Silver Point Capital, L.P. v. FearGod Chinecherem
Claim Number: FA2304002041798
Complainant is Silver Point Capital, L.P. (“Complainant”), represented by Scott Kareff of Schulte Roth & Zabel LLP, New York, USA. Respondent is FearGod Chinecherem (“Respondent”), New York, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <silverpointfx.com> (“Domain Name”), registered with Gransy, s.r.o..
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.
Nicholas J.T. Smith as Panelist.
Complainant submitted a Complaint to Forum electronically on April 26, 2023; Forum received payment on April 27, 2023.
On April 28, 2023, Gransy, s.r.o. confirmed by e-mail to Forum that the <silverpointfx.com> domain name is registered with Gransy, s.r.o. and that Respondent is the current registrant of the name. Gransy, s.r.o. has verified that Respondent is bound by the Gransy, s.r.o. 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 May 1, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 22, 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@silverpointfx.com. Also on May 1, 2023, 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 May 25, 2023, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Nicholas J.T. Smith 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 is a prominent SEC-registered investment adviser founded in 2002. Complainant asserts rights in the SILVER POINT mark based upon registration with the United States Patent and Trademark Office (“USPTO”) (e.g. Reg. No. 3,739,107, registered January 19, 2010). The <silverpointfx.com> domain name is identical or confusingly similar to Complainant’s mark because the Domain Name consists of the entirety of the SILVER POINT Mark, together with the generic abbreviation “FX” as well as the generic top level domain (“gTLD”) “.com”.
Respondent lacks rights or legitimate interests in the <silverpointfx.com> domain name. Respondent is not commonly known by the Domain Name, nor has Respondent been authorized by Complainant to use the SILVER POINT mark. Additionally, Respondent has not used the Domain Name in connection with a bona fide offering of goods or services. Rather, Respondent is passing off as Complainant in order to conduct a phishing scheme.
Respondent registered and uses the <silverpointfx.com> domain name in bad faith. Respondent has made use of a privacy service to conceal its identity. Respondent’s contact information is false. Respondent is passing off as Complainant as part of a phishing scheme. Respondent is confusing customers as to the source of its investment services for commercial gain. Additionally, Respondent had actual knowledge of Complainant’s rights in the SILVER POINT mark at the time of registration as the entity reached at the resolving website purports to be located at Complainant’s business address.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant holds trademark rights for the SILVER POINT mark. The Domain Name is confusingly similar to Complainant’s SILVER POINT mark. Complainant has established that Respondent lacks rights or legitimate interests in the Domain Name and that Respondent registered and has used the Domain Name 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."
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 asserts rights in the SILVER POINT mark through its registration of the mark with the USPTO (e.g., Reg. No. 3,739,107, registered January 19, 2010). Registration with the USPTO can sufficiently establish rights in a mark under Policy ¶ 4(a)(i). See Thermo Electron Corp. v. Xu, FA 713851 (Forum July 12, 2006) (finding that the complainants had established rights in marks where the marks were registered with a national trademark authority).
The Panel finds that the <silverpointfx.com> domain name is confusingly similar to Complainant’s SILVER POINT mark because it wholly incorporates Complainant’s SILVER POINT mark while adding the descriptive abbreviation “fx” (a common abbreviation for “foreign exchange”) and the “.com” gTLD to form the Domain Name. These changes are insufficient to distinguish the Domain Name from the SILVER POINT mark under Policy ¶ 4(a)(i). See Dell Inc. v. pushpender chauhan, FA 1784548 (Forum June 11, 2018) (“Respondent merely adds the term ‘supports’ and a ‘.org’ gTLD to the DELL mark. Thus, the Panel finds Respondent’s disputed domain name is confusingly similar to Complainant’s DELL mark per Policy ¶ 4(a)(i).”); see also Trip Network Inc. v. Alviera, FA 914943 (Forum Mar. 27, 2007) (concluding that the affixation of a gTLD to a domain name is irrelevant to a Policy ¶ 4(a)(i) analysis).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(i).
Complainant alleges that Respondent holds no rights or legitimate interests in the Domain Name. In order for Complainant to succeed under this element, it must first make a prima facie case that Respondent lacks rights and legitimate interests in the Domain Name under Policy ¶ 4(a)(ii), and then the burden shifts to Respondent to show it does have rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006) and AOL LLC v. Gerberg, FA 780200 (Forum Sept. 25, 2006) (“Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.”). The Panel holds that Complainant has made out a prima facie case.
Complainant asserts that Respondent has no rights or legitimate interests in the Domain Name as Respondent is not commonly known by the Domain Name, nor has Complainant authorized Respondent to use the SILVER POINT mark. Respondent has no relationship, affiliation, connection, endorsement or association with Complainant. WHOIS information can help support a finding that a respondent is not commonly known by the disputed domain name, especially where a privacy service has been engaged. See State Farm Mutual Automobile Insurance Company v. Dale Anderson, FA1504001613011 (Forum May 21, 2015) (concluding that because the WHOIS record lists “Dale Anderson” as the registrant of the disputed domain name, the respondent was not commonly known by the <statefarmforum.com> domain name pursuant to Policy ¶ 4(c)(ii)); see also Kohler Co. v. Privacy Service, FA1505001621573 (Forum July 2, 2015) (holding that the respondent was not commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii) where “Privacy Service” was listed as the registrant of the disputed domain name). The WHOIS lists “FearGod Chinecherem” as registrant of record. Coupled with Complainant’s unrebutted assertions as to absence of any affiliation or authorization between the parties, the Panel finds that Respondent is not commonly known by the Domain Name in accordance with Policy ¶ 4(c)(ii).
The Domain Name is presently inactive but prior to the commencement of the proceeding resolved to a website where Respondent purported to offer stock trading and investment services in the United States and United Kingdom in direct competition with Complainant under the SILVER POINT mark. The use of a confusingly similar domain name to redirect to a competing website does not amount to a bona fide offering of goods or services or a legitimate noncommercial or fair use of the name under Policy ¶¶ 4(c)(i) or (iii). See General Motors LLC v. MIKE LEE, FA 1659965 (Forum Mar. 10, 2016) (finding that “use of a domain to sell products and/or services that compete directly with a complainant’s business does not constitute 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).”).
The Panel’s finding that Respondent’s use of the Domain Name is not a bona fide offering of goods or services is further supported by the fact the website to which the Domain Name resolved displays, as its business address, Complainant’s physical address in Connecticut and contained various fraudulent certification documents which copy company number and investment advisor details from Complainant, indicating that Respondent seeks to pass itself off as Complainant.
The Panel finds Complainant has satisfied Policy ¶ 4(a)(ii).
The Panel finds that, at the time Respondent registered the Domain Name, March 1, 2023, Respondent had actual knowledge of Complainant’s SILVER POINT mark, which had been in use for over 20 years at the time and had developed a reputation. The Respondent offered services from the Domain Name that wholly incorporates the SILVER POINT mark that are in direct competition to the Complainant’s services. Furthermore the website at the Domain Name makes reference to Complainant’s physical address and various company details, further indicating actual knowledge of Complainant and its SILVER POINT mark. In the absence of rights or legitimate interests of its own this demonstrates registration in bad faith under Policy ¶ 4(a)(iii).
The Panel finds that Respondent registered and uses the Domain Name in bad faith as Respondent uses the Domain Name to redirect Internet users to Respondent’s own website where Respondent purports to offer stock trading and investment services in direct competition with Complainant. Using a confusingly similar domain name to divert Internet users to a respondent’s competing website can show bad faith registration and use per Policy ¶ 4(b)(iii). See ZIH Corp. v. ou yang lin q, FA1761403 (Forum Dec. 29, 2017) (finding bad faith where the respondent used the infringing domain name to disrupt the complainant’s business by diverting Internet users from the complainant’s website to the respondent’s website where it offered competing printer products). Accordingly, the Panel finds that Respondent registered and uses the Domain Name in bad faith pursuant to Policy ¶ 4(b)(iii).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <silverpointfx.com> domain name be TRANSFERRED from Respondent to Complainant.
Nicholas J.T. Smith, Panelist
Dated: May 26, 2023
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