WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
eSpeed Government Securities, Inc. and Aqua Securities, L.P. v. aqua-securities
Case No. D2007-1661
1. The Parties
Complainants are eSpeed Government Securities, Inc., and Aqua Securities, L.P., both of New York, United States of America, represented by Kilpatrick Stockton, LLP, United States of America. Complainants are collectively referred to herein as “Complainant.”
Respondent is aqua-securities, of New York, United States of America.
2. The Domain Name and Registrar
The disputed domain name is registered with OnlineNIC, Inc.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 12, 2007. On November 13, 2007, the Center transmitted by email to OnlineNIC, Inc. a request for registrar verification in connection with the domain name at issue. On November 15, 2007, OnlineNIC, Inc. transmitted by email to the Center its verification response confirming that Respondent is listed as the registrant and providing the contact details. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).
In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified Respondent of the Complaint, and the proceedings commenced on November 15, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was December 5, 2007. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on December 6, 2007.
The Center appointed Lynda J. Zadra-Symes as the sole panelist in this matter on December 17, 2007. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.
4. Factual Background
Complainant Aqua Securities, L.P. was formally launched in early January 2007. Aqua Securities, L.P. (“Aqua Securities”) is a financial services company focusing on an innovative electronic equities trading platform for use by institutional investor, brokers and hedge funds. Together with its parent company, Complainant eSpeed Government Securities, Inc., Aqua Securities owns and/or uses the domain names and , which were registered on behalf of Complainants on January 3 and January 4, 2007, respectively. Since its inception, Complainant Aqua Securities has used the domain name in connection with a web site offering detailed information on Complainant and its services.
Shortly after its January 3, 2007, launch, Aqua Securities began using the AQUA SECURITIES and AQUA trade names and marks to promote its company and electronic trading platform. For example, Complainant has for several months been increasing its number of customers by negotiating and entering into electronic trading agreements with numerous third parties in the financial services industry. These electronic trading agreements prominently display the AQUA name and mark in a banner at the top of the agreement, and repeatedly reference the AQUA SECURITIES name and mark throughout the agreement. The AQUA SECURITIES name and mark has also been promoted through the quarterly earnings conference calls of eSpeed, Inc., a publicly traded company that is also an affiliate of Aqua Securities.
On January 3, 2007, Complainant issued a press release announcing the formation and launch of “Aqua Securities” and its electronic trading platform. This press release was widely disseminated on the Internet and in news articles and postings on financial Internet web logs. Since its launch, “Aqua Securities” has continued to garner substantial coverage in the press, web sites and the Internet blogging community. Aqua Securities has continued to issue press releases since January 3, 2007.
On January 3, 2007, Complainant applied for federal registration of the marks AQUA and AQUATRADE on the Principal Register of the U.S. Patent and Trademark Office. (U.S. Serial Nos. 77/075,364 and 77/075,362 respectively) for use in connection with a range of financial services, including financial trading and exchange services concerning securities and equities. Complainant has also applied internationally for numerous trademark registrations for the AQUA mark, including a Community Trademark (“CTM”) application (Serial No. 006066294); an Australian application (Serial No. 1185025); a Canadian application (Serial No. 1354177); a Hong Kong SAR of China application (Serial No. 900903654); a Singapore application (Serial No. T0714908Z), published); and a Japanese application (App. No. 2007-074859).
On June 29, 2007, several months after Complainant’s launch, Respondent registered the domain name and proceeded to post a website at the domain name under the name “Aqua Securities L.P.” Respondent repeatedly refers to itself on the website using the AQUA SECURITIES name and mark “Aqua Securities L.P.” and as AQUA Securities. Respondent also lists Complainant eSpeed Government Securities, Inc.’s address as Respondent’s contact information on the website at the domain name.
Respondent’s website at the domain name displays web pages of purported company history and business plans in which Respondent claims that it has “merged with Espeed Inc. [sic],” one of Complainant’s affiliates. This claimed merger is completely false.
5. Parties’ Contentions
A. Complainant
Complainant contends that the domain name is confusingly similar to the trademarks AQUA SECURITIES, AQUATRADE and AQUA, in which Complainant has rights, 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.
B. Respondent
Respondent did not reply to Complainant’s contentions.
6. Discussion and Findings
In order to succeed on its claim, Complainant must demonstrate that all of the elements enumerated in Paragraph 4(a) of the Policy have been satisfied:
(i) the domain name in dispute is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(ii) the Respondent has no rights or legitimate interests with respect to the domain name; and
(iii) the domain name has been registered and 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”.
A. Identical or Confusingly Similar
The disputed domain name is confusingly similar to Complainant’s AQUA and AQUATRADE marks in which Complainant own several trademark applications in the U.S. and other countries. The domain name also incorporates Complainants’ AQUA SECURITIES trademark in its entirety. Complainant has acquired rights to the mark ACQUA SECURITIES because of its continued use, promotion and widespread publicity relating to Complainant AQUA SECURITIES and its services. The addition of a hyphen in the domain name does not avoid a finding of confusing similarity.
The first criterion has been met.
B. Rights or Legitimate Interests
Respondent has not filed any response in this proceeding.
There is no relationship between Complainant and Respondent giving rise to any license, permission, or other right by which Respondent could own or use any domain name incorporating Complainant’s marks.
Respondent is not commonly known by the name “Aqua Securities L.P.” nor “eSpeed Government Securities, Inc”
Respondent is not using the domain name in connection with a bona fide offering of goods or services. Nor is Respondent making a legitimate noncommercial or fair use of the domain name. Rather, Respondent appears to have registered and is using the domain name solely for financial gain by passing itself off as Complainant AQUA SECURITIES and by deceiving Internet users.
Respondent has placed at the domain name links to an application form for allegedly opening an account with Respondent. This application form requires numerous types of confidential personal information, including the Internet user’s address, Social Security number, annual income, net worth and “Bank Info.” This appears to be a case of Internet “phishing” by which Respondent aims to steal valuable information from visitors to the website located at the domain name.
This is not a bona fide commercial use of a trademark or domain name.
The Panel finds that Respondent lacks rights or legitimate interests in the domain name in dispute.
C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy states circumstances which, if found, shall be evidence of the registration and use of the domain name in bad faith:
(i) circumstances indicating that Respondent has registered or acquired the domain name primarily for the purpose of selling, renting or otherwise transferring the domain name registration to the Complainant who is the owner of the trademark or service mark or to a competitor of the Complainant, for valuable consideration in excess of the documented out-of-pocket costs directly related to the domain name; or
(ii) Respondent has registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that Respondent has engaged in a pattern of such conduct; or
(iii) Respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, Respondent has intentionally attempted to attract, for commercial gain, Internet users to Respondent’s website 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 website or location of a product or service on Respondent’s website or location.
It should be noted that the circumstances of bad faith are not limited to the above.
By using the domain name, Respondent is attempting to attract, for commercial gain, Internet users to Respondent’s website by creating a likelihood of confusion with Complainants’ mark as to the source, sponsorship, affiliation or endorsement of Respondents’ website. Respondent appears to be using the domain name as a phishing expedition to defraud Internet users into providing their confidential personal information to Respondent.
Respondent’s bad faith is further evidenced by the fact that Respondent submitted false contact information to the registrar, by listing Complainant’s address and by using this false contact information and a false claim that Respondent had merged with eSpeed, Inc., Complainant’s affiliate.
Accordingly, the Panel finds that Respondent has registered and is using the domain name in bad faith.
7. Decision
For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name be transferred to Complainant.
Lynda J. Zadra-Symes
Sole Panelist
Dated: December 31, 2007
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