The Complainant is Soros Fund Management LLC of New York, United States of America, represented by Akin, Gump, Strauss, Hauer & Feld LLP, United States of America.
The Respondent is Piotr Tutro of Warsaw, Poland.
The disputed domain name, <sorosfund.biz> (the “Domain Name”), is registered with Directi Internet Solutions Pvt. Ltd. d/b/a PublicDomainRegistry.com (the “Registrar”).
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 20, 2008. On November 21, 2008, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On November 22, 2008, 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 proceeding was suspended from November 27, 2008 until December 22, 2008 upon the Complainant's request, the expectation being that the dispute would be resolved amicably. Having failed to settle the case, the Complainant requested that the proceeding be re-instituted, and the proceeding was re-instituted on December 22, 2008.
In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amendment to the Complaint on December 19, 2008. 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”), 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 December 23, 2008. In accordance with the Rules, paragraph 5(a), the due date for Response was January 12, 2009. The Respondent did not submit a response. Accordingly, the Center notified the Respondent's default on January 13, 2009.
The Center appointed Tony Willoughby as the sole panelist in this matter on January 22, 2009. 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.
Paragraph 11(a) of the Rules provides that “[u]nless otherwise agreed by the Parties, or specified otherwise in the Registration Agreement, the language of the administrative proceeding shall be the language of the Registration Agreement, subject to the authority of the Panel to determine otherwise, having regard to the circumstances of the administrative proceeding.”
In response to the Center's request of the Registrar as to the language of the Registration Agreement, the Registrar responded as follows: “The English language was used to inform the Registrant of both the Domain Registration Agreement as well as the Customer Master Agreement during the domain name Registration and Customer Signup process.” That response did not answer the question, but it does serve to establish that the Respondent can communicate in English and this has been confirmed by the Respondent's note to the Complainant's representative, which is referred to below and which is in English.
The Panel determines that English is the appropriate language of the administrative proceeding.
The Complaint is expressed to be a Complaint under both the Policy and the Restrictions Dispute Resolution Policy for ‘.biz' (“RDRP”). The Panel will decide this dispute solely by reference to the Policy. As will be seen, the nature of the Complaint is such that the result would have been the same under the RDRP.
The Complainant, a company organized and existing under the laws of the State of Delaware, United States of America (or “U.S.”), is a very well-known private investment firm. Its founder, George Soros, is a household name, his fame extending beyond the financial services industry.
The Complainant is the registered proprietor of United States registered service mark No. 3,033,922 in class 36 for investment advisory services and management of investment funds. That mark SOROS FUND MANAGEMENT was registered on December 27, 2005.
The Domain Name was registered on June 11, 2008.
As at October 9, 2008, the Domain Name was connected to a website devoted to a Korean business identified as SorosFund Capital Inc and, inter alia, naming George Soros as the Chief Executive Officer. The business is said to invest in “early-stage companies” and offers to provide investment advice. It also features a “shop” section of its site, which is in the Korean language and features images of cars, apparently for sale.
On October 13, 2008, the Complainant's representative sent a detailed letter to the Respondent demanding inter alia transfer of the Domain Name. The letter alleges fraud on the part of the Respondent. It is alleged that the site contains fraudulent statements (e.g., the inclusion of George Soros' portrait on the site) and non-existent contact details and that the Respondent “[is] soliciting investors to invest money in certain funds with extraordinary return prospects”. The prime concern is that people will believe the Complainant and its founder to be in some way associated with SorosFund Capital Inc. There was no immediate reply.
Following filing of the Complaint, the Complainant's representative received an unsigned letter purporting to come from the Respondent dated November 24, 2008 in which he disclaims all knowledge of the Domain Name and the website to which it was connected, saying that his life's work has been in scrap metal trading. He discloses that he has two Korean business partners on the board of his company and says that he will try to explain the matter to them. He expresses support for everything that George Soros is doing, he regards the infringement of intellectual property rights to be unacceptable and says that he will co-operate as necessary to resolve the problem.
The Complainant contends that the Domain Name is confusingly similar to its U.S. service mark registration referred to above.
The Complainant contends that the website to which the Domain Name is or was connected is a flagrantly fraudulent enterprise and cannot on any basis give rise to rights or legitimate interests in respect of the Domain Name.
The Complainant contends that the Domain Name was registered and is being used in bad faith, its purpose being to commit investment fraud.
Save for the above-mentioned unsigned letter purporting to come from the Respondent and dated November 24, 2008, the Respondent has not replied to the Complainant's contentions.
According to paragraph 4(a) of the Policy, for this Complaint to succeed in relation to the Domain Name, the Complainant must prove each of the following, namely that:
(i) The Domain Name is 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 Domain Name; and
(iii) The Domain Name has been registered and is being used in bad faith.
The Domain Name comprises the name “sorosfund” and the generic domain suffix. It is well-established that the suffix may be ignored when assessing identity and confusing similarity for the purposes of paragraph 4(a)(i) of the Policy.
The service mark in which the Complainant claims rights is the United States registered mark referred to in Section 4 above, which consists of the words SOROS FUND MANAGEMENT.
The Panel finds that the Domain Name is confusingly similar to the Complainant's United States registered service mark.
The evidence put forward by the Complainant overwhelmingly supports the Complainant's contention that the website to which the Domain Name was connected was calculated to lead people to believe erroneously that SorosFund Capital Inc, the business, promoted on the website, is closely associated with the Complainant and its founder George Soros.
The Complainant asserts that neither the Complainant nor Mr. Soros has any association with either the Respondent or the business promoted on the website to which the Domain Name was connected.
The Complainant has made out a powerful case against the Respondent, a case calling for an answer. The only answer has been the letter purporting to come from the Respondent and which is described in Section 4 above. It was no doubt the reason why the Complainant sought the suspension of this administrative proceeding referred to in Section 3 above.
If that letter is accepted as the Respondent's response, then the Complaint has to succeed because everything about the registration of the Domain Name is acknowledged to be fraudulent. If that letter is to be ignored for any reason (e.g., doubts about its provenance), then the result is precisely the same, because the Respondent has come up with no answer to the Complainant's strong prima facie case. Moreover, the Panel can conceive of little basis upon which anyone other than a licensee of either the Complainant or its founder could justifiably claim rights or legitimate interests in respect of a domain name in the “.biz” top level domain featuring the name, “sorosfund”.
The Panel finds that the Respondent has no rights or legitimate interests in respect of the Domain Name.
The Panel is satisfied that the Respondent (or the registrar-confirmed identity) registered the Domain Name with the express intention of deceiving Internet users into believing that the website to which the Domain Name was connected was a website of or in some way associated with the Complainant and its founder and that the overall purpose was for commercial gain.
The Panel finds that the Domain Name was registered and is being used in bad faith within the meaning of paragraph 4(b)(iv) of the Policy.
For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name <sorosfund.biz> be transferred to the Complainant.
Dated: January 24, 2009