The Complainant is MHC (Services) Limited, United Kingdom, represented by Harbottle & Lewis LLP, United Kingdom.
The Respondent is Privacy Service Provided by Withheld for Privacy ehf, Iceland, / Millhousecapital Millhousecapital, Nigeria.
2. The Domain Name and RegistrarThe disputed domain name
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 20, 2021. On September 20, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On September 20, 2021, 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 the Complainant on September 21, 2021, 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 amendment to the Complaint on September 24, 2021.
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 September 27, 2021. In accordance with the Rules, paragraph 5, the due date for Response was October 17, 2021. The Respondent sent an informal email communication on September 29, 2021. The Center sent a possible settlement email to the Parties on September 29, 2021. The Complainant confirmed by email on October 5, 2021, that it did not wish to suspend the proceeding in order to discuss settlement options. The Center informed the Parties of its commencement of Panel Appointment process on October 18, 2021.
The Center appointed W. Scott Blackmer as the sole panelist in this matter on October 26, 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, which was named Millhouse Capital UK Limited until 2008, is a company incorporated in 2001 under the laws of England and Wales and forms part of a group of companies, which manage the financial interests of Russian-Israeli Roman Abramovich and companies of which he is ultimately a beneficiary. The Complainant provides consulting and management services to the companies in the group, which invests in companies and sponsors philanthropic initiatives around the world.
The record shows that the Complainant is frequently mentioned in press releases and media reports of group activities and transactions, and in those reports the name “Millhouse Capital” is commonly used to refer to the Complainant, both before and after the name change in 2008. This remains true in 2021. The Complainant maintains a social media presence via a “Millhouse Capital” LinkedIn page. This links to a Wikipedia article on “Millhouse Capital”, which the Complainant lists in its LinkedIn profile as the Complainant’s “website”. The Complainant claims MILLHOUSE CAPITAL as an unregistered trademark based on its continuous and well-publicized use of that name as a sign for the Complainant and its investment activities since 2008.
The Domain Name was registered on November 30, 2020 in the name of a domain privacy service. After receiving notice of the Complaint in this proceeding, the Registrar identified the underlying registrant as the Respondent “millhousecapital”, showing a postal address in Lagos, Nigeria and an email address using the domain name
The Registrar suspended its hosting services for the Domain Name in August 2021 at the Complainant’s request. At the time of this decision, the Domain Name resolves to an error message rather than an active website.
The Complaint attaches screenshots, however, of the website to which the Domain Name resolved in October 2021 (the “Respondent’s website”). The Respondent’s website advertised Bitcoin and other “cryptocurrency investment solutions” under the name “Millhouse Capital”. The “About Us” page described the Complainant: “Millhouse Capital is a British registered company created in 2001 to manage assets owned by the Russian businessman Roman Abramovich and his partners”. The page included an image of a false United Kingdom Companies House incorporation certificate for “Millhouse Capital Ltd” with a registration number that does not comport with an actual Companies House registration. The landing page of the Respondent’s website included two “customer reviews” with profile photos. The Complainant demonstrates with a reverse Internet search that these same pictures have appeared on multiple other websites, some of which appear to involve similar cryptocurrency investment scams. In the “Terms” page of the Respondent’s website, there was a statement claiming that the website operators were regulated by a number of financial services authorities, including those in the United Kingdom, Cyprus, South Africa, and Belize. The page lists registration number 600475 for the United Kingdom Financial Conduct Authority (FCA), but that is the FCA identification number for an unrelated financial firm called Forextime Ltd.
On the “Register” page of the Respondent’s website, visitors were invited to enter their personal information including, name, email addresses, Bitcoin Wallet Address, and ‘secret question and answer’ responses.
5. Parties’ Contentions A. ComplainantThe Complainant asserts that the Domain Name is identical or confusingly similar to its unregistered MILLHOUSE CAPITAL mark, which would be protected under the English common law tort doctrine of “passing off”. The Complainant argues that there is ample evidence of public recognition of the mark, especially in the United Kingdom, associated with the investment activities of the Complainant’s group of companies. The Respondent’s targeted emulation of the mark in connection with a cybercurrency scam demonstrates that the mark has established significance as a source identifier related to financial investments, and this conduct also serves to establish the other elements of a “passing off” case: a misrepresentation likely to mislead the relevant public, resulting in injury.
The Complainant contends that the Respondent can have no rights or legitimate interests in operating an imitative website, without permission, to run a financial scam. Moreover, this conduct is disruptive of the Complainant’s business and serves only to misdirect Internet users for commercial gain. Thus, it represents bad faith in the registration and use of the Domain Name. This conclusion is reinforced by the Respondent’s efforts to obscure its identity in the registration of the Domain Name and on the associated website.
B. RespondentAfter suggesting a suspension of the proceeding to explore settlement, the Respondent did not submit a Response in reply to the Complainant’s substantive arguments.
6. Discussion and FindingsParagraph 4(a) of the Policy provides that in order to divest a respondent of a domain name, a complainant must demonstrate each of the following:
(i) the 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 domain name; and
(iii) the domain name has been registered and is being used in bad faith.
Under paragraph 15(a) of the Rules, “[a] Panel shall decide a complaint on the basis of the statements and documents submitted and in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable”.
A. Identical or Confusingly Similar“To establish unregistered or common law trademark rights for purposes of the UDRP, the complainant must show that its mark has become a distinctive identifier which consumers associate with the complainant’s goods and/or services”. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 1.3. Relevant evidence may include the duration and nature of use of the mark, the extent of advertising and sales using the mark, and the degree of public recognition (id.). The Complainant here does not directly offer retail goods or services to consumers but demonstrates wide and long-term public recognition of its role as part of a group which has invested in major enterprises over a period of some twenty years under the MILLHOUSE CAPITAL brand, including organizations as diverse as the Prodo Agricultural Group, the Chelsea Football Club, and (formerly) Russian Aluminum, Aeroflot Russian Airlines, and oil company Sibneft. The Panel finds on this record that the Complainant has established common law trademark rights in MILLHOUSE CAPITAL for purposes of the Policy.
The first element of a UDRP complaint “functions primarily as a standing requirement” and entails “a straightforward comparison between the complainant’s trademark and the domain name”. See WIPO Overview 3.0, section 1.7. The Domain Name incorporates this mark in its entirety. As usual, the country code Top-Level Domain (“ccTLD”) “.co”, which is not restricted to users related to Colombia, is disregarded as a standard registration requirement. See id. section 1.11.2.
Accordingly, the Panel finds that the Domain Name is confusingly similar to the Complainant’s registered mark for purposes of the Policy, paragraph 4(a)(i) and concludes that the Complainant has established the first element of the Complaint.
B. Rights or Legitimate InterestsParagraph 4(c) of the Policy gives non-exclusive examples of instances in which a respondent may establish rights or legitimate interests in a domain name, 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 domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) that the respondent has been commonly known by the domain name, even if it has acquired no trademark or service mark rights; or
(iii) the respondent is 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.
Because a respondent in a UDRP proceeding is in the best position to assert rights or legitimate interests in a domain name, it is well established that after a complainant makes a prima facie case, the burden of production on this element shifts to the respondent to come forward with relevant evidence of its rights or legitimate interests in the domain name. See WIPO Overview 3.0, section 2.1.
The Complainant has established trademark rights, a lack of permissive use, and employment of the Domain Name for a fraudulent investment website impersonating the Complainant and phishing for personal data. These do not appear to be uses in connection with a “bona fide” commercial offering. Thus, the burden passes to the Respondent.
The Respondent has not come forward to assert rights or legitimate interests. The Companies House registration certificate and FCA registration number posted on the Respondent’s website both appear to be fraudulent, and there are multiple additional indicia of fraud on the website. Accordingly, the Panel finds that the Respondent has not demonstrated rights or legitimate interests and concludes that the Complainant prevails on the second element of the Complaint.
C. Registered and Used in Bad FaithThe Policy, paragraph 4(b), furnishes a non-exhaustive list of circumstances that “shall be evidence of the registration and use of a domain name in bad faith”, including the following cited by the Complainant (in which “you” refers to the registrant of the domain name):
“(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 Respondent was clearly aware of the Complainant and the reputation associated with its MILLHOUSE CAPITAL mark, as the Respondent took pains to present the Respondent’s website as though it originated with the Complainant, presenting false company registration and FCA credentials and describing the Complainant itself on the “About Us” page of the Respondent’s website. The Respondent hid its own identity behind a domain privacy service in registering the Domain Name and did not disclose it on the website, which supports the inference of bad faith. In addition, the Respondent provided the name “millhousecapital” at the time of the registration of the Domain Name, probably to enhance the appearance of the Domain Name being connected to the Complainant.
The Respondent used the Domain Name to misdirect Internet users for commercial gain, with at least the potential effect of disrupting the Complainant’s business and damaging its reputation. Moreover, the use of the Domain Name for what appears to be a fraudulent phishing scheme to collect personal information and investments under false pretenses must certainly be considered bad faith for Policy purposes. See WIPO Overview 3.0, section 3.4 (bad faith use of a domain name for hosting copycat websites, phishing for sensitive or confidential personal information, and other illegitimate purposes).
The Panel finds that the Respondent registered and used the Domain Name in bad faith and that the third element of the Complaint has been established.
7. DecisionFor the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the Domain Name,
W. Scott Blackmer
Sole Panelist
Date: November 9, 2021