Securities Investor Protection Corporation v. Sebastian Gregorian
Claim Number: FA2306002051160
Complainant is Securities Investor Protection Corporation (“Complainant”), represented by Christopher H. LaRosa, District of Columbia, USA. Respondent is Sebastian Gregorian (“Respondent”), Nigeria.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <sipc.finance>, registered with NameCheap, Inc.
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 June 29, 2023; Forum received payment on June 29, 2023.
On June 29, 2023, NameCheap, Inc. confirmed by e-mail to Forum that the <sipc.finance> 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 June 29, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 19, 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@sipc.finance. Also on June 29, 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 July 25, 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, The Securities Investor Protection Corporation is a non-profit membership corporation that administers a quasi-public fund established to provide relief to customers of failed securities broker-dealers placed in liquidation under the Securities Investor Protection Act. Complainant has rights in the SIPC mark based upon registration with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 2,081,146, registered July 22, 1997). The disputed domain name is identical or confusingly similar to Complainant’s mark because the disputed domain name includes the entirety of Complainant’s SIPC mark with the addition of the generic top-level domain (“gTLD”) “.finance”.
ii) Respondent has no legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name and Complainant has not authorized or licensed Respondent any rights in the SIPC mark. Respondent does not use the disputed domain name for any bona fide offering of goods or services or legitimate noncommercial or fair use. Respondent is passing off as Complainant.
iii) Respondent registered and uses the disputed domain name in bad faith. The disputed domain name resolves to a website that impersonates Complainant’s website.
B. Respondent
Respondent did not submit a Response in this proceeding.
1. The disputed domain name was registered on May 11, 2023.
2. Complainant has established rights in the SIPC mark based upon registration with the USPTO (e.g., Reg. No. 2,081,146, registered July 22, 1997).
3. The disputed domain name’s resolving website displays a nearly verbatim copy of Complainant’s official website, but has substituted on the site contact information not associated with 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 SIPC mark (e.g., Reg. No. 2,081,146, registered July 22, 1997) based upon registration with the USPTO. Registration of a mark with the USPTO is a valid showing of rights in a mark. Since Complainant provides evidence of registration of the SIPC mark with the USPTO, the Panel finds that Complainant has established rights in the mark under Policy 4(a)(i).
Complainant argues that the disputed domain name <sipc.finance> is identical or confusingly similar to Complainant’s mark. The addition of just a different gTLD fails to sufficiently distinguish a disputed domain name from a mark per Policy ¶ 4(a)(i). See Roche Therapeutics Inc. v. Williams Shorell, FA 1684961 (Forum Aug. 30, 2016) (“Complainant asserts Respondent’s <boniva.top> domain name is identical to the BONIVA mark. The addition of a generic top- level domain to a mark does not differentiate the domain from said mark under Policy ¶ 4(a)(i).”). The disputed domain name incorporates the entirety of Complainant’s mark SIPC with the addition of the gTLD “.finance.” Therefore, the Panel finds the disputed domain name is confusingly similar to Complainant’s mark per 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 contends Respondent lacks rights or legitimate interests in the disputed domain name since Respondent is not commonly known by the disputed domain name and Complainant has not authorized or licensed to Respondent any rights in the SIPC mark. WHOIS information may be used to determine whether a respondent is commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Amazon Technologies, Inc. v. LY Ta, FA 1789106 (Forum June 21, 2018) (concluding a respondent has no rights or legitimate interests in a disputed domain name where the complainant asserted it did not authorize the respondent to use the mark, and the relevant WHOIS information indicated the respondent is not commonly known by the domain name). Additionally, lack of authorization to use a complainant’s mark may indicate that the respondent is not commonly known by the disputed domain name. See Emerson Electric Co. v. golden humble / golden globals, FA 1787128 (Forum June 11, 2018) (“lack of evidence in the record to indicate a respondent is authorized to use [the] complainant’s mark may support a finding that [the] respondent does not have rights or legitimate interests in the disputed domain name per Policy ¶ 4(c)(ii)”). The WHOIS information for the disputed domain name lists the registrant as “Sebastian Gregorian.” Furthermore, there is no other evidence to suggest that Respondent was authorized to use Complainant’s SIPC mark. As such, the Panel finds Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii).
Complainant claims that Respondent fails to use the disputed domain name in connection with a bona fide offering of goods or services or legitimate noncommercial or fair use due to the fact that Respondent has duplicated and displayed at its website most of the content of SIPC’s official website. Replicating a complainant’s website to impersonate a complaint does not represent a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii). 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 a copy of the disputed domain name’s resolving website, which is a nearly verbatim copy of Complainant’s official website, but has substituted on the site contact information not associated with Complainant. Therefore, the Panel finds that Respondent has failed to use the disputed domain name for a bona fide offering of goods or services or legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (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 contends that Respondent registered and uses the disputed domain name in bad faith since Respondent displays at its resolving website a nearly verbatim copy of Complainant’s official website, but has substituted on the site contact information not associated with Complainant. Redirecting investors and others seeking to contact Complainant unequivocally reflects bad faith under Policy ¶ 4(b)(iv). See Bittrex, Inc. v. Wuxi Yilian LLC, FA 1760517 (Forum Dec. 27, 2017) (finding bad faith per Policy ¶ 4(b)(iv) where “Respondent registered and uses the <lbittrex.com> domain name in bad faith by directing Internet users to a website that mimics Complainant’s own website in order to confuse users into believing that Respondent is Complainant, or is otherwise affiliated or associated with Complainant.”). The Panel recalls that Complainant provides a copy of the disputed domain name’s resolving website, which is a nearly verbatim copy of Complainant’s official website, but has substituted on the site contact information not associated with Complainant. The Panel therefore finds that Respondent registered and uses the disputed domain name in bad faith per Policy ¶ 4(b)(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 <sipc.finance> domain name be TRANSFERRED from Respondent to Complainant.
Ho-Hyun Nahm, Esq., Panelist
Dated: July 31, 2023
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