E*Trade Financial Holdings, LLC v. Giles Haider
Claim Number: FA2209002013316
Complainant is E*Trade Financial Holdings, LLC (“Complainant”), represented by Eric J. Shimanoff of Cowan, Liebowitz & Latman, P.C., New York, USA. Respondent is Giles Haider (“Respondent”), Netherlands.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <etrademarkets.net>, (‘the Domain Name’) 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.
Dawn Osborne as Panelist.
Complainant submitted a Complaint to Forum electronically on September 23, 2022; Forum received payment on September 23, 2022.
On September 23, 2022, NameCheap, Inc. confirmed by e-mail to Forum that the <etrademarkets.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 29, 2022, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 19, 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@etrademarkets.net. Also on September 29, 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.
On October 28, 2022 pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Dawn Osborne 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
The Complainant’s contentions can be summarized as follows:
The Complainant and/or members of its group are the owner of trade marks containing E TRADE including E*TRADE registered, inter alia, in the USA with first use recorded as 1992.
The Domain Name registered in 2022 is confusingly similar to the Complainant’s mark incorporating that mark without its asterisk, and adding the
the generic word ‘markets’ and the gTLD .net which do not distinguish the Domain Name from the Complainant’s mark.
The Complainant could not find an entity called ‘E Trade Markets’ on a corporate name search suggesting the Respondent may be offering fake services. Respondent is not commonly known by the Domain Name and has no permission from the Complainant to use the Complainant’s mark. The Domain Name has been used for a site purporting to offer competing services to those of the Complainant using the Complainant’s trade mark in its masthead. This cannot be a bona fide offering of goods and services or a noncommercial legitimate fair use. The Respondent has no rights or legitimate interests in the Domain Name.
The Respondent registered the Domain Name to direct it to a site which the Complainant’s mark incorporated in its masthead to confuse Internet users into believing the web site and the Domain Name are associated with the Complainant. The Domain Name has been registered and used in bad faith to confuse Internet users and disrupt the Complainant’s business.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Complainant and/or members of its group are the owner of trade marks containing E TRADE including E*TRADE registered, inter alia, in the USA with first use recorded as 1992.
The Domain Name registered in 2022 has been used to offer competing financial services.
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 Domain Name consist of the Complainant’s E*TRADE mark (registered in the USA for financial services with first use recorded as 1992), without its asterisk with the addition of the generic term ‘markets’ and the gTLD .net.
The deletion of an asterisk and the addition of a generic term like ‘markets’ does not prevent confusing similarity between the Domain Name and the Complainant's trademarks pursuant to the Policy. See E*Trade Financial Holdings, LLC v. 房云玺, FA2108001960331 (Forum Sep. 20, 2021) (holding that removing an asterisk and adding a generic term to a mark does not differentiate a domain name from a mark under Policy ¶ 4(a)(i).).
The gTLD .net does not serve to distinguish the Domain Name from the Complainant’s mark. See Red Hat Inc v Haecke FA 726010 (Forum July 24, 2006) (concluding that the redhat.org domain name is identical to the complainant's red hat mark because the mere addition of the gTLD was insufficient to differentiate the disputed domain name from the mark).
Accordingly, the Panel holds that the Domain Name is confusingly similar to the Complainant’s registered mark.
As such the Panel holds that Paragraph 4 (a) (i) of the Policy has been satisfied.
Rights or Legitimate Interests
The Complainant has not authorized the use of its mark. There is no evidence or reason apart from the web site attached to the Domain Name to suggest the Respondent is commonly known by the Domain Name. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum September 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark).The use is commercial so it cannot be legitimate noncommercial fair use.
The web site attached to the Domain Name purports to offer competing services to the Complainant using the Complainant’s mark in its masthead. It does not make it clear that there is no connection with the Complainant. The Panel finds this use is confusing. (See Am. Intl Group Inc v Benjamin FA 944242 (Forum May 11, 2007) finding that the Respondent's use of a confusingly similar domain name to advertise services which competed with the Complainant's business did not constitute a bona fide use of goods and services.)
The Respondent has not answered this Complaint or provided any explanation to counter the allegation that the web site is offering fake services and that the entity ‘E Trade Markets’ does not exist.
As such the Panelist finds that the Respondent does not have rights or a legitimate interest in the Domain Name and that the Complainant has satisfied the second limb of the Policy.
Registration and Use in Bad Faith
In the opinion of the Panel the use made of the Domain Name in relation to the Respondent’s site is confusing and disruptive in that visitors to the site might reasonably believe it is connected to or approved by the Complainant as it uses the Complainant’s mark in its masthead to offer competing services. The Panel is entitled to draw adverse inferences from the lack of response from the Respondent. Specifically there has been no attempt to counter the serious allegation that the entity ‘E Trade Markets’ does not exist and the services provided by the Respondent are fake and that the Respondent must have been aware of the Complainant due to the specialized nature of the financial services involved.
Accordingly, the Panel holds that the Respondent has intentionally attempted to attract for commercial gain Internet users to his website by creating a likelihood of confusion with the Complainant's trade mark as to the source, sponsorship, affiliation or endorsement of the web site and services offered on it under Policy 4 (b)(iv) likely to disrupt the business of the Complainant under Policy 4 (b)(iii). See Allianz of AM. Corp v Bond, FA 680624 (Forum June 2, 2006)(finding bad faith registration and use where the respondent was diverting Internet users searching for the complainant to its own website).
As such, the Panelist believes that the Complainant has made out its case that the Domain Name was registered and used in bad faith and has satisfied the third limb of the Policy under para 4(b)(iii) and (iv).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <etrademarkets.net> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: October 28, 2022
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