DECISION

 

National Futures Association v. lihh

Claim Number: FA2309002060938

PARTIES

Complainant is National Futures Association ("Complainant"), USA, represented by Thomas M Williams of Barack Ferrazzano Kirschbaum & Nagelberg LLC, Illinois, USA. Respondent is lihh ("Respondent"), Taiwan.

 

REGISTRAR AND DISPUTED DOMAIN NAMES 

The domain names at issue are <nfafirsteconomy.com>, <nfaleadworld.com> and <nfaeconomicsphere.com>, registered with OwnRegistrar, Inc..

 

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.

 

Ho-Hyun Nahm, Esq. as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to Forum electronically on September 8, 2023; Forum received payment on September 8, 2023.

 

On September 9, 2023, OwnRegistrar, Inc. confirmed by e-mail to Forum that the <nfafirsteconomy.com>, <nfaleadworld.com> and <nfaeconomicsphere.com> domain names are registered with OwnRegistrar, Inc. and that Respondent is the current registrant of the names. OwnRegistrar, Inc. has verified that Respondent is bound by the OwnRegistrar, 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 19, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 10, 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@nfafirsteconomy.com, postmaster@nfaleadworld.com, postmaster@nfaeconomicsphere.com. Also on September 19, 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 October 11, 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.

 

RELIEF SOUGHT

Complainant requests that the domain names be transferred from Respondent to Complainant.

 

PARTIES' CONTENTIONS

A. Complainant

i) Complainant, National Futures Association's purpose is to safeguard the integrity of the derivatives markets, protect investors, and ensure that NFA members abide by NFA's requirements and meet their regulatory responsibilities. Complainant has rights in the NFA mark through Complainant's registration of the mark with the United States Patent and Trademark Office ("USPTO") (e.g., Reg. No. 1,161,287, registered July 14, 1981). The disputed domain names are confusingly similar to Complainant's mark as they incorporate the mark in their entirety and add generic or descriptive terms along with the ".com" generic top-level domain ("gTLD").

 

ii) Respondent does not have rights or legitimate interests in the disputed domain names because Complainant has not licensed or authorized Respondent to use the NFA mark and Respondent is not commonly known by the disputed domain names. Additionally, Respondent does not use the disputed domains for any bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent uses the disputed domain names to impersonate Complainant in connection with a phishing scheme.

 

iii) Respondent registered and uses the disputed domain names in bad faith. Respondent's use of the domain names for websites displaying the NFA mark in a manner that impersonates Complainant in connection with phishing demonstrates bad faith registration and use. Respondent had knowledge of Complainant's NFA mark when it registered the disputed domain names. 

 

B. Respondent

Respondent did not submit a Response in this proceeding.

 

FINDINGS

1. The disputed domain names <nfafirsteconomy.com> and <nfaleadworld.com> were registered on August 5, 2023; and the disputed domain name <nfaeconomicsphere.com> was registered on August 6, 2023.

 

2. Complainant has established rights in the NFA mark  through Complainant's registration of the mark with the USPTO (e.g., Reg. No. 1,161,287, registered July 14, 1981).

 

3. The disputed domain names' resolving websites prominently display Complainant's NFA logo.

 

4. The disputed domain names' resolving websites contain a purported "login" page displaying Complainant's logo and a login interface with fields for entering an account name and password.

 

5. Shortly after NFA's discovery of the NFA logo appearing on these webpages, the content on each of the three webpages changed with the NFA logo being replaced by a new logo.

 

6. Respondent's recent activities have caused actual confusion in the marketplace. Some consumers receiving the inquiries from Respondent have contacted Complainant to inquire further or to complain.

 

DISCUSSION

Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted and 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").

 

Identical and/or Confusingly Similar

Complainant asserts rights in the NFA mark  through Complainant's registration of the mark with the USPTO (e.g., Reg. No. 1,161,287, registered July 14, 1981). Registration of a mark with the USPTO is sufficient to demonstrate rights in the mark per Policy ¶ 4(a)(i). As Complainant provides evidence of trademark registration, the Panel finds Complainant has established rights in the NFA mark per Policy ¶ 4(a)(i).

 

Complainant argues that the disputed domain names <nfafirsteconomy.com>, <nfaleadworld.com> and <nfaeconomicsphere.com> are confusingly similar to Complainant's NFA mark as they incorporate the mark in their entirety and add generic or descriptive terms along with the ".com" gTLD. Adding generic and/or descriptive terms along with a gTLD is generally considered insufficient in differentiating a disputed domain name from the mark it incorporates under Policy ¶ 4(a)(i). See Ant Small and Micro Financial Services Group Co., Ltd. v. Ant Fin, FA 1759326 (Forum Jan. 2, 2018) ("Respondent's <antfinancial-investorrelations.com> Domain Name is confusingly similar to Complainant's ANT FINANCIAL mark.  It incorporates the mark entirely.  It adds a hyphen, the descriptive terms "investor relations," and the ".com" gTLD, but these additions are insufficient to distinguish the Domain name from complainant's mark for the purposes of Policy ¶ 4(a)(i).").

 

The Panel notes that the disputed domain names add the generic terms "first economy," "lead world" and "economic sphere" to Complainant's NFA mark. Therefore, the Panel finds each of the disputed domain names is confusingly similar to Complainant's NFA mark under Policy ¶ 4(a)(i).

 

Rights or Legitimate Interests

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 names as Respondent is not commonly known by the disputed domain names nor has Complainant authorized or licensed to Respondent any rights in the NFA mark. When a response is lacking, 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. Suzen Khan / Nancy Jain / Andrew Stanzy, FA 1741129 (Forum Aug. 16, 2017) (finding that respondent had no rights or legitimate interests in the disputed domain names when the identifying information provided by WHOIS was unrelated to the domain names or respondent's use of the same).  In addition, lack of authorization to use a complainant's mark may indicate that the respondent is not commonly known by the disputed domain name.  See SPTC, Inc. and Sotheby's v. Tony Yeh shiun, FA 1810835 (Forum Nov. 13, 2018) (finding no rights or legitimate interests in the <sothebys.email> domain name where the WHOIS identified Respondent as "Tony Yeh shiun,"  Complainant never authorized or permitted Respondent to use the SOTHEBY'S mark, and Respondent failed to submit a response.).  The unmasked WHOIS information for the disputed domain names lists the registrant as "lihh" and Complainant asserts there is no other evidence to suggest that Respondent was authorized to use the NFA mark. Therefore, the Panel finds Respondent is not commonly known by the disputed domain names per Policy ¶ 4(c)(ii).

 

Next, Complainant argues that Respondent fails to use the disputed domain names in connection with a bona fide offering of goods or services or legitimate noncommercial or fair use as Respondent passes off as Complainant for purposes of phishing for users' account information.  Under Policy ¶¶ 4(c)(i) and (iii), panels have found that respondent's attempts to use a disputed domain name to pass itself off as complainants is not a bona fide offering of goods or services or legitimate noncommercial or fair use.  See DaVita Inc. v. Cynthia Rochelo, FA 1738034 (Forum July 20, 2017) ("Passing off in furtherance of a phishing scheme is not considered a bona fide offering of goods or services or legitimate noncommercial or fair use.").  Complainant provides screenshots of Respondent's resolving websites, which prominently display Complainant's NFA logo. The disputed domain names' resolving websites contain a purported "Login" page displaying Complainant's logo, where users are asked to insert account login credentials. The Panel therefore finds the use of the disputed domain names to impersonate Complainant in connection with the phishing scheme fails to make a bona fide offering of goods or services or a legitimate noncommercial or fair use per 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 names.

 

Registration and Use in Bad Faith

Complainant contends Respondent registered and uses the disputed domain names in bad faith as Respondent registered it to pass off as Complainant in order to confuse users into thinking that Respondent is Complainant or associated with Complainant. Registration and use of a domain name in order to confuse users can be evidence of bad faith per Policy ¶ 4(b)(iii).  See Bittrex, Inc. v. Wuxi Yilian LLC, FA 1760517 (Forum December 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."); see also Nw. Airlines, Inc. v. Koch, FA 95688 (Forum Oct. 27, 2000) ("[T]he selection of a domain name [<northwest-airlines.com>] which entirely incorporates the name of the world's fourth largest airline could not have been done in good faith"). The Panel recalls Complainant provides screenshots of Respondent's resolving websites using Complainant's NFA logo with a login interface with fields for entering an account name and password. The Panel therefore finds that Respondent passes itself off as Complainant, and thus it registered and uses the disputed domain names in bad faith per Policy ¶ 4(b)(iii).

 

Further, Complainant argues Respondent registered and uses the disputed domain names to impersonate Complainant in connection with a phishing scheme.  Complainant points out that although the NFA logo has since been replaced or hidden, Complainant remains concerned that unlawful or infringing content continues to exist behind the login screen of these webpages. The Panel observes that registering and using a disputed domain name that fraudulently phishes for personal information may be evidence of bad faith.  See Google Inc. v. Domain Admin / Whois Privacy Corp., FA1506001622862 (Forum Aug. 10, 2015) (finding that the respondent's apparent use of the disputed domain name in furtherance of a 'phishing' scheme further established its bad faith registration and use of the disputed domain name under Policy ¶ 4(a)(iii)).  The Panel recalls that Complainant provides screenshots of Respondent's resolving websites requesting users' login credentials. The Panel therefore finds Respondent registered and uses the disputed domain names in bad faith per Policy ¶ 4(a)(iii).

 

Finally, Complainant argues Respondent registered the disputed domain names with knowledge of Complainant's rights in the NFA mark based on Respondent's use of Complainant's NFA logo thereby impersonating Complainant. While constructive knowledge is insufficient for a finding of bad faith, actual knowledge of a complainant's rights in a mark at registration and may demonstrate bad faith under Policy ¶ 4(a)(iii). See The Am. Auto. Assoc., Inc. v. Zag Media Corp., FA 1226952 (Forum Nov. 13, 2008) ("Mere constructive knowledge is insufficient to support a finding of bad faith."); see also AutoZone Parts, Inc. v. Ken Belden, FA 1815011 (Forum Dec. 24, 2018) ("Complainant contends that Respondent's knowledge can be presumed in light of the substantial fame and notoriety of the AUTOZONE mark, as well as the fact that Complainant is the largest retailer in the field. The Panel here finds that Respondent did have actual knowledge of Complainant's mark, demonstrating bad faith registration and use under Policy ¶ 4(a)(iii)."). The Panel infers, due to the manner of use of the disputed domain names that Respondent registered the disputed domain names with knowledge of Complainant's rights in its mark, which constitutes bad faith registration per Policy ¶ 4(a)(iii).

 

DECISION

Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.

 

Accordingly, it is Ordered that the <nfafirsteconomy.com>, <nfaleadworld.com> and <nfaeconomicsphere.com> domain names be TRANSFERRED from Respondent to Complainant.

 

 

 

Ho-Hyun Nahm, Esq., Panelist

Dated: October 13, 2023