WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
BNY ConvergEx Group, LLC, ConvergEx Global Markets Limited v. Margaret De Vera
Case No. D2011-1434
1. The Parties
Complainants are BNY ConvergEx Group, LLC and ConvergEx Global Markets Limited of New York, New York, United States of America (“U.S.”) and Hamilton, Bermuda, respectively, represented by Nixon Peabody, LLP, U.S.
Respondent is Margaret De Vera, G-Trade Services LLC of New York, New York, U.S.
2. The Domain Name and Registrar
The disputed domain name <g-tradeservices.com> (the “Disputed Domain Name”) is registered with Directi Internet Solutions Pvt. Ltd. d/b/a PublicDomainRegistry.com.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 24, 2011. On August 25, 2011, the Center transmitted by email to Directi Internet Solutions Pvt. Ltd. d/b/a PublicDomainRegistry.com a request for registrar verification in connection with the Disputed Domain Name. On August 25, 2011, Directi Internet Solutions Pvt. Ltd. d/b/a PublicDomainRegistry.com transmitted by email to the Center its verification response confirming that Respondent is listed as the registrant and providing the contact details.
The Center verified that 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(a) and 4(a), the Center formally notified Respondent of the Complaint, and the proceedings commenced on August 30, 2011. In accordance with the Rules, paragraph 5(a), the due date for Response was September 19, 2011. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on September 20, 2011.
The Center appointed Maxim Waldbaum as the sole panelist in this matter on October 4, 2011. 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
Complainants BNY ConvergEx Group, LLC (“BNY”) and ConvergEx Global Markets Limited (“CGM”) (together, “Complainants”) own a U.S. registered trade mark, U.S. Registration No. 2,468,955, for G-TRADE, used in connection with security brokerage services, namely, routing, matching, executing, clearing and settling orders in securities” (the “Mark”). Complainants also operate a web site at “www.g-trade.com”. The services offered by Complainants are advertised in association with the full phrase “GTrade Services.”
Respondent is described by Complainants and not contested by Respondent as “Margaret De Vera,” of “G-Trade Services LLC.” Respondent’s address in the WhoIS database lists Complainant BNY’s address.
The Disputed Domain Name was created on February 8, 2011, through a registrar, Directi Internet Solutions, Pvt. Ltd., located in Mumbai, India. Respondent has not responded to the Complaint, and therefore further facts are uncontested. These facts are described in Complainants’ contentions section below.
5. Parties’ Contentions
Complainants request that the Disputed Domain Name be transferred to Complainants. First, Complainants argue that the Disputed Domain Name is virtually identical to and confusingly similar to the G-TRADE mark, and <g-tradeservices.com> offers services virtually identical to those offered by BNY.
Second, Complainants argue Respondent has no rights or legitimate interests in the Disputed Domain Name. Specifically, Complainants allege that Respondent has no use in connection with any bona fide offering of goods and services, is an illegitimate entity, and the site itself has no legitimate content. Complainants also point to the use of BNY’s name and address in the footer of emails sent by firstname.lastname@example.org. Complainants state they have not sponsored or endorsed Respondent’s use.
Third, Complainants allege Respondent has registered and used the Disputed Domain Name in bad faith and intended to create a likelihood of confusion with the G-TRADE mark and Complainants’ services. Complainants allege that <g-tradeservices.com> is a site used for “phishing” (attempting to fraudulently acquire personal or financial information via false identification as a trusted party). In support of this, Complainants cite an email acquired from an Austrian recipient, sent by email@example.com. This email was received from a sender “Carol Thomas” at the Disputed Domain Name, with BNY’s corporate information in the signature block, and asks for personal information while representing to the recipient that the sender is associated with BNY. (Complainants note that BNY’s Chief Technology Officer is named “Thomas Carroll.”) Finally, Complainants comment that Respondent failed to respond to emails from a registrar inquiring into BNY’s complaints, and that this shows bad faith and absence of legitimate purpose.
Respondent did not reply to Complainant’s contentions.
6. Discussion and Findings
Paragraph 4(a) of the Policy directs that Complainants must prove each of the following:
(1) that the Disputed Domain Name registered by Respondent is identical or confusingly similar to a trade mark or service in which Complainants have rights;
(2) that Respondent has no rights or legitimate interests in respect to the Disputed Domain name; and
(3) that the Disputed Domain Name has been registered and is being used in bad faith.
A. Identical or Confusingly Similar
Complainants have proven that the Disputed Domain Name is confusingly similar to their G-TRADE mark. The Disputed Domain Name is identical to the G-TRADE mark, with the immaterial addition of the word “services.” This additional word does not ameliorate the confusing similarity of the Disputed Domain Name.
For these reasons, the Panel concludes that Complainants have proven that the Disputed Domain Name is confusingly similar to the G-TRADE mark.
B. Rights or Legitimate Interests
Complainants have shown that Respondent has no legitimate rights or interests in the Disputed Domain Name. The record shows that Respondent has falsely used BNY’s address in the registration, falsely attributed its emails to BNY despite originating from the Disputed Domain Name, and lacks of any bona fide offering of goods or services. Further, the allegations of fraud have not been rebutted, and as described below, are supported by the evidence. See, e.g., Document Technologies, Inc. v. International Electronic Communications Inc., WIPO Case No. D2000-0270.
Although Complainants technically must show each element, including that there is “no” rights or legitimate interests, the consensus view is that paragraph 4(c) of the Policy shifts the burden to Respondent to come forward with evidence of a right or legitimate interest in the Disputed Domain Name, once Complainants have made a prima facie showing, as they have in this case. See The Prudential Assurance Company Limited v. Domain Place, domainplace, WIPO Case No. D2009-1014.
For these reasons, the Panel concludes that Respondent has no rights or legitimate interests in the Disputed Domain Name.
C. Registered and Used in Bad Faith
For similar reasons, Complainants have shown that Respondent has registered and used the Disputed Domain Name in bad faith. Respondent’s use of the BNY name and address in the WhoIs information and the email disclosed in the record are together and separately evidence of bad faith. Specifically, these two items strongly suggest intent to pose as Complainants, and the email correspondence appears to solicit personal details – both facts strongly suggestive of a phishing scheme. Needless to say, such evidence weighs heavily against Respondent. See Starwood Hotels & Resorts Worldwide Inc., The Sheraton LLC, Sheraton International Inc. v. infosheraton, WIPO Case No. D2010-2195 (phishing “cannot constitute a legitimate use of the disputed domain name.”).
Further, the fact that Respondent used Complainants’ address in the WhoIs information and emails, as well as a variation of a BNY employee’s name as the signatory of an email, indicates strongly that it was aware of Complainants’ rights when it registered and used the Disputed Domain Name. See, e.g., Jupiters Limited v. Aaron Hall, WIPO Case No. D2000-0574 (the panel found it “inevitable that [r]espondent registered the domain names in full knowledge of [c]omplainant’s rights and interests.”)
In short, this Panel finds ample evidence that Respondent has shown bad faith as required under the Rules, Paragraph 3(b)(ix)(3), and registered and used the Disputed Domain Name in bad faith.
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 Name, <g-tradeservices.com>, be transferred to Complainants.
Dated: October 20, 2011