DECISION

 

Locust Point Capital, Inc. v. Brittany Burdett / stril swap

Claim Number: FA2409002115208

 

PARTIES

Complainant is Locust Point Capital, Inc. ("Complainant"), represented by Grace Han Stanton, Stefan B. Blum, and Patrick J. Koncel of Perkins Coie LLP, Washington, USA. Respondent is Brittany Burdett / stril swap ("Respondent"), California, USA.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <locustpointcapltal.com>, 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.

 

Richard Hill as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to Forum electronically on September 11, 2024; Forum received payment on September 11, 2024.

 

On September 13, 2024, Hostinger Operations, UAB confirmed by e-mail to Forum that the <locustpointcapltal.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 September 16, 2024, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 7, 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@locustpointcapltal.com. Also on September 16, 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 October 8, 2024, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Richard Hill 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 states that it was founded in 2015 and has been operating under the mark LOCUST POINT CAPITAL in U.S. commerce since at least as early as 2016 in connection with a range of financial services, growing to become a leading financial services firm in the area of lower middle market lending and investing to seniors housing and care companies. Complainant currently manages over $1.4 billion in assets, and has, since inception, helped to finance transactions with over $5.2 billion in total transaction value, with geographic scope across the United States. As such, Complainant and its LOCUST POINT CAPITAL mark are well known in Complainant's field, and Complainant enjoys well-established common law trademark rights in the LOCUST POINT CAPITAL mark, dating back to 2016. Complainant's web site is <www.locustpointcapital.com>; it has been used since 2016 to promote Complainant's services. Complainant has filed an application in the United States to register its LOCUST POINT CAPITAL mark.

 

Complainant alleges that the disputed domain name is confusingly similar to its LOCUST POINT CAPITAL mark as it consists of a misspelling of the mark (the letter "i" in CAPITAL is replaced with the letter "l"), together with the ".com" generic top-level domain ("gTLD").

 

According to Complainant, Respondent lacks rights or legitimate interests in the disputed domain name. Respondent is not licensed or authorized to use Complainant's mark and is not commonly known by the disputed domain name. Respondent does not use the disputed domain name for a bona fide offering of goods or services, or a legitimate noncommercial or fair use. Instead, the disputed domain name is used in furtherance of a fraudulent email phishing scheme. Specifically, Complainant uses the disputed domain name in emails to impersonate Complainant's personnel and contact Complainant's customers falsely to claim that Complainant's bank account information had changed, for the sole purpose of intercepting and stealing payments intended for Complainant. The signature block of the fraudulent emails displays the physical address of Complainant's office.

 

Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith by using it in furtherance of phishing.

 

B. Respondent

Respondent failed to submit a Response in this proceeding.

 

FINDINGS

Complainant owns the mark LOCUST POINT CAPITAL and uses it to market financial services.

 

Complainant's rights in its mark precede the registration of the disputed domain name.

 

The disputed domain name was registered in 2024.

 

Complainant has not licensed or otherwise authorized Respondent to use its mark.

 

The disputed domain name is used in furtherance of a fraudulent email phishing scheme. The signature block of the fraudulent emails displays the physical address of Complainant's office.

 

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

Complainant asserts common law rights in its LOCUST POINT CAPITAL mark. Common law rights are sufficient to establish rights in a mark under Policy ¶ 4(a)(i). See Artistic Pursuit LLC v. calcuttawebdevelopers.com, FA 894477 (Forum Mar. 8, 2007) (finding that Policy ¶ 4(a)(i) does not require a trademark registration if a complainant can establish common law rights in its mark). Common law rights may be established through evidence of secondary meaning in the mark such as longstanding use, evidence of an identical domain name, media recognition, and promotional material and advertising. See Marquette Golf Club v. Al Perkins, 1738263 (Forum July, 27, 2017) (finding that Complainant had established its common law rights in the MARQUETTE GOLF CLUB mark with evidence of secondary meaning, including "longstanding use; evidence of holding an identical domain name; media recognition; and promotional material/advertising."). Here, Complainant registered the domain name <locustpointcapital.com> in 2015, and used it to market and to provide financial services well before the registration of the disputed domain name, as shown by www.archive.org. Further, Complainant used its LOCUST POINT CAPITAL mark in various promotional and advertising materials. Therefore, the Panel finds that Complainant established common law rights in its LOCUST POINT CAPITAL mark, with rights predating the registration of the disputed domain name.

 

The disputed domain name is confusingly similar to Complainant's LOCUST POINT CAPITAL mark, as the name is a minor misspelling of the mark (the letter "i" in CAPITAL is replaced by the letter "l"). Addition of a gTLD (".com") and a change in one letter of the mark is not sufficient to overcome a confusingly similar analysis per Policy ¶ 4(a)(i). See Bank of America Corporation v. Above.com Domain Privacy, FA 1629452 (Forum Aug. 18, 2015) (finding that the <blankofamerica.com> domain name contains the entire BANK OF AMERICA mark and merely adds the gTLD '.com' and the letter 'l' to create a common misspelling of the word 'bank.'). Thus the Panel finds that the disputed domain name is confusingly similar to Complainant's mark per Policy ¶ 4(a)(i).

 

Rights or Legitimate Interests

Complainant has not licensed or otherwise authorized Respondent to use its mark. Respondent is not commonly known by the disputed domain name: under Policy ¶ 4(c)(ii), WHOIS information may be used to determine whether a respondent is commonly known by the disputed domain name. See Tercent Inc. v. Lee Yi, FA 139720 (Forum Feb. 10, 2003) (stating "nothing in [the respondent's] WHOIS information implies that [the respondent] is 'commonly known by' the disputed domain name" as one factor in determining that Policy ¶ 4(c)(ii) does not apply); see also Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA 1408001574905 (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). Here, the WHOIS information for the disputed domain name lists the registrant as "Brittany Burdett / stril swap". Therefore the Panel finds that Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii).

 

Complainant presents evidence showing that Respondent uses the disputed domain name in furtherance of a fraudulent email phishing scheme. This does not constitute a bona fide offering of goods or services or a legitimate noncommercial or fair use. 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."); see also Morgan Stanley v. Zhange Sheng Xu / Zhang Sheng Xu, FA1501001600534 (Forum February 26, 2015) ("The Panel agrees that the respondent's apparent phishing attempt provides further indication that the respondent lacks any rights or legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii)."); see also Blackstone TM L.L.C. v. Mita Irelant Ltd., FA 1314998 (Forum Apr. 30, 2010) ("The Panel finds that Respondent's attempt to "phish" for users' personal information is neither a bona fide offering of goods and services pursuant to Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii)."). Thus the Panel finds that Respondent fails to use the disputed domain name to make a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii). And the Panel finds that Respondent does not have rights or legitimate interests in the disputed domain name.

 

Registration and Use in Bad Faith

Respondent (who did not reply to Complainant's contentions) has not presented any plausible explanation for its use of Complainant's mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent's failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain name.

 

Indeed, as already noted, Respondent uses the disputed domain name in furtherance of phishing. This evinces bad faith registration and use under Policy ¶ 4(a)(iii). See Wells Fargo & Co. v. Maniac State, FA 608239 (Forum Jan. 19, 2006) (finding bad faith registration and use where the respondent was using the <wellsbankupdate.com> domain name in order to fraudulently acquire the personal and financial information of the complainant's customers); see also Hess Corp. v. GR, FA 770909 (Forum Sept. 19, 2006) (finding that the respondent demonstrated bad faith registration and use because it was attempting to acquire the personal and financial information of Internet users through a confusingly similar domain name); see also National Oilwell Varco, L.P. v. Craig Wood/NOV, FA 1575951 (Forum Sept. 22, 2014) (finding bad faith where respondent fraudulently attempted to induce wire transfers by sending e-mails purporting to be from complainant's President and CEO); see also Capital One Financial Corporation and Capital One Bank v. Austin Howel, FA 289304 (Forum Aug. 11, 2004) (finding bad faith where respondent used complainant's mark to fraudulently induce transfer of credit and personal identification information). Thus the Panel finds bad faith registration and use under Policy ¶ 4(a)(iii).

 

Further, Respondent registered the disputed domain name with actual knowledge of Complainant's mark: the signature block of the fraudulent emails displays the physical address of Complainant's office. While constructive notice is insufficient to demonstrate bad faith, actual knowledge of a complainant's rights in a mark prior to registration may be evidence of bad faith per Policy ¶ 4(a)(iii). See Custom Modular Direct LLC v. Custom Modular Homes Inc., FA 1140580 (Forum Apr. 8, 2008) ("There is no place for constructive notice under the Policy."); see also Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum Feb. 6, 2014) ("The Panel notes that although the UDRP does not recognize 'constructive notice' as sufficient grounds for finding Policy ¶ 4(a)(iii) bad faith, the Panel here finds actual knowledge through the name used for the domain and the use made of it."); 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). The Panel finds that Respondent had actual knowledge of Complainant's rights in the mark prior to Respondent's registration of the disputed domain names and that this constitutes bad faith under Policy ¶ 4(a)(iii).

 

Finally, Respondent's bad faith is indicated by the practice of typosquatting as Respondent has merely changed one letter in Complainant's mark in order to create the disputed domain name. Use of a domain name to typosquat in an attempt to gain commercially from the notoriety of a complainant's mark is evidence of bad faith per Policy ¶ 4(a)(iii). See Webster Financial Corporation and Webster Bank, National Association v. IS / ICS INC, FA 16070016833 (Forum Aug. 11, 2016) ("Typosquatting is a practice whereby a domain name registrant, such as Respondent, deliberately introduces typographical errors or misspellings into a trademark and then uses the string in a domain name. The conniving registrant wishes and hopes that Internet users will inadvertently type the malformed trademark or read the domain name and believe it is legitimately associated with the target trademark. In doing so, wayward Internet users are fraudulently directed to a web presence controlled by the confusingly similar domain name's registrant."). Accordingly, the Panel finds that Respondent registered and is using the disputed domain name in bad faith per Policy ¶ 4(a)(iii) on this ground also.

 

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 <locustpointcapltal.com> domain name be TRANSFERRED from Respondent to Complainant.

 

 

 

 

Richard Hill, Panelist

Dated: October 8, 2024