WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Grandcapital Ltd. v. Domain Admin (Whois Privacy Corp.)
Case No. D2018-2084
1. The Parties
Complainant is Grandcapital Ltd. of Saint-Petersburg, Russian Federation, represented by Internet & Law, Russian Federation.
Respondent is Domain Admin (Whois Privacy Corp.) of Nassau, New Providence, Bahamas.
2. The Domain Name and Registrar
The disputed domain name <grand-capital-obman.com> is registered with Internet Domain Service BS Corp (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 11, 2018. On September 12, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On September 14, 2018, the Registrar 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 and 4, the Center formally notified Respondent of the Complaint, and the proceedings commenced on September 26, 2018. In accordance with the Rules, paragraph 5, the due date for Response was October 16, 2018. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on October 17, 2018.
The Center appointed Georges Nahitchevansky as the sole panelist in this matter on October 25, 2018. 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
Complainant, Grandcapital Ltd., is a provider of online financial trading services. Complainant is based in the Russian Federation and while it has offices in other countries, its primary business operations are in the Russian Federation. Complainant has used the name and mark GRAND CAPITAL for its online trading services since 2006. Complainant owns a trademark registration for the mark GC GRAND CAPITAL LTD and design in the Russian Federation (Registration No. 441775) which issued to registration on March 3, 2010. Complainant also owns and uses the domain name <grandcapital.net> for a website promoting and providing information about its services.
Respondent’s identity is unknown, as Respondent has used a privacy service for the registration of the disputed domain name.1 Respondent either consists of, or works with, a group of individuals who operate several websites that are critical of various financial companies, a number of which are engaged in FOREX trading (foreign exchange or currency trading). Respondent registered the disputed domain name on March 27, 2017 and has thereafter used the disputed domain name in connection with a website in Russian that concerns Complainant and alleged instances of fraud and deceit committed by Complainant. Respondent’s website claims to be an aggregation of reviews about Complainant collected from FOREX forums and websites.
At some point in early to mid-2018, Complainant appears to have objected to Respondent’s website and use of the disputed domain name. The Parties thereafter had some communications regarding a possible arrangement to resolve the matter, but no agreement was reached.
5. Parties’ Contentions
A. Complainant
Complainant contends that it has used the name Grand Capital since 2006 and that it is the owner of all rights in the GRAND CAPITAL mark by virtue of its 2010 trademark registration for GC GRAND CAPITAL LTD and Design in Russia. Complainant further contends that it is a well-known provider of online financial trading services and that it has won numerous awards for its services.
Complainant asserts that the disputed domain name is confusingly similar to Complainant’s GRAND CAPITAL mark as it fully incorporates the GRAND CAPITAL mark. Complainant argues that the addition of a Latin character transliteration of the Russian word “oбмaн,“ which means “deceit” or “fraud,” to the GRAND CAPITAL name and mark does not distinguish the disputed domain name or eliminate the confusing similarity.
Complainant maintains that Respondent has no rights or legitimate interests in the disputed domain name as Respondent (i) does not own rights in the GRAND CAPITAL mark, (ii) has not been granted any authorization or license by Complainant to use the GRAND CAPITAL mark, (iii) is not commonly known by the GRAND CAPITAL mark, and (iv) has used the disputed domain name for a website that contains vast criticism or Complainant. Complainant also argues that the disputed domain name does not simply consist of common words but is aimed to create a false impression of affiliation with Complainant and to take advantage of Complainant’s rights in the GRAND CAPITAL mark.
Lastly, Complainant argues that the disputed domain has been registered and is being used in bad faith as Respondent (i) registered the disputed domain to prevent Complainant from reflecting its mark in a corresponding domain name, (ii) has registered and used the disputed domain with a website that is clearly meant to harm Complainant’s reputation, and (iii) is not making a legitimate noncommercial or fair use of the disputed domain name. In that regard, Complainant asserts that Respondent has engaged in a pattern of cybersquatting by registering and using domain names based on the names of third parties for similar schemes and in order to extort money. Complainant further asserts that Complainant has a whole group of assistants to help in Respondent’s scheme for commercial gain and that Respondent offered to stop cybersquatting on the GRAND CAPITAL name and mark in return for a payment of more than USD 2500.
B. Respondent
Respondent did not reply to Complainant’s contentions. The Panel notes, though, that Respondent has posted commentary and documents regarding this dispute on its website at the disputed domain name.
6. Discussion and Findings
Under paragraph 4(a) of the Policy, to succeed Complainant must satisfy the Panel that:
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which Complainant has rights;
(ii) Respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) the disputed domain name was registered and is being used in bad faith.
Here, although Respondent has failed to respond to the Complaint, the default does not automatically result in a decision in favor of Complainant, nor is it an admission that Complainant’s claims are true. The burden remains with Complainant to establish the three elements of paragraph 4(a) of the Policy by a preponderance of the evidence. A panel, however, may draw appropriate inferences from a respondent’s default in light of the particular facts and circumstances of the case, such as regarding factual allegations that are not inherently implausible as being true. See section 4.3 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”); see also The Knot, Inc. v. In Knot We Trust LTD, WIPO Case No. D2006-0340.
A. Identical or Confusingly Similar
Ownership of a trademark registration is generally sufficient evidence that a complainant has the requisite rights in a mark for purposes of paragraph 4(a)(i) of the Policy. WIPO Overview 3.0 at section 1.2.1. Complainant has provided evidence that it owns a trademark registration that consists of the GRAND CAPITAL name in the Russian Federation and that Respondent made use of the GRAND CAPITAL name and mark for its financial services prior to the registration of the disputed domain name by Respondent.
With Complainant’s rights in the GRAND CAPITAL mark established, the remaining question under the first element of the Policy is whether the disputed domain name (typically disregarding the generic Top-Level Domain (“gTLD”) such as “.com”) is identical or confusingly similar with Complainant’s mark. See B & H Foto & Electronics Corp. v. Domains by Proxy, Inc. / Joseph Gross, WIPO Case No. D2010-0842. The threshold for satisfying this first element is low and generally panels have found that fully incorporating the identical mark in a disputed domain name is sufficient to meet the threshold.
In the instant proceeding, the disputed domain name is confusingly similar to Complainant’s GRAND CAPITAL mark as the disputed domain name consists of the GRAND CAPITAL mark in its entirety at the head of the disputed domain name. The addition of the Latin transliteration of the Russian word “oбмaн,” which translates to “fraud” or “deceit,” does not distinguish the disputed domain name for purposes of the first element as the dominant component of the disputed domain name is “grand capital”. The Panel therefore finds that Complainant has satisfied the requirements of paragraph 4(a)(i) of the Policy in establishing its rights in Complainant’s GRAND CAPITAL mark and in showing that the disputed domain name is identical or confusingly similar to that trademark.
B. Rights or Legitimate Interests
Under paragraph 4(a)(ii) of the Policy, the complainant must make at least a prima facie showing that the respondent possesses no rights or legitimate interests in a disputed domain name. Malayan Banking Berhad v. Beauty, Success & Truth International, WIPO Case No. D2008-1393. Once the complainant makes such a prima facie showing, the burden of production shifts to the respondent, though the burden of proof always remains on the complainant.
Complainant argues that Respondent’s use of the disputed domain name that is based on the GRAND CAPITAL mark is meant to mislead consumers to Respondent’s website for the purpose of harming Complainant’s reputation. However, a review of the evidence provided, and of Respondent’s Russian language website at the disputed domain name, shows that the website is noncommercial in nature and consists of a combination of critical comments regarding Complainant’s alleged practices and financial services with an aggregation of accounts from disgruntled customers of Complainant that allege that they have been deceived or defrauded by Complainant. A prominent title near the top of the home page of the website at the disputed domain name states “Гранд Капитал (Grand Capital) отзывы - МОШЕННИКИ !!! SCAM !!!”, which in English translates to “Grand Capital (Grand Capital) reviews - FRAUDS !!! SCAM !!!”. The entire website thereafter consists of critical commentary by Respondent about Complainant and its services interspersed with various accounts, documents and videos from dissatisfied customers who claim to have been deceived by Complainant.
While Complainant argues that the purpose of the website is to harm Complainant’s reputation, Complainant has provided no evidence, and does not argue, that what is posted on Respondent’s website is fictitious or fabricated by Respondent as opposed to being an aggregation of actual stories collected by Respondent, as Respondent claims on the home page of its website, that appeared on other websites or FOREX forums. Moreover, Complainant does not argue that the website is commercial in nature. Indeed, the Panel notes that the website at the disputed domain name contains no advertising, sells no products and services, and does not appear to solicit funds from web users. Thus, for all intents and purposes, the website at the disputed domain name functions as a noncommercial criticism website.
While Complainant does not address the noncommercial nature of the website at the disputed domain name in its Complaint, the gist of Complainant’s argument is that Respondent cannot be acting in good faith because the disputed domain name contains Complainant’s entire GRAND CAPITAL name and mark and thus suggests an affiliation with Complainant. The disputed domain name, though, is not identical to Complainant’s mark, as it contains the additional term “obman,” which is the transliteration of the Russian word “oбмaн,” that means “deceit” or “fraud.” Although the disputed domain name is entirely in Latin characters, the website at the disputed domain name is for the most part entirely in Russian and directed to Russian speakers. So while there could be some confusion when a non-Russian speaker sees the disputed domain name, and likely would not know what “obman” might mean, that confusion is likely minimal when a Russian speaker sees the disputed domain name or when a web user accesses the website at the disputed domain name that is entirely in Russian and can readily see that the website is critical of Complainant and concerns alleged instances of fraud and deceit involving Complainant.
This is not a case where a party has registered a domain name that merely consists of another party’s trademark in its entirety with a gTLD extension, but a situation where the disputed domain name consists of a mark with a communicative term that while negative or critical in nature expressly relates to the entire purpose of the website to criticize Complainant’s practices and to provide actual stories from disgruntled customers who claim to have been deceived or defrauded by Complainant (stories that appear to have been aggregated by Respondent from FOREX forums and other websites). Put another way, the disputed domain name has a communicative component that when seen with the content of the associated website reflects a bona fide use for legitimate criticism of Complainant, and is not being used to impermissibly create confusion, such as by impersonating or suggesting an affiliation with Complainant in order to mislead consumers. WIPO Overview 3.0 at sections 2.6.2 and 2.6.3; see also, Delaire Country Club, Inc. v. Perfect Privacy, LLC / Manfred Brecker, WIPO Case No. D2017-1547.
That being said, there remains a question as to whether Respondent’s actions are essentially a sham or pretext for obtaining payments from brand owners. Complainant asserts in its Complaint at various points that Respondent has a pattern of registering domain names based on the marks of third parties and then using such with similar types of websites in order to extort monetary payments from the brand owners in question. Complainant has provided a list of domain names and a handful of printouts of website pages associated with some of those domain names that show that Respondent operates websites that are critical of other financial entities and their practices.2 Notably, though, Complainant has provided no actual evidence to support its claim that Respondent has actually extorted, obtained, or sought to obtain money from any of these other parties through the posting of websites that are critical of, or which critically review, the practices or services of such other parties. Tellingly, Respondent has submitted no evidence that Respondent has a history of extorting funds from brand owners generally or has even attempted to do so, as Complainant claims. To be sure, conclusory allegations in a Complaint unsupported by any evidence are entitled to little to no weight. WIPO Overview 3.0 at sections 3.1, 4.2 and 4.3.
Complainant’s entire claim of extortion appears to rest on some limited (and potentially incomplete) communications between Complainant and Respondent in mid-2018 regarding the website at the disputed domain name. Complainant asserts in its Complaint that Respondent offered “to stop cybersquatting in respect of the disputed domain name for more than 2500 $.” In support of that contention, Complainant has provided a jumble of files that contain some correspondence between the parties (all in Russian). A review of that limited correspondence, however, does not confirm Complainant’s claim that Respondent made a unilateral demand per se for payment to cease its activities, but shows that the Parties engaged in some back and forth communications to try and come to an agreement to resolve their dispute (a fact that Complainant does not disclose in its Complaint). It appears that Complainant sent a demand letter to Respondent through the Registrar of the disputed domain name (another fact not disclosed by Complainant in its Complaint) and the Parties then had some communications of a possible cooperative arrangement whereby Respondent would provide some services to Complainant in helping it manage and address the negative commentary it had received from disgruntled customers in return for a payment to Respondent for managing such a service. Indeed, correspondence between the Parties also discloses that the Parties discussed variants of an arrangement such as allowing Complainant to make postings on Respondent’s website in order to address negative comments received and to provide Complainant’s rebuttal to such.
While the settlement discussions between the Parties regarding services that could be provided by Respondent to Complainant for a possible fee could be seen as an attempt to profit from the disputed domain name, and might provide Complainant with a claim that Respondent is engaged in a for profit scheme, it is equally plausible that Respondent created a noncommercial website to comment on Complainant and its services and then when approached by Complainant with a threat of legal action and the possibility of settlement sought to negotiate a resolution of the matter with Complainant in good faith. What is missing in Complainant’s submissions is evidence showing that Respondent’s activities where pretextual from the start and designed to extort money – as opposed to being part of a bona fide attempt by Respondent to expose alleged deceitful and questionable practices by Complainant in FOREX trading. As already noted, there is no evidence in the record of any past history of Respondent pursuing such a for-profit scheme as to any other brand owners or of Respondent having been found to have acted in bad faith in the past.3 The fact that Respondent has remained anonymous and registered other domain names and used such with other websites that are likewise noncommercial in nature, and which provide criticism and reviews of other financial companies and their practices, does not per se suggest extortion. This is particularly so, as most of the companies that are the focus of Respondent’s messaging and criticism are companies that are also involved in the FOREX market (a decentralized global market where all the world's currencies trade).
In sum, given the noncommercial and critical nature of Respondent’s website at the disputed domain name and the lack of evidence that Respondent has a pattern of creating such websites in order to extort money from brand owners, the Panel finds that on the record submitted Complainant has failed to sustain its burden of establishing by a preponderance of the evidence that Respondent has no rights or legitimate interest in the disputed domain name.
As an aside, the Panel notes that while this case is unusual insofar as Respondent has remained anonymous, Complainant, as previously noted, has had a number of communications with Respondent. It is thus possible that Complainant may even know something regarding the identity of Respondent or have more information on Respondent and its activities than was disclosed in the Complaint. The gaps in the correspondence and evidence presented suggests that there may be other considerations or matters in this proceeding that have not been disclosed to the Panel. To be sure, if there was evidence showing that Respondent is, in fact, a competitor of Complainant, then while the website at the disputed domain name might be noncommercial in nature, the purpose would not be noncommercial and clearly would be aimed at harming the reputation of a competitor for profit. However, in this case Complainant has provided very little evidence and has not shown that Respondent is either a competitor of Complainant or engaged in a for profit scheme that involves the registration and use of domain names with websites that on their surface purport to be noncommercial criticism websites. Panelists have a limited ability to conduct factual research in a matter (see WIPO Overview 3.0 at section 4.8) and thus it is incumbent on Complainants or Respondents to prove their contentions with credible evidence. A failure to do so can be fatal, as is the case in this proceeding.
C. Registered and Used in Bad Faith
In view of Complainant’s failure to satisfy the second element, there is no need for the Panel to address the third element. The Panel notes, however, that Complainant would likewise be unable to satisfy the third element based on the record submitted to the Panel in this case.
7. Decision
For the foregoing reasons, the Complaint is denied.
Georges Nahitchevansky
Sole Panelist
Date: November 9, 2018
1 While Respondent’s identity is not available, the Panel hereinafter uses the term “Respondent” to refer to the undisclosed operator(s) of the website at the disputed domain name and with which Complainant has had communications in mid-2018.
2 The Panel has reviewed the websites at the domain names cited by Complainant and has confirmed that a number of the websites posted are likewise critical noncommercial websites about the financial entities being addressed (see, e.g., <24-option-scam.com>, <armaxtrade.com> and <freedom-finance.pro>).
3 The fact that Respondent has remained anonymous in this proceeding could provide an inference that Respondent is acting in bad faith. However, the situation in the instant case is somewhat unusual. The identity of the individuals involved with Respondent’s website at the disputed domain name appear to be disclosed on Respondent’s website, Complainant and Respondent were readily able to contact and communicate with one another about the matter without much difficulty, and Complainant apparently had sufficient details to find other domain names and websites operated and held by Respondent. Given these facts, and the fact that Respondent appears to operate multiple websites that are critical of entities engaged in FOREX trading, it is reasonable to infer that Respondent and its activities might be known in at least the FOREX trading industry.