DECISION

 

Farallon Capital Management, L.L.C. v. mark lenon

Claim Number: FA2409002114249

 

PARTIES

Complainant is Farallon Capital Management, L.L.C. ("Complainant"), represented by Christopher Dolan of Barnes & Thornburg LLP, Illinois, USA. Respondent is mark lenon ("Respondent"), Saint John, Virgin Islands, USA.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <faralloncaptmgt.pro>, 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.

 

Paul M. DeCicco, as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to Forum electronically on September 5, 2024; Forum received payment on September 5, 2024.

 

On September 6, 2024, HOSTINGER operations, UAB confirmed by e-mail to Forum that the <faralloncaptmgt.pro> 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 September 6, 2024, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 26, 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@faralloncaptmgt.pro. Also on September 6, 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 September 27, 2024, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Paul M. DeCicco 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 contends in part as follows:

 

Complainant is a global institutional asset management firm founded in the 1980s which grew to be one of the largest and most prominent hedge funds in the world. Since at least as early as 1989, Complainant has provided asset and investment management services for institutions, including college endowments, charitable foundations, pension plans, and high net worth individuals, under the FARALLON and various FARALLON-formative marks including but not limited to USPTO registered marks FARALLON and FARALLON CAPITAL MANAGEMENT.

 

Complainant's registrations for the registered FARALLON marks are prima facie evidence of validity and establish Complainant's rights for purposes of the Policy.

 

Respondent's at-issue domain name is confusingly similar to a trademark in which Complainant has rights since the at-issue domain name contains the entire FARALLON mark and only differ by the addition of the abbreviations "capt" and "mgt" (which are each references to Complainant's name), and the addition of the ".pro" top-level domain.

 

Respondent lacks rights and legitimate interests in respect of the at-issue domain name. Respondent has never been known by or referred to as FARALLON and is not affiliated or with or authorized by Complainant's to use its trademark. Respondent has also not used the domain name in connection with a bona fide offering of goods or services as the domain name resolves to a website that willfully mimics Complainant's genuine website. Finally, Respondent registered the domain name using a privacy service.

 

Respondent registered and used the at-issue domain name in bad faith. The at-issue domain name is identical and/or confusingly similar to Complainant's FARALLON marks. Furthermore, Respondent had constructive, if not actual, notice of Complainant's rights to the FARALLON marks. Respondent is also using Complainant's FARALLON mark in the at-issue domain name and on Respondent's <faralloncaptmgt.pro> website without authorization in an attempt to attract Internet users to Respondent's website for its own financial gain.

 

B. Respondent

Respondent failed to submit a Response in this proceeding.

 

FINDINGS

Complainant has trademark rights in the FARALLON mark.

 

Respondent has not been authorized to use Complainant's trademark.

 

Respondent registered the at-issue domain name after Complainant acquired rights in FARALLON.

 

Respondent uses the at-issue domain name to address a website mimicking part of Complainant's genuine website.

 

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 at-issue domain name is similar to a trademark in which Complainant has rights.

 

Complainant shows that it has USPTO registrations for its FARALLON trademark. Any of such registrations is sufficient to demonstrate Complainant's rights in the FARALLON mark under Policy ¶ 4(a)(i). See Microsoft Corp. v. Burkes, FA 652743 (Forum Apr. 17, 2006) ("Complainant has established rights in the MICROSOFT mark through registration of the mark with the USPTO").

 

Respondent's <faralloncaptmgt.pro> domain name consists of Complainant's FARALLON trademark followed by the suggestive abbreviated terms "capt" (capital) and "mgt" (management) with all followed by the ".pro" top-level domain name. The differences between Respondent's <faralloncaptmgt.pro> domain name and Complainant's FARALLON trademark are insufficient to distinguish one from the other for the purposes of Policy ¶ 4(a)(i). Therefore, the Panel concludes that Respondent's <faralloncaptmgt.pro> domain name is confusingly similar to Complainant's FARALLON trademark. See Wiluna Holdings, LLC v. Edna Sherman, FA 1652781 (Forum Jan. 22, 2016) (finding the addition of a generic term and gTLD is insufficient in distinguishing a disputed domain name from a mark under Policy ¶ 4(a)(i)); see also, Bloomberg Finance L.P. v. Nexperian Holding Limited, FA 1782013 (Forum June 4, 2018) ("Where a relevant trademark is recognizable 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").

 

Rights or Legitimate Interests

Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm't Commentaries, FA 741828 (Forum Aug. 18, 2006).

 

Here, Respondent lacks both rights and legitimate interests in respect of <faralloncaptmgt.pro>. Respondent is not authorized to use Complainant's trademarks in any capacity and, as discussed below, there are no Policy ¶ 4(c) circumstances from which the Panel might find that Respondent has rights or legitimate interests in respect of the at‑issue domain name.

 

The WHOIS information for <faralloncaptmgt.pro> identifies the domain name's registrant as "mark lenon" and the record before the Panel contains no evidence that otherwise tends to prove that Respondent is commonly known by <faralloncaptmgt.pro>. The Panel therefore concludes that Respondent is not commonly known by the at-issue domain name for the purposes of Policy ¶ 4(c)(ii). See Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Forum July 17, 2006) (concluding that the respondent was not commonly known by the <coppertown.com> domain name where there was no evidence in the record, including the WHOIS information, suggesting that the respondent was commonly known by the disputed domain name).

 

Upon browsing to <faralloncaptmgt.pro> internet visitors are presented with a website displaying Complainant's business name, trademark and logo, and content concerning Complainant's business. Respondent thus capitalizes on the confusion it creates between Complainant's trademark and Respondent's <faralloncaptmgt.pro> domain name to pass off as Complainant and misdirect internet user seeking Complainant to Respondent's domain name and its associated website. Such use of the confusingly similar domain name is neither a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor a non-commercial or fair use pursuant to Policy ¶ 4(c)(iii). See Mulberry Co. (Design) Ltd. v. Chen, D2010-1718 (WIPO Nov. 26, 2010) ("[The] disputed domain names are being used by the Respondent for websites which falsely appear to be affiliated, connected or associated with the Complainant. In this Panel's view, such use and purpose of the disputed domain names without the authorization of the trade mark owner shows that the Respondent is not making a legitimate noncommercial or fair use of the disputed domain names or a bona fide offering of goods and services").

 

Given the forgoing, Respondent lacks rights and lacks legitimate interests in <faralloncaptmgt.pro>.

 

Registration and Use in Bad Faith

As discussed below without being exhaustive, bad faith circumstances are present from which the Panel concludes that Respondent registered and used the at-issue domain name in bad faith.

 

First, Respondent registered and uses <faralloncaptmgt.pro> to pass itself off as Complainant and thereby misdirect internet traffic intended for Complainant to Respondent's imposter version of Complainant's website. Using the domain name in this manner is disruptive to Complainant's business and demonstrates Respondent's bad faith under Policy ¶ 4(b)(iii) and Policy ¶ 4(b)(iv). See Bittrex, Inc. v. Wuxi Yilian LLC, FA 1760517 (Forum Dec. 27, 2017) (finding bad faith per Policy ¶ 4(b)(iv) where "Respondent registered and uses the <lbittrex.com> domain name in bad faith by directing internet users to a website that mimics Complainant's own website in order to confuse users into believing that Respondent is Complainant, or is otherwise affiliated or associated with Complainant").

 

Moreover, Respondent had actual knowledge of Complainant's rights in FARALLON when it registered <faralloncaptmgt.pro> as a domain name. Respondent's actual knowledge is evident from the notoriety of Complainant's trademark and from Respondent's use of the domain name to address a website containing Complainant's trademark, logo, and content relating to Complainant's business. Respondent's registration of the confusingly similar domain name while having knowledge of Complainant's trademark rights in FARALLON further reveals Respondent's bad faith registration and use pursuant to Policy ¶4(a)(iii). See Minicards Vennootschap Onder FIrma Amsterdam v. Moscow Studios, FA 1031703 (Forum Sept. 5, 2007) (holding that respondent registered a domain name in bad faith under Policy ¶ 4(a)(iii) after concluding that respondent had actual knowledge of Complainant's mark when registering the disputed domain name); see also, Univision Comm'cns Inc. v. Norte, FA 1000079 (Forum Aug. 16, 2007) (rejecting the respondent's contention that it did not register the disputed domain name in bad faith since the panel found that the respondent had knowledge of the complainant's rights in the UNIVISION mark when registering the disputed domain name).

 

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 <faralloncaptmgt.pro> domain name be TRANSFERRED from Respondent to Complainant.

 

 

 

Paul M. DeCicco, Panelist

Dated: September 29, 2024