DECISION
Raistone Capital LLC v. Thai Why
Claim Number: FA2406002103282
PARTIES
Complainant is Raistone Capital LLC ("Complainant"), represented by Raymond G. Areaux, Esq. of Carver, Darden, Koretzky, Tessier, Finn, Blossman & Areaux, LLC, Louisiana, USA. Respondent is Thai Why ("Respondent"), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <raisstone.com>, registered with HOSTINGER operations, UAB.
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.
Alan L. Limbury, as Panelist.
PROCEDURAL HISTORY
Complainant submitted a Complaint to Forum electronically on June 22, 2024. Forum received payment on June 22, 2024.
On June 24, 2024, HOSTINGER operations, UAB confirmed by e-mail to Forum that the <raisstone.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 June 24, 2024, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 15, 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@raisstone.com. Also on June 24, 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 July 16, 2024, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Alan L. Limbury 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
Respondent lacks rights or legitimate interests in the <raisstone.com> domain name since Respondent is not licensed or authorized to use Complainant's RAISTONE and RAISTONE.COM marks and is not commonly known by the <raisstone.com> domain name. Additionally, Respondent does not use the domain name for any bona fide offering of goods or services or legitimate noncommercial or fair use. Rather, Respondent used the <raisstone.com> domain name to perpetrate a successful man-in-the-middle attack and fraudulently induce the transfer of funds to Respondent by sending emails from the <raisstone.com> domain to impersonate employees of Complainant and to deceive Complainant into sending $200K to a bank account controlled by Respondent.
Respondent registered the <raisstone.com> domain name in bad faith with actual knowledge of Complainant's rights in the RAISTONE and RAISTONE.COM marks and used it in bad faith to perpetrate a successful man-in-the-middle attack and fraudulently induce the transfer of funds to Respondent.
B. Respondent
Respondent failed to submit a Response in this proceeding.
FINDINGS
Complainant has established all the elements entitling it to relief.
DISCUSSION
Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable."
(i) the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(ii) Respondent has no rights or legitimate interests in respect of the domain name; and
(iii) 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 as 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 has shown that it has, though use, acquired common law rights in the RAISTONE and RAISTONE.COM marks through its website at "www.raistone.com".
It is well accepted that the first element functions primarily as a standing requirement. The standing (or threshold) test for confusing similarity involves a reasoned but relatively straightforward comparison between the Complainant's trademark and the disputed domain name. WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition ("WIPO Overview 3.0"), section 1.7.
The Panel finds Respondent's <raisstone.com> domain name to be confusingly similar to Complainant's RAISTONE and RAISTONE.COM marks, only differing by the insertion of an additional letter "s", which does nothing to distinguish the domain name from the marks. The inconsequential ".com" generic top-level domain ("gTLD") may be ignored in relation to the RAISTONE mark. See, for example, Rollerblade, Inc. v. Chris McCrady, WIPO Case No. D2000-0429.
Complainant has established this element.
Rights or Legitimate Interests
(i) before any notice to Respondent of the dispute, the use by Respondent of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) Respondent (as an individual, business or other organization) has been commonly known by the domain name, even if Respondent has acquired no trademark or service mark rights; or
(iii) Respondent is making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert customers or to tarnish the trademark or service mark at issue.
The <raisstone.com> domain name was registered on April 16, 2024, several years after Complainant has shown that it had acquired common law rights in the RAISTONE and RAISTONE.COM marks. By a sworn affidavit dated June 19, 2024, Complainant's Chief Risk Officer has shown that, in March 2024, an intermediate funding agent of one of Complainant's customers experienced a breach of its email system by which Respondent controlled all incoming and outgoing email to and from the agent (a "man-in-the-middle" attack). This allowed Respondent, by using "@raisstone.com" email addresses, to impersonate Complainant's employees and to provide to Complainant fraudulent wire instructions for a $200K outgoing wire. Complainant followed those instructions, believing the funds were being wired to its customer's account but the funds were actually wired to Respondent's account.
These circumstances, together with Complainant's assertions, are sufficient to constitute a prima facie showing of absence of rights or legitimate interests in respect of the domain name on the part of Respondent. The evidentiary burden therefore shifts to Respondent to show that it does have rights or legitimate interests in the <raisstone.com> domain name. See JUUL Labs, Inc. v. Dryx Emerson / KMF Events LTD, FA1906001849706 (Forum July 17, 2019). Respondent has made no attempt to do so.
The Panel finds that Respondent has no rights or legitimate interests in respect of the domain name.
Complainant has established this element.
Registration and Use in Bad Faith
The four illustrative circumstances set out in paragraph 4(b) of the Policy as evidence of the registration and use of a domain name in bad faith for purposes of paragraph 4(a)(iii) are not exclusive.
The circumstances set out above in relation to the second element satisfy the Panel that Respondent was fully aware of Complainant's RAISTONE and RAISTONE.COM marks when Respondent registered the <raisstone.com> domain name and that Respondent registered and is using the domain name in bad faith for the purpose of fraudulently phishing for money from Complainant.
Complainant has established this element.
DECISION
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <raisstone.com> domain name be TRANSFERRED from Respondent to Complainant.
Alan L. Limbury, Panelist
Dated: July 17, 2024
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