Euroclear Plc. v. Administrator, Euroclear Inquiry
Claim Number: FA0701000886431
Complainant is Euroclear Plc. (“Complainant”), represented by Ryan
M. Kaatz, of Ladas & Parry,
Digital Brands Practice,
REGISTRAR
AND DISPUTED DOMAIN NAME
The domain name at issue is <euroclear-inquiry.com>, registered with Network Solutions, Inc.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Judge Harold Kalina (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on January 10, 2007; the National Arbitration Forum received a hard copy of the Complaint on January 16, 2007.
On January 10, 2007, Network Solutions, Inc. confirmed by e-mail to the National Arbitration Forum that the <euroclear-inquiry.com> domain name is registered with Network Solutions, Inc. and that Respondent is the current registrant of the name. Network Solutions, Inc. has verified that Respondent is bound by the Network Solutions, Inc. registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy").
On January 22, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of February 12, 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@euroclear-inquiry.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On February 19, 2007, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Judge Harold Kalina (Ret.) as Panelist.
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 <euroclear-inquiry.com> domain name is confusingly similar to Complainant’s EUROCLEAR mark.
2. Respondent does not have any rights or legitimate interests in the <euroclear-inquiry.com> domain name.
3. Respondent registered and used the <euroclear-inquiry.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Euroclear Plc., owns Euroclear Bank, which in
turn operates the Euroclear System, a principal clearinghouse for securities
traded in the European market. Euroclear
operates in over 25 equity markets and over 30 bond markets worldwide and acts
as the central securities depository for the Dutch, French, Irish, and
Respondent registered the <euroclear-inquiry.com> domain name on September 10, 2006. Respondent’s domain name resolves to a website asking Internet users to enter a “Secure Login” and password.
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 has established rights in the EUROCLEAR mark through registration with the USPTO. See Innomed Techs., Inc. v. DRP Servs., FA 221171 (Nat. Arb. Forum Feb. 18, 2004) (“Registration of the NASAL-AIRE mark with the USPTO establishes Complainant's rights in the mark.”); see also Vivendi Universal Games v. XBNetVentures Inc., FA 198803 (Nat. Arb. Forum Nov. 11, 2003) (“Complainant's federal trademark registrations establish Complainant's rights in the BLIZZARD mark.”).
Respondent’s <euroclear-inquiry.com> domain name is confusingly similar to Complainant’s mark. Respondent’s disputed domain name features Complainant’s EUROCLEAR mark in its entirety and adds the generic term “inquiry” along with a hyphen. In Quixtar Inv., Inc. v. Smithberger, D2000-0138 (WIPO Apr. 19, 2000), the panel held that the respondent’s incorporation of the QUIXTAR mark in the <quixtar-sign-up.com> domain name in its entirety, failed to differentiate the disputed domain name under the policy. In the analogous case Tesco Pers. Fin. Ltd. v. Domain Mgmt. Servs., FA 877982 (Nat. Arb. Forum February 13, 2007), the panel found when discussing the confusingly similar nature of the respondent’s <tesco-finance.com> domain name that the combination of a common term with a hyphen does not prevent a domain name from being found confusingly similar. As a result, the Panel finds in the instant case that Respondent’s <euroclear-inquiry.com> domain name is confusingly similar to Complainant’s EUROCLEAR mark pursuant to Policy ¶ 4(a)(i).
The Panel finds that Policy ¶ 4(a)(i)
has been satisfied.
Complainant contends that Respondent lacks all rights or legitimate interests in the <euroclear-inquiry.com> domain name. In certain instances, such allegations may be sufficient to establish a prima facie case under Policy ¶ 4(a)(ii), thus, shifting the burden to Respondent to set forth concrete evidence that it does possess rights or legitimate interests in the disputed domain name. See Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (holding that, where the complainant has asserted that the respondent has no rights or legitimate interests with respect to the domain name, it is incumbent on the respondent to come forward with concrete evidence rebutting this assertion because this information is “uniquely within the knowledge and control of the respondent”); see also Clerical Med. Inv. Group Ltd. v. Clericalmedical.com, D2000-1228 (WIPO Nov. 28, 2000) (finding that, under certain circumstances, the mere assertion by the complainant that the respondent has no right or legitimate interest is sufficient to shift the burden of proof to the respondent to demonstrate that such a right or legitimate interest does exist).
Respondent’s domain name resolves to a website inviting Internet users to enter their “Secure Login” and password. Complainant operates as a central depository for various countries’ securities markets. As a result of Complainant’s business, Complainant’s customers are required to use a password-protected account in order to access Complainant’s services. The Panel infers, therefore, that Respondent is using the confusingly similar <euroclear-inquiry.com> domain name to operate a scheme apparently attempting to defraud Complainant’s customers of their personal information. The Panel finds that Respondent has failed to use the disputed domain name in connection with a bona fide offering of goods or services under Policy ¶ 4(c)(i) or in connection with a legitimate non-commercial or fair use pursuant to Policy ¶ 4(a)(iii). See HOPE worldwide, Ltd. v. Jin, FA 320379 (Nat. Arb. Forum Nov. 11, 2004) (finding 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 of Policy ¶¶ 4(c)(i) or (iii)); see also Juno Online Servs., Inc. v. Nelson, FA 241972 (Nat. Arb. Forum Mar. 29, 2004) (finding 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).
Moreover, Complainant contends that Respondent is neither commonly known by the <euroclear-inquiry.com> domain name nor licensed to register names featuring Complainant’s EUROCLEAR mark. Without evidence suggesting otherwise, the Panel finds Respondent is not commonly known by the disputed domain name and has therefore failed to establish rights or legitimate interests pursuant to Policy ¶ 4(c)(ii). See Charles Jourdan Holding AG v. AAIM, D2000-0403 (WIPO June 27, 2000) (finding no rights or legitimate interests where (1) the respondent is not a licensee of the complainant; (2) the complainant’s prior rights in the domain name precede the respondent’s registration; (3) the respondent is not commonly known by the domain name in question); see also Compagnie de Saint Gobain v. Com-Union Corp., D2000-0020 (WIPO Mar. 14, 2000) (finding 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).
The Panel finds that Policy ¶ 4(a)(ii)
has been satisfied.
Respondent is using the <euroclear-inquiry.com> domain name to operate a website that attempts to fraudulently obtain personal information from Internet users seeking Complainant’s services. The Panel finds that such use is clear evidence of Respondent’s bad faith registration and use pursuant to Policy ¶ 4(a)(iii). See Capital One Fin. Corp. v. Howel, FA 289304 (Nat. Arb. Forum Aug. 11, 2004) (finding bad faith registration and use because the respondent used the domain name to redirect Internet users to a website that imitated the complainant’s website and to fraudulently acquire personal information from the complainant’s clients); see also HOPE worldwide, Ltd. v. Jin, FA 320379 (Nat. Arb. Forum Nov. 11, 2004) (finding that the respondent registered and used the domain name in bad faith because it redirected Internet users to a website that was used to fraudulently acquire personal information from the complainant’s potential associates).
Moreover, the Panel finds that Respondent’s use will likely
cause confusion among Internet users as to Complainant’s sponsorship of or
affiliation with the disputed domain name.
Such use is further evidence of bad faith registration and use pursuant
to Policy ¶ 4(b)(iv).
See H-D
Michigan, Inc. v. Petersons Auto., FA 135608 (Nat. Arb. Forum Jan.
8, 2003) (finding that the disputed domain name was registered and used in bad
faith pursuant to Policy ¶ 4(b)(iv) through the
respondent’s registration and use of the infringing domain name to
intentionally attempt to attract Internet users to its fraudulent website by
using the complainant’s famous marks and likeness); see also Am. Univ. v. Cook, FA 208629 (Nat. Arb. Forum Dec. 22, 2003) (“Registration
and use of a domain name that incorporates another's mark with the intent to
deceive Internet users in regard to the source or affiliation of the domain
name is evidence of bad faith.”).
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 <euroclear-inquiry.com> domain name be TRANSFERRED from Respondent to Complainant.
Judge Harold Kalina (Ret.), Panelist
Dated: February 22, 2007
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