Complainant is Voltage Finance LLC, United States of America (“United States”), represented by Snell & Wilmer, L.L.P., United States.
Respondent is Domain Administrator, See PrivacyGuardian.org / Mary Eggermont, United States. 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 2, 2020. On December 3, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On December 3, 2020, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the Domain Name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to Complainant on December 4, 2020 providing the registrant and contact information disclosed by the Registrar, and inviting Complainant to submit an amendment to the Complaint. Complainant filed an amended Complaint on December 4, 2020. 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 Respondent of the Complaint, and the proceedings commenced on December 8, 2020. In accordance with the Rules, paragraph 5, the due date for Response was December 28, 2020. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on December 29, 2020. The Center appointed Robert A. Badgley as the sole panelist in this matter on January 8, 2021. 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 Voltage Finance LLC, a Delaware corporation, is an affiliate of Guggenheim Partners, LLC, which Complainant describes as “a global leader in investment and advisory financial services”. Complainant describes itself as “an investment vehicle operating under the names and marks VOLTAGE FINANCE and VOLTAGE FINANCE LC since 2013”. Annexed to the Complaint are a series of articles published in finance industry periodicals which refer to Complainant and its investment services. The Domain Name was registered on August 27, 2020. The Domain Name resolves to a website which, according to Complainant, purports falsely to be Complainant’s own website. Respondent’s website purports to offer investment and financial services like Complainant’s. The site also lists Complainant’s street address as its own, identifies Complainant’s Securities and Exchange Commission identification number as its own, and features the profiles of certain individuals who are, in fact, members of Complainant’s Board of Directors. According to Complainant, and email documents annexed to the Complaint, Respondent has also used the Domain Name to create fake email addresses, which addresses Respondent has used to impersonate actual Complainant employees in aid of a fraudulent phishing scam. 5. Parties’ Contentions A. Complainant Complainant contends that it has satisfied each of the elements required under the Policy for a transfer of the Domain Name. B. Respondent Respondent did not reply to Complainant’s contentions. 6. Discussion and Findings Paragraph 4(a) of the Policy lists the three elements which Complainant must satisfy with respect to the Domain Name: (i) the Domain Name is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and (ii) Respondent has no rights or legitimate interests in respect of the Domain Name; and (iii) the Domain Name has been registered and is being used in bad faith. A. Identical or Confusingly Similar The Panel concludes that Complainant has unregistered trademark rights in the trademark VOLTAGE FINANCE through use demonstrated in the record. The Panel also concludes that the Domain Name is confusingly similar to that mark. The VOLTAGE FINANCE mark is clearly recognizable within the Domain Name. The additional letters “llc” are not sufficient differences to diminish the confusing similarity between the mark and the Domain Name. Indeed, in the circumstances of this case, where Respondent is seeking not only to pass off its services as Complainant’s but also to impersonate Complainant, the additional “llc” even confirms the confusing similarity. See Marlette Funding, LLC v. Michael Ard,WIPO Case No. D2018-0064 (transferring Complainant has established Policy paragraph 4(a)(i). B. Rights or Legitimate Interests Pursuant to paragraph 4(c) of the Policy, Respondent may establish its rights or legitimate interests in the Domain Name, among other circumstances, by showing any of the following elements: (i) before any notice to you [Respondent] of the dispute, your use of, or demonstrable preparations to use, the Domain Name or a name corresponding to the Domain Name in connection with a bona fide offering of goods or services; or (ii) you [Respondent] (as an individual, business, or other organization) have been commonly known by the Domain Name, even if you have acquired no trademark or service mark rights; or (iii) you [Respondent] are making a legitimate noncommercial or fair use of the Domain Name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue. The Panel concludes that Respondent lacks rights or legitimate interests in respect of the Domain Name. Respondent has not come forward in this proceeding to articulate or prove his bona fides vis-à-vis the Domain Name. On the record before the Panel, it is undisputed that Complainant has had no relationship with Respondent, and has never authorized Respondent to use its VOLTAGE FINANCE trademark in a domain name or otherwise. Respondent’s use of the Domain Names to host a fraudulent commercial website and create fake email addresses in aid of a phishing scam cannot be considered a legitimate reason for registering the Domain Name. As set forth in section 2.13.1 of WIPO Overview 3.0: “Panels have categorically held that the use of a domain name for illegal activity (e.g., the sale of counterfeit goods or illegal pharmaceuticals, phishing, distributing malware, unauthorized account access/hacking, impersonation/passing off, or other types of fraud) can never confer rights or legitimate interests on a respondent.” See also BTWN Exhibits, LLC v. Registration Private, Domains By Proxy, LLC / Ahmed Fawzy, ASM Marketing,WIPO Case No. D2020-0036 (“[t]he use of the Domain Name for an illegal activity such as constructing an email composition containing the Domain Name for deceiving purposes can never confer rights or legitimate interests on Respondent”). Complainant has established Policy paragraph 4(a)(ii). C. Registered or Used in Bad Faith Paragraph 4(b) of the Policy provides that the following circumstances, “in particular but without limitation”, are evidence of the registration and use of the Domain Name in “bad faith”: (i) circumstances indicating that Respondent has registered or has acquired the Domain Name primarily for the purpose of selling, renting, or otherwise transferring the Domain Name registration to Complainant who is the owner of the trademark or service mark or to a competitor of that Complainant, for valuable consideration in excess of its documented out of pocket costs directly related to the Domain Name; or (ii) that 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) that Respondent has registered the Domain Name primarily for the purpose of disrupting the business of a competitor; or (iv) that by using the Domain Name, Respondent has intentionally attempted to attract, for commercial gain, Internet users to Respondent’s website or other online location, by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website or location or of a product or service on Respondent’s website or location. The Panel concludes that Respondent registered and used the Domain Name in bad faith. Respondent clearly had Complainant and its trademark in mind when registering the Domain Name. This is apparent by the use to which Respondent has put the Domain Name, including: (1) to host a fake website impersonating Complainant; and (2) to create fake email addresses to advance a fraudulent phishing scam. This phishing scam is clearly a fraudulent and bad faith use of the Domain Name. Complainant has established Policy paragraph 4(a)(iii). 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 Domain Name Robert A. Badgley
Sole Panelist
Date: January 18, 2021
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