in order to pass off as Complainant. Further, Respondent uses the confusingly similar nature of the disputed domain name to phish for user’s valuable information for commercial gain. Complainant cites UDRP precedents to support its position.
B. Respondent
Respondent failed to submit a Response in this proceeding. In its email to Forum, Respondent states: “I stopped the hosting and the domain for them, also I'm trying to inform him by telegram for this. Thanks for letting me know for this issue, also If there are anything more to make let me know.”
For the reasons set forth below, the Panel will not make any findings of fact.
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.
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."
The Panel interprets Respondent’s email to Forum as consent to transfer the disputed domain name. Thus, in the present case, the parties have both asked for the domain name to be transferred to Complainant. In accordance with a general legal principle governing arbitrations as well as national court proceedings, this Panel holds that it cannot act nec ultra petita nec infra petita, that is, that it cannot issue a decision that would be either less than requested, nor more than requested by the parties. Since the requests of the parties in this case are identical, the Panel has no scope to do anything other than to recognize the common request, and it has no mandate to make findings of fact or of compliance (or not) with the Policy.
See Malev Hungarian Airlines, Ltd. v. Vertical Axis Inc., FA 212653 (Forum Jan. 13, 2004); see also Boehringer Ingelheim Int’l GmbH v. Modern Ltd. – Cayman Web Dev., FA 133625 (Forum Jan. 9, 2003) (transferring the domain name registration where the respondent stipulated to the transfer); see also Disney Enters., Inc. v. Morales, FA 475191 (Forum June 24, 2005) (“[U]nder such circumstances, where Respondent has agreed to comply with Complainant’s request, the Panel felt it to be expedient and judicial to forego the traditional UDRP analysis and order the transfer of the domain names.”).
For the reasons set forth above, the Panel will not analyze this element of the Policy.
For the reasons set forth above, the Panel will not analyze this element of the Policy.
For the reasons set forth above, the Panel will not analyze this element of the Policy.
Given the common request of the Parties, it is Ordered that the <optimismchain.net> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: October 12, 2022
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