The Complainant is LLC Investment Company “Freedom Finance”, Russian Federation, represented internally.
The Respondent is Sergey Frolov, Germany.
2. The Domain Name and RegistrarThe disputed domain name
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 29, 2021. On October 1, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On October 1, 2021, 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 together with the amendment to 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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on October 11, 2021. In accordance with the Rules, paragraph 5, the due date for Response was October 31, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on November 2, 2021.
The Center appointed Assen Alexiev as the sole panelist in this matter on November 12, 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 BackgroundThe Complainant is a stock exchange broker, licensed to operate by the Central Bank of the Russian Federation in 2011.
The Complainant is the owner of the Russian trademark FREEDOM FINANCE with registration No. 553826, registered on October 6, 2015 for services in International Classes 35 and 36 (the “FREEDOM FINANCE trademark”).
The disputed domain name was registered on April 7, 2021. According to the evidence submitted by the Complainant, it resolved to a website featuring the Complainant’s FREEDOM FINANCE trademark and featuring different types of investment proposals with a “guaranteed income without mandatory invitations”. It is currently inactive.
5. Parties’ Contentions A. ComplainantThe Complainant states that the disputed domain name is identical to the FREEDOM FINANCE trademark, because it reproduces the word element of the trademark.
According to the Complainant, the Respondent has no rights or legitimate interests in respect of the disputed domain name, because it has not used the disputed domain name in connection with a bona fide offering of goods or services, is not commonly known by the disputed domain name, and has not acquired any trademark rights. The Complainant notes that the FREEDOM FINANCE trademark was registered in 2015 while the disputed domain name was registered in 2021.
The Complainant contends that the disputed domain name was registered and is being used in bad faith primarily for the purpose of disrupting the business of the Complainant by creating a resemblance to the Complainant’s FREEDOM FINANCE trademark and the services provided by the Complainant. The Complainant points out that under Article 38(3) of the Federal Law “On Investment Funds” of the Russian Federation, the management of an investment fund may be carried only by licensed entities, and the Respondent does not have such a license, so its activities are illegal.
B. RespondentThe Respondent did not reply to the Complainant’s contentions.
6. Discussion and FindingsPursuant to the Policy, paragraph 4(a), the Complainant must prove each of the following to justify the transfer of the disputed domain name:
(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 Respondent has registered and is using the disputed domain name in bad faith.
By the Rules, paragraph 5(c)(i), it is expected of a respondent to: “[r]espond specifically to the statements and allegations contained in the complaint and include any and all bases for the Respondent (domain name holder) to retain registration and use of the disputed domain name […].”
The Respondent has, however, not submitted a formal Response or disputed the Complainant’s contentions and evidence in this proceeding.
A. Identical or Confusingly SimilarThe Complainant has provided evidence that it is the owner of the FREEDOM FINANCE trademark. In view of this, the Panel accepts that the Complainant has established its rights in this trademark for the purposes of the present proceeding.
The Panel notes that a common practice has emerged under the Policy to disregard in appropriate circumstances the generic Top-Level Domain (“gTLD”) section of domain names for the purposes of the comparison under the Policy, paragraph 4(a)(i). See section 1.11.1 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”). The Panel sees no reason not to follow the same approach here, so it will disregard the “.fund” gTLD of the disputed domain name.
The disputed domain name incorporates the FREEDOM FINANCE trademark in its entirety without any other elements.
In view of the above, the Panel finds that the disputed domain name is identical to the FREEDOM FINANCE trademark in which the Complainant has rights.
B. Rights or Legitimate InterestsWhile the overall burden of proof in UDRP proceedings is on the complainant, UDRP panels have recognized that proving a respondent lacks rights or legitimate interests in a domain name may result in the often-impossible task of “proving a negative”, requiring information that is often primarily within the knowledge or control of the respondent. As such, where a complainant makes out a prima facie case that the respondent lacks rights or legitimate interests, the burden of production on this element shifts to the respondent to come forward with relevant evidence demonstrating rights or legitimate interests in the domain name. If the respondent fails to come forward with such relevant evidence, the complainant is deemed to have satisfied the second element. See section 2.1 of the WIPO Overview 3.0.
The Complainant contends that the Respondent has no rights or legitimate interests in the disputed domain name, because the FREEDOM FINANCE trademark was registered earlier, and the Respondent has not used the disputed domain name in connection with a bona fide offering of goods or services, but has used it for illegal activities. Thus, the Complainant has established a prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name.
The Respondent has not submitted a Response. It has not provided any arguments in support of the existence of any rights or legitimate interests in the disputed domain name, and has not denied the allegations of the Complainant or disputed the evidence that it has brought forward.
The disputed domain name is identical to the FREEDOM FINANCE trademark, which was first registered six years earlier, and is registered in the “.fund” gTLD, which suggests that it is related to a fund or to funding activities, which is similar to the activities of the Complainant. The evidence submitted by the Complainant shows that the website at the disputed domain name featured the Complainant’s FREEDOM FINANCE trademark and offers various investment opportunities, without including any disclaimer for the lack of relationship between the Parties.
In view of the above, and in the lack of any arguments or evidence to the contrary, the Panel concludes that it is more likely than not that the Respondent has targeted the FREEDOM FINANCE trademark with the registration of the disputed domain name in an attempt to improperly capitalize on the reputation and goodwill associated with this trademark by confusing and attracting to the disputed domain name Internet users looking for the Complainant’s services. In the Panel’s view, such conduct does not appear as legitimate and does not give rise to rights or legitimate interests of the Respondent in the disputed domain name.
Therefore, the Panel finds that the Respondent does not have rights or legitimate interests in the disputed domain name.
C. Registered and Used in Bad FaithParagraph 4(b) of the Policy lists four illustrative alternative circumstances that shall be evidence of the registration and use of a domain name in bad faith by a respondent, namely:
“(i) circumstances indicating that you have registered or you have 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 that complainant, for valuable consideration in excess of your documented out-of-pocket costs directly related to the domain name; or
(ii) you have 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 you have engaged in a pattern of such conduct; or
(iii) you have registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your website or other online location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of your website or location or of a product or service on your website or location.”
The disputed domain name is identical to the FREEDOM FINANCE trademark and was registered six years after it in the “.fund” gTLD, which suggests a relation to funds or funding activities, which is similar to the activities of the Complainant. The disputed domain name resolves to a website that includes the Complainant’s FREEDOM FINANCE trademark and offers various investment opportunities. There is however no disclaimer for the lack of relationship between the Parties.
In view of the above and in the lack of a denial by the Respondent of the arguments and evidence brought forward by the Complainant, the Panel concludes that the Respondent must have been well aware of the goodwill of the Complainant’s FREEDOM FINANCE trademark when it registered the disputed domain name, and that it is more likely that the Respondent registered and used it in an intentional attempt to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with the Complainant’s FREEDOM FINANCE trademark as to the source, sponsorship, affiliation, or endorsement of the Respondent’s website and of the investment offers featured on it.
In view of all the above, the Panel finds that the disputed domain name has been registered and is being used in bad faith.
7. DecisionFor 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
Assen Alexiev
Sole Panelist
Date: November 25, 2021