DECISION

 

Citadel LLC and CE TM Holdings LLC v. atom clone

Claim Number: FA2310002066851

 

PARTIES

Complainant is Citadel LLC and CE TM Holdings LLC ("Complainant"), represented by Laura M. Franco of Winston & Strawn LLP, California, USA. Respondent is atom clone ("Respondent"), Nigeria.

 

REGISTRAR AND DISPUTED DOMAIN NAME 

The domain name at issue is <citadelchoice.com>, registered with PDR Ltd. d/b/a PublicDomainRegistry.com.

 

PANEL

The undersigned certifies that they have acted independently and impartially and to the best of their knowledge have no known conflict in serving as Panelist in this proceeding.

 

Richard Hill as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to Forum electronically on October 18, 2023; Forum received payment on October 18, 2023.

 

On October 20, 2023, PDR Ltd. d/b/a PublicDomainRegistry.com confirmed by e-mail to Forum that the <citadelchoice.com> domain name is registered with PDR Ltd. d/b/a PublicDomainRegistry.com and that Respondent is the current registrant of the name. PDR Ltd. d/b/a PublicDomainRegistry.com has verified that Respondent is bound by the PDR Ltd. d/b/a PublicDomainRegistry.com 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 October 20, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 9, 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@citadelchoice.com. Also on October 20, 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 November 10, 2023, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Richard Hill 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 name be transferred from Respondent to Complainant.

 

PRELIMINARY ISSUE: MULTIPLE COMPLAINANTS

Paragraph 3(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") provides that "[a]ny person or entity may initiate an administrative proceeding by submitting a complaint." Forum's Supplemental Rule 1(e) defines "The Party Initiating a Complaint Concerning a Domain Name Registration" as a "single person or entity claiming to have rights in the domain name, or multiple persons or entities who have a sufficient nexus who can each claim to have rights to all domain names listed in the Complaint." 

 

There are two Complainants in this matter: Citadel LLC and CE TM Holdings LLC. Complainants argue that while CE TM Holdings LLC is the owner of the claimed CITADEL mark, use of the mark is licensed to Citadel LLC.

 

Previous panels have interpreted Forum's Supplemental Rule 1(e) to allow multiple parties to proceed as one party where they can show a sufficient link to each other. For example, in Vancouver Org. Comm. for the 2010 Olympic and Paralymic Games & Int'l Olympic Comm. v. Malik, FA 666119 (Forum May 12, 2006), the panel stated:

 

It has been accepted that it is permissible for two complainants to submit a single complaint if they can demonstrate a link between the two entities such as a relationship involving a license, a partnership or an affiliation that would establish the reason for the parties bringing the complaint as one entity.

 

In Tasty Baking, Co. & Tastykake Invs., Inc. v. Quality Hosting, FA 208854 (Forum Dec. 28, 2003), the panel treated the two complainants as a single entity where both parties held rights in trademarks contained within the disputed domain names. Likewise, in Am. Family Health Srvs. Group, LLC v. Logan, FA 220049 (Forum Feb. 6, 2004), the panel found a sufficient link between the complainants where there was a license between the parties regarding use of the TOUGHLOVE mark.

 

The Panel finds that the evidence in the Complaint is sufficient to establish a sufficient nexus or link between the Complainants, and thus it will treat them as a single entity in this proceeding.

 

PARTIES' CONTENTIONS

A. Complainant

Complainant states that it was founded in 1990 and has since grown to be one of the world's largest and most sophisticated alternative investment institutions. Complainant is widely regarded as an industry expert and leader, and its opinions on all forms of financial markets, financial services, and investment vehicles are highly regarded. It employs more than 1,250 professionals who are located in offices worldwide and it manages many billions of U.S. dollars in assets. Its investors include endowments, pension funds, foundations and other institutional investors, as well as high net worth individuals. Complainant is also a leading market maker, providing liquidity and trade execution to retail and institutional clients, and it is a leader in investment management technology. Complainant has rights in the CITADEL mark through its registration in the United States in 2007.

 

Complainant alleges that the disputed domain name is confusingly similar to its CITADEL mark as it incorporates the mark in its entirety, merely adding the generic/descriptive term "choice" and the generic top level domain ("gTLD") ".com." Complainant cites UDRP precedents to support its position.

 

According to Complainant, Respondent does not have rights or legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name and Complainant has not granted Respondent permission or license to use the CITADEL mark for any purpose. Respondent is not using the disputed domain name to make a bona fide offering of goods or services or for a legitimate non-commercial or fair use. Instead, Respondent is using the disputed domain to pass off as Complainant in order to phish for users' personal information. Specifically, the disputed domain name resolves to a website that fraudulently purports to be Complainant, displaying Complainant's mark and logo. Certain links on the fraudulent website do not work. The address listed on the fraudulent website is for a United States Postal Service building—not for any kind of bank. The fraudulent website also includes a form that requests a username and password from site visitors. Thus the resolving website is used in furtherance of a phishing scheme intended to elicit information from Complainant's customers who are deceived into believing that the website is the authentic Citadel website when it is not. Complainant cites UDRP precedents to support its position.

 

Further, says Complainant, Respondent has registered and is using the disputed domain name in bad faith because it is used to pass off as Complainant in furtherance of a phishing scheme. Complainant cites UDRP precedents to support its position.

 

B. Respondent

Respondent failed to submit a Response in this proceeding.

 

FINDINGS

Complainant owns the mark CITADEL and uses it to market financial and investment services.

 

Complainant's registration of its mark dates back to 2007.

 

The disputed domain name was registered in 2023.

 

Complainant has not licensed or otherwise authorized Respondent to use its mark.

 

The disputed domain name resolves to a website that fraudulently purports to be Complainant (it displays Complainant's mark and logo), displaying a login page that invites users to enter personal and confidential information in furtherance of a phishing scheme.

 

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

The disputed domain name incorporates Complainant's CITADEL mark in its entirety, merely adding the generic/descriptive term "choice" and the gTLD ".com." Under Policy ¶ 4(a)(i), adding a gTLD and/or generic terms is generally insufficient in differentiating a disputed domain name from the mark it incorporates. See Bloomberg Finance L.P. v. Nexperian Holding Limited, FA 1782013 (Forum June 4, 2018) ("Where a relevant trademark is recognisable within a disputed domain name, the addition of other terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) does not prevent a finding of confusing similarity under the first element."); see also Vanguard Group Inc. v. Proven Fin. Solutions, FA 572937 (Forum Nov. 18, 2005) (holding that the addition of both the word "advisors" and the gTLD ".com" did not sufficiently alter the disputed domain name to negate a finding of confusing similarity under Policy ¶ 4(a)(i)). Therefore, the Panel finds that the disputed domain name is confusingly similar to Complainant's mark under Policy ¶ 4(a)(i).

 

Rights or Legitimate Interests

Complainant has not licensed or otherwise authorized Respondent to use its CITADEL mark in any way. Respondent is not commonly known by the disputed domain name: under Policy ¶ 4(c)(ii), WHOIS information can support a finding that a respondent is not commonly known by the disputed domain name. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA 1574905 (Forum Sept. 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark.). Here, the WHOIS information of record identifies Respondent as "atom clone". The Panel therefore finds under Policy ¶ 4(c)(ii) that Respondent is not commonly known by the disputed domain name.

 

Complainant presents evidence showing that Respondent is using the disputed domain to pass off as Complainant in order to phish for users' personal information. Specifically, the disputed domain name resolves to a website that fraudulently purports to be Complainant, displaying Complainant's mark and logo. Certain links on the fraudulent website do not work. The address listed on the fraudulent website is for a United States Postal Service building—not for any kind of bank. The fraudulent website also includes a form that requests a username and password from site visitors. Passing off as a complainant to conduct a phishing scheme is evidence that a respondent lacks rights and legitimate interests under Policy ¶¶ 4(c)(i) & (iii). 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."). Therefore, the Panel finds that Respondent fails to use the disputed domain name in connection with a bona fide offering of goods or services, or for a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii). And the Panel finds that Respondent does not have rights or legitimate interests in the disputed domain name.

 

Registration and Use in Bad Faith

Respondent (who did not reply to Complainant's contentions) has not presented any plausible explanation for its use of Complainant's mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent's failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain name.

 

Indeed, as already noted, Respondent uses the disputed domain name to phish for Internet users' personal information. This is evidence of bad faith registration and use pursuant to Policy ¶ 4(a)(iii). See Wells Fargo & Co. v. Maniac State, FA 608239 (Forum Jan. 19, 2006) (finding bad faith registration and use where the respondent was using the <wellsbankupdate.com> domain name in order to fraudulently acquire the personal and financial information of the complainant's customers); see also Hess Corp. v. GR, FA 770909 (Forum Sept. 19, 2006) (finding that the respondent demonstrated bad faith registration and use because it was attempting to acquire the personal and financial information of Internet users through a confusingly similar domain name). Thus the Panel finds bad faith registration and use under Policy ¶ 4(a)(iii).

 

Finally, Respondent registered the disputed domain name with actual knowledge of Complainant's mark: the resolving website displays Complainant's mark and logo. While constructive notice is insufficient to demonstrate bad faith, actual knowledge of a complainant's rights in a mark prior to registration may be evidence of bad faith per Policy ¶ 4(a)(iii). See Custom Modular Direct LLC v. Custom Modular Homes Inc., FA 1140580 (Forum Apr. 8, 2008) ("There is no place for constructive notice under the Policy."); see also Am. Online, Inc. v. Miles, FA 105890 (Forum May 31, 2002) ("Respondent is using the domain name at issue to resolve to a website at which Complainant's trademarks and logos are prominently displayed. Respondent has done this with full knowledge of Complainant's business and trademarks. The Panel finds that this conduct is that which is prohibited by Paragraph 4(b)(iv) of the Policy."). The Panel finds that Respondent had actual knowledge of Complainant's rights in the mark prior to Respondent's registration of the disputed domain name and that this constitutes bad faith under 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 <citadelchoice.com> domain name be TRANSFERRED from Respondent to Complainant.

 

 

 

Richard Hill, Panelist

Dated: November 10, 2023