DECISION

 

The Optimism Foundation v. sadsd sadasd

Claim Number: FA2401002078679

 

PARTIES

Complainant is The Optimism Foundation ("Complainant"), Cayman Islands, represented by Matthew Passmore of Cobalt LLP, United States. Respondent is sadsd sadasd ("Respondent"), Armenia.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <optimismdao.org>, registered with NameSilo, LLC.

 

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.

 

David E. Sorkin as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to Forum electronically on January 10, 2024; Forum received payment on January 10, 2024.

 

On January 11, 2024, NameSilo, LLC confirmed by email to Forum that the <optimismdao.org> domain name is registered with NameSilo, LLC and that Respondent is the current registrant of the name. NameSilo, LLC has verified that Respondent is bound by the NameSilo, 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 January 12, 2024, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 1, 2024 by which Respondent could file a Response to the Complaint, via email to all entities and persons listed on Respondent's registration as technical, administrative, and billing contacts, and to postmaster@optimismdao.org. Also on January 12, 2024, the Written Notice of the Complaint, notifying Respondent of the email 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 February 2, 2024, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed David E. Sorkin 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.

 

PARTIES' CONTENTIONS

A. Complainant

Complainant provides a secure platform that facilitates access to digital currency and blockchain transactions. Complainant has used the OPTIMISM mark in connection with such services since 2019. Complainant owns a United States trademark registration for OPTIMISM in standard character form. The registration issued in August 2023 and reflects a first use date of January 2020. Complainant also asserts common law rights in the mark and asserts that the mark is famous.

 

The disputed domain name <optimismdao.org> was registered in November 2023. Complainant states that "DAO" refers to "decentralized autonomous organization," a commonly used term in Complainant's field. The domain name is registered in the name of a privacy registration service on behalf of Respondent. It is being used for a website that is virtually identical to a page on Complainant's website, including Complainant's OPTIMISM mark and text and images that appear to have been copied directly from Complainant's site. Respondent's website prompts visitors to connect their cryptocurrency wallet to the interface, in support of what Complainant alleges is an attempt to steal funds from users of Complainant's services. Complainant states that Respondent is not commonly known by the domain name, is not affiliated with Complainant, and is not licensed or permitted to use Complainant's mark.

 

Complainant contends on the above grounds that the disputed domain name <optimismdao.org> is confusingly similar to its OPTIMISM mark; that Respondent lacks rights or legitimate interests in the disputed domain name; and that the disputed domain name was registered and is being used in bad faith.

 

B. Respondent

Respondent failed to submit a Response in this proceeding.

 

FINDINGS

The Panel finds that the disputed domain name is confusingly similar to a mark in which Complainant has rights; that Respondent lacks rights or legitimate interests in respect of the disputed domain name; and that the disputed domain name was registered and is being used in bad faith.

 

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 Overview of WIPO Panel Views on Selected UDRP Questions, § 4.3 (3d ed. 2017), available at http://www.wipo.int/amc/en/domains/search/overview3.0/; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (dismissing complaint where complainant failed to "produce clear evidence to support its subjective allegations").

 

Identical and/or Confusingly Similar

The disputed domain name <optimismdao.org> incorporates Complainant's registered OPTIMISM trademark, adding the generic term "DAO" and the ".org" top-level domain. These additions do not substantially diminish the similarity between the domain name and Complainant's mark. See, e.g., Optimism Foundation v. Sahad Mohammed Riviera / Sahari Muti Inc, FA 2072894 (Forum Dec. 23, 2023) (finding <join-optimism.org> confusingly similar to OPTIMISM); Optimism Foundation v. Sicens Browns, FA 2030200 (Forum Mar. 16, 2023) (finding <optimism-coin.com> confusingly similar to OPTIMISM); HDR Global Trading Ltd. v. Cater Tom / Han Zhong Zheng Qi Ke Ji You Xian Gong Si, FA 2021742 (Forum Dec. 22, 2022) (finding <bitmexdao.vip> confusingly similar to BITMEX); HDR Global Trading Ltd. v. XuSiYin, FA 2007562 (Forum Sept. 15, 2022) (finding <bitmexdao.com> confusingly similar to BITMEX). The Panel considers the disputed domain name to be confusingly similar to a mark in which Complainant has rights.

 

Rights or Legitimate Interests

Under the Policy, the Complainant must first make a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain name, and then the burden shifts to the Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Productions, Inc. v. Entertainment Commentaries, FA 741828 (Forum Aug. 18, 2006).

 

The disputed domain name incorporates Complainant's registered mark without authorization, and its sole apparent use has been for a website mimicking and attempting to pass off as that of Complainant, for what the Panel infers to be for fraudulent purposes. Such use does not give rise to rights or legitimate interests under the Policy. See, e.g., Optimism Foundation v. Sahad Mohammed Riviera / Sahari Muti Inc, supra (finding lack of rights or interests in similar circumstances); Optimism Foundation v. Margaret Clark, FA 2034051 (Forum Mar. 31, 2023) (same); Optimism Foundation v. Sicens Browns, supra (same); Optimism Foundation v. Anastasia Semenov, FA 2025625 (Forum Jan. 24, 2023) (same); HDR Global Trading Ltd. v. Cater Tom / Han Zhong Zheng Qi Ke Ji You Xian Gong Si, supra (same).

 

Complainant has made a prima facie case that Respondent lacks rights and legitimate interests in the domain name, and Respondent has failed to come forward with any evidence of such rights or interests. Accordingly, the Panel finds that Complainant has sustained its burden of proving that Respondent lacks rights or legitimate interests in respect of the disputed domain name.

 

Registration and Use in Bad Faith

Finally, Complainant must show that the disputed domain name was registered and is being used in bad faith. Under paragraph 4(b)(iii) of the Policy, bad faith may be shown by evidence that Respondent registered the disputed domain name "primarily for the purpose of disrupting the business of a competitor." Under paragraph 4(b)(iv), bad faith may be shown by evidence that "by using the domain name, [Respondent] intentionally attempted to attract, for commercial gain, Internet users to [Respondent's] web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of [Respondent's] web site or location or of a product or service on [Respondent's] web site or location."

 

Respondent used a privacy registration service and what appears to be fictitious underlying registration data to register a domain name incorporating Complainant's registered mark, and is using the domain name to pass off as Complainant for fraudulent purposes. Such conduct is indicative of bad faith registration and use under the Policy. See, e.g., Optimism Foundation v. Sahad Mohammed Riviera / Sahari Muti Inc, supra (finding bad faith registration and use in similar circumstances); Optimism Foundation v. Margaret Clark, supra (same); Optimism Foundation v. Sicens Browns, supra (same); Optimism Foundation v. Anastasia Semenov, supra (same); HDR Global Trading Ltd. v. Cater Tom / Han Zhong Zheng Qi Ke Ji You Xian Gong Si, supra (same). The Panel finds that the disputed domain name was registered and is being used in bad faith.

 

DECISION

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

 

Accordingly, it is Ordered that the <optimismdao.org> domain name be TRANSFERRED from Respondent to Complainant.

 

 

 

David E. Sorkin, Panelist

Dated: February 5, 2024