DECISION

 

The Optimism Foundation v. excix ytfkjh

Claim Number: FA2402002085114

 

PARTIES

Complainant is The Optimism Foundation ("Complainant"), represented by Matthew Passmore of Cobalt LLP, California, USA. Respondent is excix ytfkjh ("Respondent"), Turkey.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <launch-optimism.com> ('the Domain Name'), registered with HOSTINGER operations, UAB.

 

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.

 

Dawn Osborne as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to Forum electronically on February 22, 2024; Forum received payment on February 22, 2024.

 

On February 23, 2024, HOSTINGER operations, UAB confirmed by e-mail to Forum that the <launch-optimism.com> Domain Name is registered with HOSTINGER operations, UAB and that Respondent is the current registrant of the name. HOSTINGER operations, UAB has verified that Respondent is bound by the HOSTINGER operations, UAB 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 February 26, 2024, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 18, 2024 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@launch-optimism.com. Also on February 26, 2024, 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 March 19, 2024 pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Dawn Osborne 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

The Complainant owns the trade mark OPTIMISM registered, inter alia, in the USA for software related to cryptocurrency services with first use recorded as at least 2020.

 

The Domain Name registered in 2024 is confusingly similar to the Complainant's trade mark containing it in its entirety and merely adding the generic term 'launch', a hyphen and the gTLD .com which do not distinguish the Domain Name from the Complainant's mark.

 

Respondent does not have rights or a legitimate interests in the Domain Name, is not commonly known by the Domain Name and is not authorised by the Complainant.

 

The web site connected with the Domain Name is using the Complainant's trade mark in its logo form as a masthead and mimics the Complainant's web site for apparent phishing services inviting Internet users to connect their cryptocurrency wallet to the site.

 

Since Internet users will be duped into believing the site attached to the Domain Name is connected with the Complainant this is not legitimate. It is registration and use in opportunistic bad faith to divert and confuse Internet users for phishing purposes and disrupting the Complainant's business.

 

B. Respondent

Respondent failed to submit a Response in this proceeding.

 

FINDINGS

The Complainant owns the trade mark OPTIMISM registered, inter alia, in the USA for software related to cryptocurrency services with first use recorded as at least 2020.

 

The Domain Name registered in 2024 points to a site using the Complainant's trade mark in its logo form as a masthead and mimicking the Complainant's web site for apparent phishing services inviting Internet users to connect their cryptocurrency wallet to the site.

 

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 Domain Name consists of the Complainant's OPTIMISM mark (which is registered, inter alia, in the USA for software related to cryptocurrency services with first use recorded as at least 2020), the generic term 'launch', a hyphen and the gTLD .com.

 

Previous panels have found confusing similarity when a respondent merely adds a generic term and a hyphen to a Complainant's mark. See PG&E Corp. v Anderson, D2000-1264 (WIPO Nov. 22, 2000) (finding that respondent does not by adding common descriptive or generic terms create new or different marks nor does it alter the underlying mark held by the Complainant). See Health Devices Corp. v. Aspen STC, FA 158254 (Forum July , 2003) ("The addition of punctuation marks such as hyphens is irrelevant in the determination of confusing similarity pursuant to Policy 4 (a)(i)."). Accordingly the Panel holds that the addition of the generic term 'launch' and a hyphen to the Complainant's trade mark in the Domain Name does not prevent confusing similarity between the Domain Name and the Complainant's mark.

 

The gTLD .com does not serve to distinguish a Domain Name from a Complainant's mark. See Red Hat Inc v. Haecke, FA 726010 (Forum July 24, 2006) (concluding that the redhat.org domain name is identical to the complainant's red hat mark because the mere addition of the gTLD was insufficient to differentiate the disputed domain name from the mark).

 

Accordingly, the Panel holds that the Domain Name is confusingly similar to the Complainant's registered mark.

 

As such the Panel holds that Paragraph 4(a)(i) of the Policy has been satisfied. 

 

Rights or Legitimate Interests

The Respondent is not authorised by the Complainant. There is no evidence or reason to suggest the Respondent is commonly known by the 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). Respondent's name does not bear any resemblance to the Domain Name and the Panel finds that the Respondent is not commonly known by it.

 

The web site attached to the Domain Name uses the Complainant's logo in its logo form as a masthead and mimics the Complainant's web site to purport to offer cryptocurrency services impersonating the Complainant in a manner likely to deceive Internet users that it and the Respondent's business is connected with, or that of the Complainant, when it is not. As such it cannot amount to the bona fide offering of goods and services. See Am. Intl Group Inc v Benjamin FA 944242 (Forum May 11, 2007) (finding that the Respondent's use of a confusingly similar domain name to compete with the Complainant's business did not constitute a bona fide use of goods and services). Since the use is commercial it cannot be legitimate noncommercial fair use.

 

Further the invite for Internet users to connect their cryptocurrency wallets to the Respondent's web site is evidence of phishing. 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."). 

 

The Respondent has not answered this Complaint or provided any explanation to counter the allegation that the web site is phishing. The Respondent has not rebutted the prima facie case evidenced by the Complainant as set out herein.

 

As such the Panelist finds that the Complainant has shown that the Respondent does not have rights or a legitimate interest in the Domain Name and that the Complainant has satisfied the second limb of the Policy.

 

Registration and Use in Bad Faith

In the opinion of the Panel the use made of the Domain Name in relation to the Respondent's site is confusing and disruptive in that visitors to the site might reasonably believe it is operated by or connected to the Complainant as it offers competing services under the Complainant' mark in its logo form as a masthead and mimics the Complainant's web site giving the impression that the site attached to the Domain Name is commercially connected with the Complainant, or is that of the Complainant, when it is not. The use of the Complainant's mark in its logo form and the copying of the Complainant's web site shows that the Respondent is aware of the Complainant, its rights and services and is actively attempting to take advantage of the Complainant's goodwill to deceive and confuse for fraudulent purposes.

 

Accordingly, the Panel holds that the Respondent has intentionally attempted to attract for commercial gain Internet users to its website by creating a likelihood of confusion with Complainant's trade mark as to the source, sponsorship, affiliation or endorsement of the web site and the services offered on it likely to disrupt the business of the Complainant. See Asbury Auto Group Inc v. Tex. Int'l Prop Assocs, FA 958542 (Forum May 29, 2007) (finding that the respondent's use of the disputed domain name to compete with the complainant's business would likely lead to confusion amongst Internet users as to the sponsorship or affiliation of a competing business and was therefore evidence of bad faith and use).

 

Further, using a disputed domain name for phishing is bad faith disrupting the Complainant's business. See Klabzuba Oil & Gas, Inc. v. LAKHPAT SINGH BHANDARI, FA 1625750 (Forum July 17, 2015) ("Respondent uses the <klabzuba-oilgas.com> domain to engage in phishing, which means Respondent registered and uses the domain name in bad faith under Policy ¶ 4(a)(iii)."). 

 

As such, the Panelist believes that the Complainant has made out its case that the Domain Name was registered and used in bad faith and has satisfied the third limb of the Policy under ¶¶ 4(b)(iii) and (iv).

 

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 <launch-optimism.com> domain name be TRANSFERRED from Respondent to Complainant.

 

 

 

Dawn Osborne, Panelist

Dated: March 19, 2024