DECISION

 

Farallon Capital Management, L.L.C. v. Mr Nobody

Claim Number: FA2404002092842

 

PARTIES

Complainant is Farallon Capital Management, L.L.C. ("Complainant"), United States, represented by Christopher Dolan of Barnes & Thornburg LLP, United States. Respondent is Mr Nobody ("Respondent"), Nigeria.

 

REGISTRAR AND DISPUTED DOMAIN NAME

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

 

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 April 11, 2024; Forum received payment on April 11, 2024.

 

On April 13, 2024, PDR Ltd. d/b/a PublicDomainRegistry.com confirmed by email to Forum that the <faralloncapital.online> 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 April 15, 2024, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 6, 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@faralloncapital.online. Also on April 15, 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 May 7, 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 is a global institutional asset management firm that provides services to institutions and high net worth individuals. Complainant has used FARALLON and related marks in connection with this business since at least as early as 1989. Complainant owns longstanding United States trademark registrations for FARALLON, FARALLON CAPITAL MANAGEMENT, FARALLON CAPITAL PARTNERS, and other FARALLON-formative marks.

 

Respondent registered the disputed domain name <faralloncapital.online> in March 2024. The domain name is being used for a website that prominently displays Complainant's FARALLON mark and a replica of Complainant's FARALLON logo, along with photographs and other design elements copied from Complainant's website; purports to offer financial services identical to those offered by Complainant; and displays a copyright notice that attributes ownership of the website to Complainant. Complainant alleges, with supporting evidence, that Respondent is also using the disputed domain name to impersonate Complainant's Chief Financial Officer in email messages to prospective customers of Complainant. Complainant states that Respondent is not commonly known by the domain name, is not associated with Complainant, and is not licensed or otherwise authorized to use Complainant's mark.

 

Complainant contends on the above grounds that the disputed domain name <faralloncapital.online> is confusingly similar to its FARALLON and FARALLON-formative marks; 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 <faralloncapital.online> incorporates Complainant's registered FARALLON trademark, adding the generic term "capital" (which appears in Complainant's name and other marks, including FARALLON CAPITAL MANAGEMENT) and the ".online" top-level domain. These additions do not substantially diminish the similarity between the domain name and Complainant's mark. See, e.g., Morgan Stanley Domestic Holdings, LLC v. Chris Mark, FA 2087530 (Forum Apr. 3, 2024) (finding <etradeinvestment.online> confusingly similar to E*TRADE); Farallon Capital Management, L.L.C. v. Fillian Trust / Fillian Morgan Associate, FA 1971560 (Forum Nov. 30, 2021) (finding <farelloncapital.com> confusingly similar to FARALLON); Farallon Capital Management, L.L.C. v. Farallon Capital Asia (Hong Kong) International, FA 1579916 (Forum Oct. 14, 2014) (finding <faralloncapitalhk.com> confusingly similar to FARALLON). 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 involved passing off as Complainant in connection with a fraudulent scheme. Such use does not give rise to rights or legitimate interests under the Policy. See, e.g., Morgan Stanley Domestic Holdings, LLC v. Chris Mark, supra (finding lack of rights or interests in similar circumstances); Farallon Capital Management, L.L.C. v. Farallon Capital Asia (Hong Kong) International, 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 what the Panel infers to be fictitious registration information to register a domain name incorporating and obviously designed to create confusion with Complainant's registered mark, and has used the domain name to impersonate Complainant in connection with a fraudulent scheme. Such circumstances are indicative of bad faith registration and use under the Policy. See, e.g., Morgan Stanley Domestic Holdings, LLC v. Chris Mark, supra (finding bad faith registration and use in similar circumstances); Farallon Capital Management, L.L.C. v. Farallon Capital Asia (Hong Kong) International, supra (same). The Panel so finds.

 

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 <faralloncapital.online> domain name be TRANSFERRED from Respondent to Complainant.

 

 

 

David E. Sorkin, Panelist

Dated: May 12, 2024