The Optimism Foundation v. Anna Volkov
Claim Number: FA2212002023196
Complainant is The Optimism Foundation (“Complainant”), represented by Matthew Passmore of Cobalt LLP, California. Respondent is Anna Volkov (“Respondent”), Russia.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <optimismbridgemirror.com>, <optimismgatewayfi.com>, <optimismgatewayofficial.com> and <officialoptimismbridge.com>, registered with Registrar of Domain Names Reg.Ru LLC.
PANEL
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.
Alan L. Limbury, as Panelist.
Complainant submitted a Complaint to Forum electronically on December 7, 2022. Forum received payment on December 7, 2022.
On December 11 and 15, 2022, Registrar of Domain Names Reg.Ru LLC confirmed by e-mail to Forum that the <optimismbridgemirror.com>, <optimismgatewayfi.com>, <optimismgatewayofficial.com> and <officialoptimismbridge.com> domain names are registered with Registrar of Domain Names Reg.Ru LLC and that Respondent is the current registrant of the names. Registrar of Domain Names Reg.Ru LLC has verified that Respondent is bound by the Registrar of Domain Names Reg.Ru LLC registration agreement, which is in Russian, 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 December 15, 2022, Forum served the Complaint and all Annexes, including an English and Russian Written Notice of the Complaint, setting a deadline of January 4, 2023 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@optimismbridgemirror.com, postmaster@optimismgatewayfi.com, postmaster@optimismgatewayofficial.com and postmaster@officialoptimismbridge.com. Also on December 15, 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 January 9, 2023, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Alan L. Limbury 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 names be transferred from Respondent to Complainant.
PRELIMINARY ISSUE: LANGUAGE OF PROCEEDINGS
As noted, the Registrar of Domain Names Reg.Ru LLC registration agreement is in Russian. Pursuant to Rule 11(a), the language of the proceeding in relation to the <optimismbridgemirror.com>, <optimismgatewayfi.com>, <optimismgatewayofficial.com> and <officialoptimismbridge.com> domain names shall be Russian unless otherwise determined by the Panel, having regard to the circumstances of the proceeding.
Complainant requests that the proceeding be conducted in English, noting that the <optimismbridgemirror.com>, <optimismgatewayfi.com>, <optimismgatewayofficial.com> and <officialoptimismbridge.com> domain names are in English and resolve to an English language website. These circumstances satisfy the Panel that Respondent is likely to be proficient in English and that there would be no undue prejudice to Respondent if English were the language of the proceeding.
Further, pursuant to Rule 11(a), the Panel determines that the language requirement has been satisfied through the English and Russian language Written Notice of the Complaint and, absent a Response, determines that the remainder of the proceedings may be conducted in English.
A. Complainant
Complainant, through its OPTIMISM services, provides a secure and trusted software platform to make access to Ethereum cryptocurrency and blockchain transactions easier, scalable, and more secure.
Complainant has common law rights in the OPTIMISM mark. The disputed domain names <optimismbridgemirror.com>, <optimismgatewayfi.com>, <optimismgatewayofficial.com> and <officialoptimismbridge.com> are confusingly similar to Complainant’s mark.
Respondent lacks rights or legitimate interests in the domain names. Respondent is not commonly known by the domain names, nor has Complainant authorized Respondent to use the OPTIMISM mark in any way. Additionally, Respondent fails to use the domain names in connection with a bona fide offering of goods or services or for a legitimate noncommercial or fair use. Instead, Respondent uses them to impersonate Complainant.
Respondent registered the disputed domain names in bad faith with knowledge of Complainant’s rights in the OPTIMISM mark and uses them in bad faith to impersonate Complainant.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has established all the elements entitling it to relief.
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’).
Complainant has shown that, through use in commerce since 2019, including through Complainant’s website at “www.optimism.io”, OPTIMISM has become a distinctive identifier which consumers and numerous media outlets associate with Complainant’s services in relation to open-source access to the Ethereum blockchain. Hence Complainant has common law rights in the OPTIMISM mark.
The Panel finds Respondent’s domain names <optimismbridgemirror.com>, <optimismgatewayfi.com>, <optimismgatewayofficial.com> and <officialoptimismbridge.com> (“the disputed domain names”) to be confusingly similar to Complainant’s mark because they wholly incorporate the mark and differ only through the addition of the descriptive words “bridge”, “mirror”, “gateway”, “fi” (an abbreviation of finance) and “official”, none of which is sufficient to distinguish any of the disputed domain names from the mark. The inconsequential “.com” generic top-level domain (“gTLD”), may be ignored.
Complainant has established this element.
Rights or Legitimate Interests
(i) before any notice to Respondent of the dispute, the use by Respondent of, or demonstrable preparations to use, the disputed domain names or names corresponding to the disputed domain names in connection with a bona fide offering of goods or services; or
(ii) Respondent (as an individual, business or other organization) has been commonly known by the disputed domain names, even if Respondent has acquired no trademark or service mark rights; or
(iii) Respondent is making a legitimate noncommercial or fair use of the disputed domain names, without intent for commercial gain to misleadingly divert customers or to tarnish the trademark or service mark at issue.
All the disputed domain names were registered on November 21, 2022, by which time Complainant has shown that it had established common law rights in the OPTIMISM mark. They each resolve to a website prominently displaying Complainant’s OPTIMISM mark and a copy of a page from Complainant’s website.
These circumstances, together with Complainant’s assertions, are sufficient to constitute a prima facie showing of absence of rights or legitimate interests in respect of the disputed domain names on the part of Respondent. The evidentiary burden therefore shifts to Respondent to show that it does have rights or legitimate interests in the disputed domain names. See Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014). Respondent has made no attempt to do so.
The Panel finds that Respondent has no rights or legitimate interests in respect of the disputed domain names.
Complainant has established this element.
Registration and Use in Bad Faith
Paragraph 4(b) of the Policy sets out four illustrative circumstances, which, though not exclusive, shall be evidence of the registration and use of the disputed domain names in bad faith for purposes of paragraph 4(a)(iii) of the Policy, including:
(iii) Respondent has registered the disputed domain names primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the disputed domain names, Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website or other on-line location, by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website or location or of a product or service on its website or location.
The circumstances set out above in relation to the second element satisfy the Panel that Respondent was fully aware of Complainant’s OPTIMISM mark when Respondent registered the disputed domain names and that Respondent did so primarily for the purpose of disrupting the business of a competitor. Further, Respondent has intentionally attempted to attract, for commercial gain, Internet users to Respondent’s website, by creating a likelihood of confusion with Complainant’s mark as to the source of Respondent’s website and of the services promoted on that website. This demonstrates registration and use in bad faith Policy ¶ 4(b)(iii) and (iv).
Complainant has established this element.
DECISION
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <optimismbridgemirror.com>, <optimismgatewayfi.com>, <optimismgatewayofficial.com> and <officialoptimismbridge.com> domain names be TRANSFERRED from Respondent to Complainant.
Alan L. Limbury, Panelist
Dated: January 11, 2023.
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