The Complainant is Moore Capital Management LP of New York, New York, United States of America (“United States” or “USA”), represented by Akin, Gump, Strauss, Hauer & Feld, United States.
The Respondent is Domain Administrator, PrivacyG of Phoenix, Arizona, United States / Name Redacted.1 2. The Domain Name and Registrar
The disputed domain name (“Disputed Domain Name”) is registered with NameSilo, LLC. The additional disputed domain name (“Additional Domain Name”) is registered with PublicDomainR. The abovementioned domain names are, hereinafter jointly referred to as the (“Disputed Domain Names”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 23, 2017. On August 24, 2017, the Center transmitted by email to NameSilo, LLC, a request for registrar verification in connection with the Disputed Domain Name. On the same day, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the Disputed Domain Name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on August 25, 2017, providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on August 25, 2017.
The Center verified that the Complaint together with the amended 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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on August 29, 2017. In accordance with the Rules, paragraph 5, the due date for Response was September 18, 2017. On September 17, September 18, and September 21, 2017, the Center received email communications from an individual who indicated that the Disputed Domain Name had been registered using that individual’s contact details without that individual’s consent, and that it believed it had been the victim of identity theft. Such individual therefore requested that its name be redacted from the decision issued by the Panel.
The Center appointed Gabriela Kennedy as the sole panelist in this matter on September 29, 2017. 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.
On October 9, 2017, the Complainant sent an email to the Center, requesting the addition of the Additional Domain Name to this proceeding. The Panel considered the Complainant’s request and requested the Center to obtain registrar verification for the Additional Domain Name and, upon such verification, notify the Respondent that the Additional Domain Name has been added to this proceeding. The Panel then issued Procedural Order No. 1 on October 17, 2017 to notify the Respondent of its October 22, 2017 deadline to submit any comments in relation to the Additional Domain Name. The Respondent did not submit any comments by the October 22, 2017 deadline. 4. Factual Background
The Complainant is a private investment management firm with offices in the USA, Hong Kong, China and the United Kingdom of Great Britain and Northern Ireland (“UK”). Since 1989, the Complainant and its affiliates have been using the MOORE CAPITAL trade mark. The Complainant owns several trade marks registered in the USA, the European Union and Hong Kong, China which incorporate “Moore Capital”, including United States trade mark MOORE CAPITAL MANAGEMENT LP, registered on October 21, 2003 under registration number 2775368 (“MOORE CAPITAL Marks”).
The Disputed Domain Name was registered on June 12, 2017. The Additional Domain Name was registered on September 12, 2017. The Disputed Domain Name currently resolves to an inactive web page, and used to resolve to a website purporting to provide investment and trading-related services. The Additional Domain Name still resolves to said website. 5. Parties’ Contentions A. Complainant
The Complainant’s contentions can be summarized as follows:
(a) The Complainant owns registered rights in the MOORE CAPITAL Marks in the USA, UK and Hong Kong, China, the earliest of which was registered in the USA on October 21, 2003. Since 1994, the Complainant has owned the domain name , which resolves to the Complainant’s official website.
(b) On or around July 19, 2017, the Complainant became aware of the Disputed Domain Name, which resolved to a website purporting to provide investment and trading-related services under the MOORE CAPITAL INDEX mark. On or around October 9, 2017, the Complainant became aware of the Additional Domain Name which resolves to the same website. The Complainant carried out an investigation into the Disputed Domain Name and the Respondent, and could not identify any legitimate business connected with the Respondent’s website. The Financial Conduct Authority’s website revealed no reference to “Moore Capital Index”. On July 27, 2017, the Complainant sent the Respondent a cease and desist letter. The Respondent never responded to the letter.
(c) The most distinguishing part of the Disputed Domain Names is “Moore Capital”, which is confusingly similar to the Complainant’s MOORE CAPITAL Marks. The use of the words “index” or “markets” in the Disputed Domain Name does nothing to distinguish the Disputed Domain Names from the Complainant’s MOORE CAPITAL Marks.
(d) The Respondent has no rights or legitimate interests in the Disputed Domain Names. The Respondent is in no way connected to the Complainant and has been using the Disputed Domain Names to intentionally mislead Internet users by impersonating the Complainant in order to perpetuate investment fraud. Given the international fame of the Complainant prior to the registration of the Disputed Domain Names, the Respondent must have been aware of the Complainant and its MOORE CAPITAL Marks when the Respondent registered the Disputed Domain Names.
(e) The Respondent registered and is using the Disputed Domain Names in bad faith. The Disputed Domain Names were registered by Respondent using a privacy shield service hiding its identity. No legitimate business is being operated by the Respondent in relation to the website to which the Disputed Domain Names resolve. The address provided on the Respondent’s website is only for an office rental company, and calls made to the listed telephone number are simply diverted to a voice mail messaging system. B. Respondent
As mentioned above, the Center received communications in relation to the Disputed Domain Name, claiming to have been the victim of identity theft. No substantive Response to the Complaint was submitted.
The fact that the Respondent has not submitted a Response does not automatically result in a decision in favor of the Complainant. However, the failure of the Respondent to file a Response may result in the Panel drawing appropriate inferences from such default. The Panel may also accept all reasonable and supported allegations and inferences flowing from the Complaint as true (see, Entertainment Shopping AG v. Nischal Soni, Sonik Technologies,WIPO Case No. D2009-1437 and Charles Jourdan Holding AG v. AAIM,WIPO Case No. D2000-0403). 6. Discussion and Findings
Under paragraph 4(a) of the Policy, the Complainant is required to prove each of the following three elements:
(i) the Disputed Domain Names are identical or confusingly similar to a trade mark 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 Names; and
(iii) the Disputed Domain Names have been registered and are being used by the Respondent in bad faith. A. Identical or Confusingly Similar
The Panel accepts that the Complainant has rights in the MOORE CAPITAL Marks, based on its registrations in Hong Kong, China, UK and the USA.
The Disputed Domain Names incorporate the words “moore capital” which are confusingly similar to the Complainant’s MOORE CAPITAL Marks. The words “index” and “markets”, as used in the Disputed Domain Names, are descriptive terms. It is well established that where the distinctive and prominent element of a disputed domain name is the complainant’s mark, and the only difference is a descriptive term, such an addition does not negate the confusing similarity between the disputed domain name and the mark (see, Oakley, Inc. v. Joel Wong/BlueH- INC,WIPO Case No. D2010-0100; Diageo Ireland v. Guinnessclaim,WIPO Case No. D2009-0679; and The Coca-Cola Company v. Whois Privacy Service,WIPO Case No. D2010-0088).
The Panel finds that of the Complainant’s MOORE CAPITAL Marks are clearly recognizable in the Disputed Domain Names, and the addition of “index” or “market” does not avoid a finding of confusing similarity with the Complainant’s trade mark.
It is also well established that in making an enquiry as to whether a trade mark is identical or confusingly similar to a domain name, the generic Top-Level Domain (“gTLD”) extensions, in this case “.com”, may be disregarded (see, Rohde & Schwarz GmbH & Co. KG v. Pertshire Marketing, Ltd., WIPO Case No. D2006-0762).
The Panel accordingly finds that paragraph 4(a)(i) of the Policy is satisfied. B. Rights or Legitimate Interests
Section 2.1 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”) states that once a complainant establishes a prima facie case in respect of the lack of rights or legitimate interests of a respondent, the burden of production shifts to the respondent to come forward with evidence demonstrating that it has rights or legitimate interests in the domain name. Where the respondent fails to do so, a complainant is deemed to have satisfied paragraph 4(a)(ii) of the Policy.
The Panel accepts that the Complainant registered and began using the MOORE CAPITAL Marks many years before the Disputed Domain Names were registered by the Respondent, and the Complainant has never authorized the Respondent to use its trade mark. The Panel is of the view that a prima facie case has been established and it is for the Respondent to prove that it has rights or legitimate interests in the Disputed Domain Names. As the Respondent has not submitted a Response to the Complainant’s contentions, the Panel will assess the case based on the reasonable inferences that can be drawn from the Complainant’s evidence.
Pursuant to paragraph 4(c) of the Policy, the Respondent may establish rights or legitimate interests in the Disputed Domain Names by demonstrating any of the following:
(i) before any notice to it of the dispute, the Respondent’s use of, or demonstrable preparations to use the Disputed Domain Names or names corresponding to the Disputed Domain Names was in connection with a bona fide offering of goods or services; or
(ii) the Respondent has been commonly known by the Disputed Domain Names, even if it has acquired no trade mark or service mark rights; or
(iii) the Respondent is making a legitimate noncommercial or fair use of the Disputed Domain Names, without intent for commercial gain to misleadingly divert consumers or to tarnish the trade mark or service mark at issue.
The Respondent has not provided any evidence to demonstrate that it has become commonly known by the Disputed Domain Names, or names corresponding to them. The Disputed Domain Name is currently inactive, but based on the screenshots provided by the Complainant as at August 18, 2017, it used to resolve to a website that allegedly offered investment and trading-related services and was identical to the website at the Additional Domain Name (the “Respondent Website”).
Even if the Respondent Website was offering genuine services, the Panel finds that such use cannot amount to a bona fide offering of services since the Respondent is using the Respondent Website to offer services in the same industry as the Complainant, and the Disputed Domain Names are confusingly similar to the Complainant’s MOORE CAPITAL Marks. As held by the panel in Microchip Technology, Inc. v. Milos Krejcik and EDI Corporation, d/b/a A,WIPO Case No. D2001-0337, although the respondent had been offering legitimate goods for sale prior to any notice of dispute, as the respondent used the domain name to resolve to a website where users were likely to be confused as to whether the site was affiliated with the complainant, the respondent could not be bona fide and did not have legitimate rights or interests in the domain name.
Based on the foregoing, and the fact that the Disputed Domain Names are confusingly similar to the Complainant’s MOORE CAPITAL Marks, the Panel finds that the Respondent had been using the Disputed Domain Names with the intent of misleadingly diverting consumers to the Respondent Website in order to make a commercial gain by offering services that directly compete with the Complainant. Such use cannot confer any rights or legitimate interests to the Respondent in the Disputed Domain Names.
The Panel finds that the Complainant has satisfied paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith
The Panel accepts that the Respondent is likely to have known of the Complainant’s MOORE CAPITAL Marks at the time it registered the Disputed Domain Names, and registered and used them in bad faith, based on the following:
(a) The Respondent acquired the Disputed Domain Names on June 12 and September 12, 2017, which was many years after the Complainant first began using its MOORE CAPITAL Marks in its business.
(b) The Respondent has been using the Disputed Domain Names to offer services that compete with the Complainant’s business.
(c) The Disputed Domain Names are confusingly similar to the Complainant’s MOORE CAPITAL Marks.
The above cannot be mere coincidence. The Panel believes that the Respondent registered and used the Disputed Domain Names with the intent of trading on the reputation of the Complainant’s MOORE CAPITAL Marks to attract Internet users to the Respondent Website, by creating a likelihood of confusion with the Complainant’s MOORE CAPITAL Marks as to the source, sponsorship, affiliation, or endorsement of the Respondent Website, for commercial gain.
Further, the Respondent registered the Disputed Domain Names through a proxy service provider and appears to have used a third party’s identity as the underlying registrant, providing false contact details. The registrant on record denies having any knowledge of the Disputed Domain Names and claims to be a victim of identity theft which it has reported to the relevant authorities. This is textbook evidence of bad faith.
The Panel therefore finds that paragraph 4(a)(iii) of the Policy is satisfied. 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 Names, and , be transferred to the Complainant.
Gabriela Kennedy
Sole Panelist
Date: October 31, 2017
1 The Respondent appears to have used the name of a third party employed by the Complainant in the registration of the Disputed Domain Names. In light of this potential identity theft, the Panel has redacted the Respondent’s name from the caption and body of this decision. Attached as Annex 1 to this decision is the Panel’s instruction to the Registrars regarding transfer of the Disputed Domain Names, including the Respondent’s name. The Panel has authorized the Center to transmit Annex 1 to the Registrar as part of the order in this proceeding, but has indicated that Annex 1 to this decision shall not be published due to the circumstances of this case.
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