Bridgewater Associates, LP v. Private Registration
Claim Number: FA1509001637996
Complainant is Bridgewater Associates, LP ("Complainant"), represented by Eric J. Shimanoff of Cowan, Liebowitz & Latman, P.C., New York, USA. Respondent is Private Registration ("Respondent"), Australia.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <bwater.site>, registered with Crazy Domains FZ-LLC.
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.
Complainant submitted a Complaint to the Forum electronically on September 16, 2015; the Forum received payment on September 16, 2015.
On September 18, 2015, Crazy Domains FZ-LLC confirmed by email to the Forum that the <bwater.site> domain name is registered with Crazy Domains FZ-LLC and identified the current registrant of the domain name as Phillip Padro of Brisbane, Australia. Crazy Domains FZ-LLC has verified that the registrant is bound by the Crazy Domains FZ-LLC 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 21, 2015, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 13, 2015 by which Respondent could file a Response to the Complaint, via email to all entities and persons listed on Respondent's registration (including both the public whois data and that provided in the registrar's verification email) as technical, administrative, and billing contacts, and to email@example.com. Also on September 21, 2015, 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, the Forum transmitted to the parties a Notification of Respondent Default.
On October 16, 2015, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed David E. Sorkin as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the 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, the 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.
Complainant is a private equity investment firm that manages approximately U.S. $169 billion in global investments. For over fifteen years, Complainant has operated a website at the domain name <bwater.com> providing information about Complainant and its services. Complainant uses the trademarks BRIDGEWATER and BRIDGEWATER ASSOCIATES to identify itself and the financial services that it provides. Complainant states that its BRIDGEWATER mark is registered worldwide, including in the United States and the European Union.
Complainant contends that the disputed domain name <bwater.site>, registered by Respondent in July 2015, is confusingly similar to Complainant's marks; that Respondent has no rights or legitimate interests in the domain name; and that the domain name was registered and is being used in bad faith. In support thereof, Complainant states that Respondent has not been commonly known by the disputed domain name or the names BWATER, BRIDGEWATER, or BRIDGEWATER ASSOCIATES, and that Respondent has not been licensed or authorized to use Complainant's marks. Complainant notes that the domain name was registered through a privacy service to conceal the registrant's identity, and that but for the top-level domain it is identical to the domain name that Complainant uses for its own website. Complainant states further that the domain name resolves to a website that includes Complainant's marks, purports to offer financial and investment services, and previously included copies of videos about Complainant copied from Complainant's own website. Complainant alleges that this website was designed to impersonate and create confusion with Complainant, and that it is being used to "phish" for Internet users' personal information. Finally, Complainant notes that the Australian business address that appears on the website is not valid, and that Respondent does not appear to be registered as required by Australian law.
Respondent failed to submit a Response in this proceeding.
The Panel finds that the disputed domain name is not identical or confusingly similar to a mark in which Complainant has rights. The Panel further finds that Respondent lacks rights or legitimate interests in respect of the disputed domain name, and that the disputed domain name was registered and has been used in bad faith.
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."
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(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.").
The disputed domain name <bwater.site> corresponds to Complainant's registered BRIDGEWATER mark, abbreviating the name BRIDGEWATER to "bwater" and appending the top-level domain ".site" thereto. Complainant uses the same abbreviation in its own domain name, <bwater.com>. However, Complainant does not claim any trademark rights in BWATER, relying instead upon a claim of confusing similarity to BRIDGEWATER.
Confusing similarity is to be determined by reference only to the disputed domain name and the mark or marks in which Complainant claims rights. The manner in which the domain name has been used, including the content of the corresponding website, is not relevant for purposes of paragraph 4(a)(i) of the Policy. See, e.g., PNC Financial Services Group, Inc. v. James Anderson / PTCBank.net, FA 1504563 (Nat. Arb. Forum July 19, 2013); Transamerica Corp. v. One Trans-America Corp., FA 1250996 (Nat. Arb. Forum Apr. 29, 2009) (citing WIPO Overview of WIPO Panel Views on Selected UDRP Questions, § 1.2 (2d ed. 2011), http://www.wipo.int/amc/en/domains/search/overview/).
It is true, as Complainant argues, that a domain name containing an abbreviated form of a mark may be confusingly similar to the mark. Complainant cites three previous UDRP proceedings as examples: Capital One Financial Corp. v. Mike Morgan, FA 1579519 (Nat. Arb. Forum Oct. 24, 2014) (finding <cap1.com> confusingly similar to CAPITAL ONE); Morgan Stanley Smith Barney Holdings LLC v. ms-sb ms, FA 1299536 (Nat. Arb. Forum Feb. 16, 2010) (finding <ms-sb.com> confusingly similar to MORGAN STANLEY and SMITH BARNEY); and AOL Inc. v. Pauta's International SA, FA 1402910 (Nat. Arb. Forum Sept. 19, 2001) (finding <huffpo.com> confusingly similar to HUFFINGTON POST). But the trademark must be easily recognizable within the domain name, and a higher degree of similarity may be required where the mark exists within a crowded field. See PNC Financial Services Group, Inc., supra.
The Panel notes that Complainant is not the exclusive user of the term BRIDGEWATER. To the contrary, there are numerous instances of the term as a geographic name (including multiple instances in both the United States and Australia), and there are many businesses and institutions apart from Complainant that use the term as a name or mark—indeed, Wikipedia includes a lengthy page devoted to various uses of the term. See Wikipedia, Bridgewater, http://en.wikipedia.org/wiki/Bridgewater (disambiguation page). Furthermore, BWATER could refer equally well to many other terms (e.g., backwater, blackwater, bluewater, brightwater, broadwater, etc.).
Respondent clearly intended to target Complainant by using a domain name similar to Complainant's domain name. But Respondent's use of the domain name is irrelevant here; only the domain name and the trademark are to be considered. The Panel finds that the disputed domain name is not confusingly similar to Complainant's BRIDGEWATER mark for purposes of paragraph 4(a)(i) of the Policy.
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 Prods., Inc. v. Entm't Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006).
The disputed domain name corresponds closely to Complainant's own domain name, and apparently its sole use has been in connection with a website designed to exploit confusion with Complainant and mislead Internet users into providing personal information to Respondent for fraudulent purposes. See Morgan Stanley v. Xie Jun / Xie Jun, FA 1595242 (Nat. Arb. Forum Jan. 12, 2015) (finding lack of rights or legitimate interests in similar circumstances). 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.
Finally, Complainant must show that the disputed domain name was registered and has been 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's registration and use of the disputed domain name for what appears to be a fraudulent phishing scheme aimed at Complainant's clients or potential clients is evidence of bad faith under paragraphs 4(b)(iii) and 4(b)(iv). See, e.g., Morgan Stanley, supra. The Panel finds that the disputed domain name was registered and is being used in bad faith.
Having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be DENIED.
Accordingly, it is Ordered that the <bwater.site> domain name REMAIN WITH Respondent.
David E. Sorkin, Panelist
Dated: October 19, 2015
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