WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
RGM Trading, LLC v. rgm-trading.com, RGM-Trading / Ronald Perry, rgmthk.com, RGM-Trading / Bushan Shimpi
Case No. D2012-1049
1. The Parties
The Complainant is RGM Trading, LLC of Wilmington, Delaware, United States of America, represented by Hoguet Newman, Regal & Kenney, LLP, United States of America.
The Respondents are rgm-trading.com, RGM-Trading of Kowloon, Hong Kong, China / Ronald Perry of Euless, Texas, United States of America, rgmthk.com, RGM-Trading of Wanchai, Hong Kong, China / Bushan Shimpi of Thane, Maharashtra, India.
2. The Domain Names and Registrars
The disputed domain name <rgm-trading.com> (the “First Domain Name”) is registered with Name.com LLC. The disputed domain name <rgmthk.com> (the “Second Domain Name”) is registered with UK2 Group Ltd. Together the disputed domain names are referred to hereinafter as the “Domain Names”. Together Name.com LLC and UK2 Group Ltd are referred to hereinafter as the “Registrars”.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on May 17, 2012. On May 17, 2012, the Complainant filed an amended Complaint with the Center. On May 18, 2012, the Center transmitted by email to UK2 Group Ltd and Name.com LLC a request for registrar verification in connection with the Domain Names. On May 18, 2012, the Registrars transmitted by email to the Center their verification responses disclosing registrant and contact information for the Domain Names which differed from the named Respondents and contact information in the Complaint. The Center sent an email communication to the Complainant on May 25, 2012 providing the registrant and contact information indicated by the Registrars. In response to the notification by the Center that the Complaint was administratively deficient, the Complainant filed an amended Complaint against the Respondents on May 25, 2012.
The Center verified that the Complaint together with the two amended Complaints 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 the Respondents of the Complaint, and the proceedings commenced on May 31, 2012. In accordance with the Rules, paragraph 5(a), the due date for Response was June 20, 2012. The Respondents did not submit any response. Accordingly, the Center notified the Respondents’ default on June 21, 2012.
The Center appointed Tony Willoughby as the sole panelist in this matter on June 26, 2012. 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.
The Complaint names four different persons as Respondents, each identified as the registrant of one or other of the Domain Names; yet paragraph 3(c) of the Rules provides that “the complaint may relate to more than one domain name, provided that the domain names are registered by the same domain-name holder.” The Complainant seeks to overcome this apparent obstacle either on the basis that the four names identified are aliases for one entity (i.e. it is one domain-name holder who has registered both the Domain Names, albeit under different names) or, if the named registrants are indeed different people, they and/or the websites to which the Domain Names resolve (or have resolved) are (or were) under the common control of a single entity. In relation to this latter point the Complainant refers to paragraph 10(e) of the Rules (“A Panel shall decide a request by a party to consolidate multiple domain name disputes in accordance with the Policy and the Rules”). Here, paragraph 4.16 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions Second Edition (“WIPO Overview 2.0”) is of help. Generally, the approach of UDRP panels has been to permit consolidation of such disputes where “the domain names or the websites to which they resolve are subject to common control, and the consolidation would be fair and equitable to all parties.”
The Complainant has produced screenshots from the websites to which the Domain Names have resolved. In both form and content they are substantially identical. Both websites featured a claim that the company in question was founded by one Richard Gerrard Montgomery. The Panel is satisfied that those associated with the Domain Names are one and the same. The Panel finds that the Complaint is appropriately formulated and will proceed to a decision in respect of both the Domain Names.
Prior to completing this decision, the Panel issued a procedural order on July 18, 2012, seeking verification from the Complainant that the owner of the trade mark on which the Complaint is based is indeed, as the Complainant asserts, its parent company. The verification sought was provided to the Center on July 20, 2012. The Respondents were invited to make submissions in relation to the procedural order, but did not avail themselves of the opportunity.
4. Factual Background
The Complainant is a company, which was incorporated in Delaware, United States of America on January 24, 2005 and is engaged in the field of financial services.
The Complainant is a licensee of United States Trade Mark registration no. 3257863 filed December 12, 2005, registered July 3, 2007 RGM (word) in class 36 for financial services insofar as it relates to financial services. That registration is held in the name of RGM Advisors, LLC Delaware Limited of Austin, Texas, United States of America, the Complainant’s parent company.
The Complainant’s parent company is claimed to be the proprietor of the domain names, <rgmtrading.com> and <rgmtrading.net>. The Panel has conducted WhoIs searches in respect of those domain names, but both are registered in the name of a proxy service.
The Complainant first became aware of the First Domain Name and the website to which it was then connected when approached by a member of the public who had claimed to have been deceived by the content of the website to the extent of having handed over USD 5,000 to the operator of that website believing it to be the Complainant.
The First Domain Name was registered on November 16, 2011 and connected to a website purporting to be that of a financial services advisory company named RGM-Trading of Kowloon, Hong Kong. That website was taken down following letters dated April 4, 2012 from the Complainant’s representative to all those associated with the First Domain Name and the website accusing the operators of the website of fraudulent impersonation.
The Second Domain Name was registered on April 12, 2012 and connected to a website purporting to be that of a financial services advisory company named RGMT of Wanchai, Hong Kong. The Complainant’s representative wrote on April 26, 2012 to all those associated with the Second Domain Name and the website in similar terms to those of the letter of April 4, 2012. That website has now been taken down.
Both websites featured a claim that the company in question was founded by one Richard Gerrard Montgomery.
5. Parties’ Contentions
The Complainant contends that the Domain Names are identical or confusingly similar to the RGM trade mark identified in section 4 above, in respect of which it has a licence.
The Complainant contends that the financial services trading operation conducted by the Respondents under the RGM-Trading and RGMT names through the websites to which the Domain Names were connected is an outright fraud, the Respondents seeking to extort money from customers by impersonating the Complainant. Therefore, the Respondents have neither rights nor legitimate interests in respect of the Domain Names.
On the same basis the Complainant contends that the Domain Names were registered and used in bad faith and seeks transfer of the Domain Names.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
According to paragraph 4(a) of the Policy, for this Complaint to succeed in relation to the Domain Names, the Complainant must prove each of the following, namely that:
(i) The Domain Names are 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 Names; and
(iii) The Domain Names have been registered and are being used in bad faith.
B. Identical or Confusingly Similar
The Domain Names each contain the trade mark RGM.
In the case of the First Domain Name the trade mark is followed by a hyphen and the word “trading” and then the generic “.com” domain suffix. In the case of the Second Domain Name the trade mark is followed by “thk” and the generic “.com” domain suffix.
While the trade mark is more readily recognizable in the First Domain Name, the Panel is satisfied that both the Domain Names are confusingly similar to the RGM trade mark.
However, is the RGM trade mark a trade mark in which the Complainant has rights? Ordinarily, one would expect a licensee to produce evidence of the licence and some indication from the licensor that the licensor supports the complaint and is happy for the domain name in issue to be transferred to the licensee.
The Complainant did none of those things. However, in response to a procedural order issued by the Panel, the Complainant produced a letter from its parent company confirming that the Complainant is a subsidiary and a licensee of the RGM trade mark.
The Panel finds that the Domain Names are identical or confusingly similar to a trade mark in which the Complainant has rights.
C. Rights or Legitimate Interests
As indicated above, the evidence before the Panel strongly suggests to the Panel that the Respondents have set out to use the Domain Names to impersonate the Complainant and to extort money by deceit from visitors to the Respondents’ websites. The Complainant has produced evidence to demonstrate that one member of the public handed over USD 5,000 to the Respondents in the belief that the Respondents’ business as described on the website connected to the First Domain Name was the business of the Complainant.
At the very least, the Complainant has made out a strong prima facie case under this head, a case calling for an answer from the Respondent.
In the absence of any Response, the Panel finds that the Respondent has no rights or legitimate interests in respect of the Domain Names.
D. Registered and Used in Bad Faith
By the same reasoning, the Panel finds on the preponderance of the unchallenged evidence before him that the Respondents registered the Domain Names with the intention of fraudulently impersonating the Complainant.
Accordingly, the Panel finds that the Respondent registered and used the Domain Names in bad faith within the meaning of paragraphs 4(a)(iii) and 4(b)(iv) of the Policy.
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, this Complaint succeeds and the Panel orders that the Domain Names, <rgm-trading.com> and <rgmthk.com>, be transferred to the Complainant.
Dated: July 20, 2012