The Complainant is Apollo Global Management, LLC of New York, New York, United States of America (“U.S.”) represented by Paul, Weiss, Rifkind, Wharton & Garrison, U.S.
The Respondent is Fundacion Private Whois of Panama, Panama. 2. The Domain Name and Registrar
The disputed domain name is registered with I Corp. (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 8, 2012. On October 9, 2012, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On October 12, 2012, the Registrar transmitted by email to the Center its verification response confirming that the 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” or “UDRP”), 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 the Respondent of the Complaint, and the proceedings commenced on October 12, 2012. In accordance with the Rules, paragraph 5(a), the due date for Response was November 1, 2012. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on November 6, 2012.
The Center appointed Miguel B. O’Farrell as the sole panelist in this matter on November 13, 2012. 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.
Both parties submitted supplemental filings.
None of the supplemental filings will be considered by the Panel as they have neither sufficient relevance to the case nor exceptional circumstances for admission, as per paragraph 10 and 12 of the Rules. 4. Factual Background
The Complainant owns a US trademark registration for APOLLO GLOBAL MANAGEMENT, Reg. No. 4056671, granted on November 15, 2011.
The Complainant is one of the world’s largest alternative investment managers, with total assets under management in excess of USD 105 billion.
The disputed domain name was registered on January 20, 2012. 5. Parties’ Contentions A. Complainant
The Complainant contends the following:
The Complainant contends that it is one of the world’s largest alternative investment managers, with total assets under management in excess of USD 105 billion.
Moreover, the Complainant contends that it owns, controls and operates Apollo Global Securities, LLP, a broker-dealer of the Complainant.
The Complainant also contends that the disputed domain name is confusingly similar to the Complainant’s trademark APOLLO GLOBAL MANAGEMENT, registered in the United States under Reg. No. 4056671.
The Complainant also contends that the Respondent does not have any rights or legitimate interests in the disputed domain name and that the Respondent is not affiliated, nor has been authorized or licensed to use and register the Complainant’s trademark APOLLO GLOBAL MANAGEMENT, nor to seek registration of any domain name confusingly similar to it.
Additionally, the Complainant also contends that the Respondent is not commonly known by the name “Apollo” or “Apollo Global Securities” and that by using the disputed domain name resolves to a website on the basis of which the Respondent is misleadingly trying to pass itself off as the Complainant or the broker Apollo Global Securities, LLC, therefore, it is not using the disputed domain name in connection with a bona fide offering of goods or services.
In that connection, the Complainant contends that the Respondent was aware, or must have been aware of the Complainant’s business, its trademark APOLLO GLOBAL MANAGEMENT and its broker Apollo Global Securities, LLC, before registering the disputed domain name.
For all the above, the Complainant requests the transfer of the disputed domain name. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
For the Complainant to succeed in this proceeding, under paragraph 4(a) of the Policy, it must prove that:
(i) the disputed domain name 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 in respect of the disputed domain name; and
(iii) the disputed domain name has been registered and is being used in bad faith.
In accordance with paragraph 15(a) of the Rules, the Panel shall decide the Complaint on the basis of the statements and documents submitted and in accordance with the Policy, the Rules, and any rules and principles of law that it deems applicable. A. Identical or Confusingly Similar
The Complainant owns trademark registrations for APOLLO GLOBAL MANAGEMENT, as noted under Section 4, “Factual Background” above.
The disputed domain name incorporates the two first words of the trademark APOLLO GLOBAL MANAGEMENT and replaces the third word “Management” by “Securities”.
In these circumstances, the Panel finds that the mere change to the disputed domain name of the word “Management” by “Securities” is not sufficient to avoid confusing similarity with the Complainant’s trademark APOLLO GLOBAL MANAGEMENT. The Panel also finds that the confusing similarity is reaffirmed by the fact that Apollo Global Securities, LLC - which is almost identical to the disputed domain name - is the name of a broker-dealer operated and doing business under the control of the Complainant.
In view of the foregoing, the Panel finds that the disputed domain name is confusingly similar to a trademark in which the Complainant has rights, and therefore, the Complainant has succeeded on this first element under the Policy. B. Rights or Legitimate Interests
According to paragraph 4(a)(ii) of the Policy, the second element that the Complainant must prove is that the Respondent has no rights or legitimate interests in respect of the disputed domain name. The Policy in paragraph 4(c) sets out various ways in which a respondent may demonstrate rights or legitimate interests in a domain name.
Although the Policy states that the complainant must prove each of the elements in paragraph 4(a), it is often observed that it is difficult for a complainant to prove a negative, i.e., that a respondent has no rights or legitimate interests in respect of a domain name. It has therefore become generally accepted under the Policy that, once a complainant has presented a prima facie showing of a respondent’s lack of rights or legitimate interests in a domain name, the burden of production therefore shifts to the respondent. The respondent must then by concrete evidence demonstrate its rights or legitimate interests in the domain name in order to refute the prima facie case.
The Panel finds that the Complainant has made a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name and so the burden of production has effectively been shifted to the Respondent, who did not reply to the Complainant’s contentions and, therefore, has not made such showing.
In that connection, the Complainant has submitted relevant evidence showing that the Respondent has not made a bona fide offering of goods or services. In fact, on the basis of the printouts of the website to which the disputed domain name resolves, submitted by the Complainant and which were not rebutted by the Respondent, it is clear that the Respondent is misleadingly trying to pass itself off as the Complainant or the broker Apollo Global Securities, LLC, pertaining to the Complaint.
In the terms of the Policy, such use in the present circumstances does not appear to be a noncommercial or fair use of the disputed domain name and, therefore, the Panel finds that the Respondent is trying to misleadingly divert consumers. Moreover, the Panel finds that the Respondent is attracting Internet users to its website for commercial gain. Such use cannot be considered a bona fide use, or fair or noncommercial use.
Additionally, as noted by the Complainant, there is no evidence that the Respondent is commonly known as or identified by “Apollo”, “Apollo “or “Apollo Global Securities”. Furthermore, there is no evidence showing that the Respondent operates a business or any other organization under the disputed domain name.
For these reasons, and in the absence of a plausible explanation from the Respondent, the Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name. C. Registered and Used in Bad Faith
According to paragraph 4(a)(iii) of the Policy, the third element that a complainant must prove is that the domain name has been registered and is being used in bad faith.
The Policy in paragraph 4(b) sets out various circumstances, which may be treated by the Panel as evidence of the registration and use of a domain name in bad faith.
The Complainant has identified itself as a one of the world’s largest alternative investment managers, with total assets under management in excess of USD 105 billion.
Moreover, the Complainant has filed relevant evidence to the Panel’s satisfaction showing that it owns a United Sates trademark registration for APOLLO GLOBAL MANAGEMENT, Reg. No. 4056671, which was registered before the disputed domain name was registered on January 20, 2012.
Furthermore, the Complainant has filed relevant evidence to the Panel’s satisfaction showing that Apollo Global Securities, LLP, which corporate name is identical to the disputed domain name , is a broker-dealer operated and doing business under the control of the Complainant.
In view of the foregoing, and in the absence of a rebuttal from the Respondent, the Panel finds that the Respondent was aware or must have been aware of the trademark APOLLO GLOBAL MANAGEMENT and the existence of the company Global Securities, LLP, before registering the disputed domain name, which evidences bad faith registration.
Moreover, as stated by the Complainant and on the basis of the printouts of the website to which the disputed domain name resolves, and in the absence of a rebuttal by the Respondent, the Panel finds that by using the disputed domain name the Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website, by creating a likelihood of confusion with the Complainant’s trademark, and is clearly misleadingly trying to pass itself off as the Complainant or the broker Apollo Global Securities, LLC, pertaining to the Complaint.
For these reasons, the Panel finds that the Respondent both registered and is using the disputed domain name in bad faith and that the Complainant has therefore made out the third element of its case. 7. Decision
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name be transferred to the Complainant.
Miguel B. O’Farrell
Sole Panelist
Dated: November 27, 2012
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