Kinross Gold Corporation v. kinross Gold Corporation / finance
Claim Number: FA2305002042985
Complainant is Kinross Gold Corporation (“Complainant”), represented by Griffin Barnett of Perkins Coie LLP, Washington D.C., USA. Respondent is kinross Gold Corporation / finance (“Respondent”), Nigeria.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <kinrossgold.co>, registered with GoDaddy.com, LLC.
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.
Ho-Hyun Nahm, Esq. as Panelist.
Complainant submitted a Complaint to Forum electronically on May 3, 2023; Forum received payment on May 3, 2023.
On May 4, 2023, GoDaddy.com, LLC confirmed by e-mail to Forum that the <kinrossgold.co> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, LLC 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 5, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 25, 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@kinrossgold.co. Also on May 5, 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 30, 2023, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Ho-Hyun Nahm, Esq. 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
i) Complainant, Kinross Gold
Corporation is in the gold mining business. Complainant
asserts rights in the KINROSS mark based upon registration with the United
States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 3,801,642,
registered June 15, 2010). The disputed domain name is confusingly similar
to Complainant’s KINROSS trademark because it incorporates the mark in its entirety
and adds a descriptive word “gold” and a top-level domain name “.co”.
ii) Respondent does not have
rights or legitimate interests in the disputed domain name. Respondent
is not licensed or authorized to use Complainant’s KINROSS mark and is not commonly
known by the disputed domain name. Respondent also does not use the disputed
domain name for any bona fide offering of goods or services or
legitimate noncommercial or fair use. Respondent attempts passing off as
Complainant. Respondent uses the disputed domain name in furtherance of a
phishing scheme.
iii) Respondent registered and uses the disputed domain name in bad faith. Respondent attempts passing off as Complainant for commercial gain. Respondent had actual knowledge of Complainant’s rights in the KINROSS mark. Respondent’s use of a privacy shield and false WHOIS information evince bad faith.
B. Respondent
Respondent did not submit a response in this proceeding.
1. The disputed domain name was registered on April 22, 2023.
2. Complainant has established rights in the KINROSS mark based upon registration with the USPTO (e.g., Reg. No. 3,801,642, registered June 15, 2010).
3. The disputed domain name’s resolving webpage shows use of Complainant’s mark and a copying of Complainant’s previous website.
4. Respondent attempts passing off as Complainant.
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 KINROSS mark based upon registration with the USPTO (e.g., Reg. No. 3,801,642, registered June 15, 2010) and other trademark agencies. Registration of a mark with multiple trademark agencies is a valid showing of rights under Policy ¶ 4(a)(i). Since Complainant has provided evidence of registration of the KINROSS mark with the USPTO, the Panel finds that Complainant has established rights in the mark under Policy ¶ 4(a)(i).
Complainant contends that the disputed domain name <kinrossgold.co> is confusingly similar to Complainant’s KINROSS trademark because it incorporates the mark in its entirety and adds a descriptive word “gold” and a top-level domain name “.co”. Adding or removing descriptive terms or a TLD is insufficient to differentiate a disputed domain name from a complainant’s mark under Policy ¶ 4(a)(i). See The Toronto-Dominion Bank v. George Whitehead, FA 1784412 (Forum June 11, 2018) (“[S]light differences between domain names and registered marks, such as the addition of words that describe the goods or services in connection with the mark and gTLDs, do not distinguish the domain name from the mark incorporated therein per Policy ¶ 4(a)(i).”). The Panel finds that the term “gold” is descriptive in the context of the gold mining and investment services offered by Complainant. Therefore, the Panel finds the disputed domain name is confusingly similar to Complainant’s KINROSS mark under Policy ¶ 4(a)(i).
Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), then the burden shifts to Respondent to show it does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“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”).
Complainant argues that Respondent does not have rights or legitimate interests in the disputed domain name because Respondent is not licensed or authorized to use Complainant’s KINROSS mark and is not commonly known by the disputed domain name. Respondent has not provided evidence indicating it is commonly known by the disputed domain name. Therefore, the Panel finds Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii).
Complainant contends Respondent also does not use the disputed domain name for any bona fide offering of goods or services or legitimate noncommercial or fair use. Respondent attempts passing off as Complainant. A respondent does not use a domain name to make a bona fide offering of goods or services per Policy ¶ 4(c)(i) or for a legitimate noncommercial or fair use per Policy ¶ 4(c)(iii) where the website resolving from the disputed domain name features the complainant’s mark and various photographs related to the complainant’s business. See Dell Inc. v. Devesh Tyagi, FA 1785301 (Forum June 2, 2018) (“Respondent replicates Complainant’s website and displays Complainant’s products. The Panel finds that this use is not a bona fide offering of goods or services under Policy ¶¶ 4(c)(i) & (iii).”). Complainant provides screenshots of the disputed domain name’s resolving webpage showing use of Complainant’s mark and a copying of Complainant’s previous website. The Panel thus finds Respondent does not provide a bona fide offering of goods or services per Policy ¶ 4(c)(i) or for a legitimate noncommercial or fair use per Policy ¶ 4(c)(iii).
The Panel finds that Complainant has made out a prima facie case that arises from the considerations above. All of these matters go to make out the prima facie case against Respondent. As Respondent has not filed a Response or attempted by any other means to rebut the prima facie case against it, the Panel finds that Respondent has no rights or legitimate interests in the disputed domain name.
Complainant argues Respondent attempts passing off as Complainant for commercial gain. Directing Internet users to a website that mimics a complainant’s own website in order to confuse users into believing that respondent is complainant, or is otherwise affiliated or associated with complainant, evinces bad faith pursuant to Policy ¶ 4(b)(iv). See American Cheerleader Media, LLC. v. ilir shoshi / cheer, FA 1592319 (Forum January 20, 2015) (“The Panel here finds that Respondent has engaged in bad faith registration and use pursuant to Policy ¶ 4(b)(iv) as … Respondent utilizes a logo and stylized font identical to Complainant’s own, as well as Complainant’s copyrighted images and text in an attempt to pass itself off as Complainant.”). The Panel recalls Complainant provides screenshots of the disputed domain name’s resolving webpage showing use of Complainant’s mark and a copying of Complainant’s previous website. Therefore, the Panel finds Respondent registered and uses the disputed domain name in bad faith pursuant to Policy ¶ 4(b)(iv).
Complainant asserts Respondent had actual knowledge of Complainant’s rights in the KINROSS mark because of Respondent’s use of the mark. The Panel notes that Complainant is a well-known and highly successful gold mining and gold investment company headquartered in Toronto, Canada. Founded in 1993, Complainant has grown to become a USD $8.9 billion company with mining operations across the world, including in the United States, Canada, Brazil, Chile, and Mauritania. Complainant has made substantial investments to develop a strong online presence through its activities on various social media forums, including through dedicated KINROSS-branded pages on Facebook, Twitter, LinkedIn, and YouTube, among others. Complainant’s Facebook page has over 35,000 “likes” and 38,000 followers, and its Twitter page has nearly 22,000 followers. Complainant’s LinkedIn page has over 214,000 followers. Complainant’s YouTube channel has nearly 2,700 subscribers and has had over 528,000 views. The Panel infers, due to the notoriety of Complainant’s mark and the manner of use of the disputed domain name that Respondent had knowledge of Complainant’s rights in the KINROSS mark at the time of registering the disputed domain name, and finds that Respondent registered the disputed domain in bad faith under 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 <kinrossgold.co> domain name be TRANSFERRED from Respondent to Complainant.
Ho-Hyun Nahm, Esq., Panelist
Dated: June 2, 2023
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