Mininova BV v. Atlas Protecta Co. Ltd.
Claim Number: FA0702000921341
Complainant is
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <mininova.com>, registered with KEY-SYSTEMS GMBH.
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.
Bruce E. Meyerson as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on February 21, 2007; the National Arbitration Forum received a hard copy of the Complaint on February 22, 2007.
On
On February 27, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of March 19, 2007 by which Respondent could file a response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent's registration as technical, administrative and billing contacts, and to postmaster@mininova.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration 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." Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the National Arbitration Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <mininova.com> domain name is identical to Complainant’s MININOVA mark.
2. Respondent does not have any rights or legitimate interests in the <mininova.com> domain name.
3. Respondent registered and used the <mininova.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant,
According to Complainant, Respondent registered the <mininova.com> domain name on June 6, 2006. Prior to Complainant’s registration and use of the <mininova.org> domain name there was no content at Respondent’s website. After Complainant began business operations at its website, Respondent began to use the disputed domain name in connection with a phishing scam. Respondent purports to offer torrent files similar to those offered by Complainant. Before gaining access to Respondent’s files, Internet users must first register by providing personal information, and must pay for the registration. After registration, Internet users are not able to actually access files, but are instead forwarded to Complainant’s website, where their registration information does not work. The look and feel of Respondent’s website is very similar to that of Complainant’s website.
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."
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(e), 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 and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
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.
Complainant began development of its business in January
2005 and registered the <mininova.org> domain name at that time. Complainant began operations in May 2006
utilizing the <mininova.org> domain name to operate its website. On
Respondent’s <mininova.com> domain name is
identical to Complainant’s mark. The
disputed domain name contains Complainant’s MININOVA mark in its entirety
without any alteration or addition.
While the disputed domain name does affix the generic top level domain
“.com” to Complainant’s mark, it is established practice under the Policy to
disregard top level domains in determining whether a disputed domain name is
identical or confusing similarity. For
example, in Busy Body, Inc. v. Fitness Outlet Inc., D2000-0127 (WIPO
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant asserts that Respondent lacks rights or
legitimate interests in the disputed domain name. Previous panels, including those in Do The
Hustle, LLC v. Tropic Web, D2000-0624 (WIPO
Respondent is using the disputed domain name to operate a website engaged in phishing. The panel in HOPE worldwide, Ltd. v. Jin, FA 320379 (Nat. Arb. Forum Nov. 11, 2004), defined phishing as fooling “Internet users into sharing personal financial data so that identities can be stolen, fraudulent bills are run up, and spam e-mail is sent.” Similarly, in Juno Online Servs., Inc. v. Nelson, FA 241972 (Nat. Arb. Forum Mar. 29, 2004), the panel stated that, “‘phishing’ involves the use of e-mails, pop-ups or other methods to trick Internet users into revealing credit cards, passwords, social security numbers and other personal information to the ‘phishers’ who intend to use such information for fraudulent purposes.” Respondent is using the <mininova.com> domain name to operate a website that mimics many of the features of Complainant’s genuine website in order to confuse Internet users into submitting confidential personal information, including credit card numbers.
Specifically, Respondent’s website claims to offer torrent downloads to Internet users if they register for Respondent’s website. The registration process requires the input of personal information and Respondent claims that there is a fee for registration. Once Internet users are registered, instead of receiving torrent files from Respondent, they are redirected to Complainant’s website, which is free of charge. In this way, Respondent is phishing for personal information for an illegitimate use, and profiting by collecting illegitimate registration fees and failing to provide services in return. In Juno Online Servs., Inc. v. Nelson, FA 241972 (Nat. Arb. Forum Mar. 29, 2004), the panel found that using a domain name in a fraudulent scheme to deceive Internet users into providing their credit card and personal information is not a bona fide offering of goods or services nor a legitimate noncommercial or fair use. Under similar circumstances in HOPE worldwide, Ltd. v. Jin, FA 320379 (Nat. Arb. Forum Nov. 11, 2004), the panel held that a domain name that “is confusingly similar to Complainant’s mark, redirects Internet users to a website that imitates Complainant’s website, and is used to acquire personal information from Complainant’s potential associates fraudulently” does not fall within the parameters contemplated by Policy ¶¶ 4(c)(i) or (iii). Thus, the Panel finds that Respondent’s use of the <mininova.com> domain name is neither a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).
Additionally, there is no available evidence that Respondent is commonly known by the <mininova.com> domain name. Respondent’s WHOIS information identifies Respondent as “Atlas Protecta Co. Ltd.,” a name unrelated to the disputed domain name. Furthermore, Complainant asserts without contradiction that Respondent is not affiliated with Complainant and is not authorized by Complainant to use the MININOVA mark in a domain name. In Compagnie de Saint Gobain v. Com-Union Corp., D2000-0020 (WIPO Mar. 14, 2000), the panel found no rights or legitimate interest where the respondent was not commonly known by the mark and never applied for a license or permission from the complainant to use the trademarked name. Thus, the Panel finds that Complainant is not commonly known by the disputed domain name as contemplated by Policy ¶ 4(c)(ii).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Respondent is using its <mininova.com> domain name, which is identical to Complainant’s mark, to operate a “phishing” website. Because Respondent’s website mimics the look of Complainant’s website, and because the disputed domain name is identical to Complainant’s mark, Internet users believe that Respondent’s website is Complainant’s website. Under this mistaken belief Internet users register for Respondent’s website, providing personal information and credit card numbers to Respondent. Complainant provided multiple e-mails from Internet users describing their confusion, and describing the failure of Respondent to offer services in exchange for their registration payments. In this way, Respondent is taking advantage of the confusion of Internet users to attract them to Respondent’s website to collect fraudulent registration fees. In Utensilerie Assoc. S.p.A. v. C & M, D2003-0159 (WIPO Apr. 22, 2003), the panel found bad faith because “the contents of the website, offering Usag products, together with the domain name may create the (incorrect) impression that respondent is either the exclusive distributor or a subsidiary of complainant, or at the very least that complainant has approved its use of the domain name.” Similarly, in Hewlett-Packard Co. v. Ali, FA 353151 (Nat. Arb. Forum Dec. 13, 2004), the panel stated that “respondent [used “HP” in its domain name] to benefit from the goodwill associated with complainant’s HP marks and us[ed] the <hpdubai.com> domain name, in part, to provide products similar to those of complainant. Respondent’s practice of diversion, motivated by commercial gain, constitutes bad faith registration and use pursuant to Policy ¶ 4(b)(iv).” Thus, the Panel finds that Respondent has demonstrated bad faith registration under Policy ¶ 4(b)(iv).
Respondent is using the <mininova.com> domain
name to redirect Internet users to Respondent’s website which mimics many of
the features of Complainant’s genuine website.
Presumably, the similarities are intended to mislead Internet users and
manipulate them into disclosing sensitive personal information and their credit
card numbers by registering at Respondent’s website. However, Respondent does not offer any goods
or services in return for Internet users’ registrations and merely redirects
Internet users to Complainant’s website, which is free of charge. This use of the website to fraudulently acquire
sensitive personal information is a practice known as “phishing.” While “phishing”
is not explicitly discussed as an example of bad faith registration and use in
Policy ¶ 4(b)(i)-(iv), the Panel is not limited to those circumstances in
finding bad faith registration and use pursuant to Policy ¶ 4(a)(iii). Do The Hustle, LLC v. Tropic Web,
D2000-0624 (WIPO
Based on this interpretation of the Policy, the panel in
Capital One Fin. Corp. v. Howel, FA 289304 (Nat. Arb. Forum
The Panel finds that Policy ¶ 4(a)(iii) has been satisfied.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <mininova.com> domain name be TRANSFERRED from Respondent to Complainant.
Bruce E. Meyerson, Panelist
Dated:
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