The Complainant is OptionsHouse LLC of Chicago, Illinois, United States of America (“US”), represented by PEAK6 Investments L.P., US.
The Respondent is Sergey Parnyakov of Moscow, Russian Federation. 2. The Domain Name and Registrar
The disputed domain name is registered with T, Inc. (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 18, 2013. On April 18, 2013, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On April 19, 2013, 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 April 24, 2013. In accordance with the Rules, paragraph 5(a), the due date for Response was May 14, 2013. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on May 15, 2013.
The Center appointed Miguel B. O'Farrell as the sole panelist in this matter on June 4, 2013. 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
The Complainant registered the service mark OPTIONSHOUSE on the Principal Register of the United States Patent and Trademark Office (USPTO) on November 20, 2007 under No. 3338538 for “Financial services, namely, providing securities brokerage services and options brokerage services via direct link online computer connections and via multi-user global computer information networks; processing financial transactions for others, namely, operating a trading platform to facilitate execution of financial transactions in securities, options and other financial instruments on financial exchanges market centers; providing financial information in the fields of real time financial market data, securities, options and mutual fund quotes all by means of a multiple user global network”, in International Class 36, and for “Providing temporary use of non-downloadable computer software via a global computer network for the purpose of providing users with an online stock and options brokerage trading platform”, in International Class 42.
Also, the Complainant holds a service mark registration No. 3338539 OPTIONSHOUSE and Triangle Device dated November 20, 2007 for the same above-mentioned services and in the same classes.
On April 5, 2013, the disputed domain name was registered. 5. Parties’ Contentions A. Complainant
The Complainant contends that it has rights in certain Word Marks and Shapes pursuant to filings with the United States Patent and Trademark Office, such as USPTO Registration No. 77091341 since November 20, 2007 and USPTO Registration No. 77091318 since November 20, 2007.
Based on its above-mentioned service marks rights, the Complainant contends that the Respondent´s disputed domain name is likely to cause confusion among consumers and users of the Complainant’s domain name .
The Complainant further claims that: is an online options broker that provides non-professional traders with proprietary risk management technology, low prices to trade and reliable execution; the disputed domain name and the Complainant’s domain name are confusingly similar because they are alike syntactically; the Respondent without permission from the Complainant has copied for use on its site the following from and concerning the Complainant: 1) its corporate logo; 2) its homepage layout and verbiage and 3) its links and verbiage on linked pages in order to offer identical online options brokerage services to customers.
Moreover, the Complainant affirms that it has no evidence that the Respondent is using the disputed domain name in connection with bona fide offering of goods or services or that the Respondent has been commonly known by such name prior to the receipt of the Complaint. The Complainant believes that the Respondent is using the disputed domain name with intent for commercial gain by fishing information from and defrauding customers of the Complainant.
Finally, the Complainant contends that the Respondent registered the disputed domain name with the intent to create a likelihood of confusion with the Complainant’s domain name and service mark, thereby attracting online customers of the Complainant for its own commercial gain and requests the Panel to order the transfer of the disputed domain name to the Complainant. 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 in accordance with the Policy, Rules, Supplemental Rules and any principles of law that it deems applicable. A. Identical or Confusingly Similar
The Panel finds that the disputed domain name is almost identical and confusingly similar to the service mark OPTIONSHOUSE in which the Complainant has rights through its trademark registration and use. Hence, the Panel finds that the Complainant has succeeded on this first element of 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(a) sets out various ways in which 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 submitting evidence 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 shifted to the Respondent, who did not reply to the Complainant’s contentions and, therefore, has not made such showing.
For these reasons, and in 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
Almost six years after the Complainant registered the service mark OPTIONSHOUSE to identify its online brokerage services, the disputed domain name was registered.
As stated by the Complainant and on the basis of a printout of the website to which the disputed domain name resolves, the Respondent has copied for use on its site the Complainant’s corporate logo and also, to a certain extent, its homepage layout and verbiage and its links and verbiage on linked pages to offer identical online options brokerage services to its customers.
In the absence of a rebuttal by the Respondent, the Panel finds that by registering and 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 trademarks as to source, sponsorship, affiliation or endorsement of the Respondent’s websites.
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 succeeded in making out the third element of the 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
Date: June 18, 2013
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