WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Elliott Management Corporation v. John Smith / John Smith, Capital Rise Investments LLC
Case No. D2018-0827
1. The Parties
The Complainant is Elliott Management Corporation of New York, New York, United States of America (“United States”) represented by ZwillGen, PLLC, United States.
The Respondent is John Smith of Dublin, Ireland / John Smith, Capital Rise Investments LLC of Miami Lakes, Florida, United States, represented by Law Offices of Jordan I. Wagner, P.A., United States.
2. The Domain Names and Registrars
The disputed domain name <elliottmqmt.com> is registered with the Registrar, Google Inc.
The disputed domain name <elllottmqmt.com> is registered with the Registrar, Ascio Technologies Inc.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 12, 2018. On April 13, 2018, the Center transmitted by email to the Registrars a request for registrar verification in connection with the disputed domain names. On April 14 and April 24, 2018, the Registrars each transmitted by email to the Center their verification responses confirming that the Respondent is listed as the registrant and providing the Respondent’s contact details. The Complainant filed an amended Complaint on May 9, 2018.
The Center verified that the Complaint together with the amended 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 proceeding commenced on May 18, 2018. In accordance with the Rules, paragraph 5, the due date for Response was June 7, 2018. The Center received email communications from the Respondent on May 24, 2018 and on May 28, 2018. On June 8, 2018, the Respondent filed its Response with the Center.
The Center appointed Sebastian M.W. Hughes as the sole panelist in this matter on June 21, 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
The Complainant is a company incorporated in the United States and is the owner of United States registration number 3250277 for the trade mark ELLIOTT (the “Trade Mark”), with a registration date of June 12, 2007.
The Complainant is also the owner of the domain name <elliottmgmt.com>, registered and used as the Complainant’s primary Internet presence since May 2, 2000 (the “Complainant’s Domain Name”).
The Complainant has operated for many years under the Trade mark as a global investment management firm, with offices located in the United States, the United Kingdom of Great Britain and Northern Ireland, the Hong Kong SAR of China, and Japan.
The identity of the Respondent appears to be “John Smith” and “Capital Rise Investments LLC”.
C. The Disputed Domain Names
The disputed domain names were registered on October 31, 2017.
D. Passive use of the Disputed Domain Names
The disputed domain names have not been used.
5. Parties’ Contentions
The Complainant contends that the disputed domain names are identical or confusingly similar to the Trade Mark, the Respondent has no rights or legitimate interests in respect of the disputed domain names and the disputed domain names have been registered and are being used in bad faith.
The Respondent’s representative submitted, in his email to the Center dated May 28, 2018, as follows:
“My client has advised me he has no interest in the disputed domain names. Not sure how he was linked to these domains.
Please advise if a formal response needs to be filed.”
The Respondent submitted in the Response dated June 8, 2018, as follows:
“Respondent hereby claims to have no interest whatsoever in the domain names. Respondent hereby has no affiliation with these domain names. Respondent hereby has no ability to turn over the domain names because Respondent has no control over them.”
6. Discussion and Findings
6.1 Late Filing of the Response
Paragraph 14(a) of the Rules provides that, in the event of a late response, absent exceptional circumstances, panels shall proceed to a decision based solely on the complaint.
Paragraph 14(a) of the Rules is counterbalanced by paragraph 10(b) of the Rules, which requires panels to ensure that parties are treated with equality and that each party is given a fair opportunity to present its case.
The Response was filed one day late. Furthermore, although the Respondent has not filed any submissions in support of the late filing of the Response, the content of the Response is consistent with the content of the email from the Respondent’s representative dated May 28, 2018.
In all the circumstances, and also taking into account the fact the Response was filed before the appointment of the Panel, and the one day extension has not delayed the resolution of this proceeding – and also bearing in mind the Panel’s obligations under paragraph 10(b) of the Rules – the Panel has decided that it will accept the late filing of the Response.
6.2 Substantive Elements of the Policy
The Complainant must prove each of the three elements in paragraph 4(a) of the Policy in order to prevail.
A. Identical or Confusingly Similar
The Panel finds that the Complainant has rights in the Trade Mark acquired through use and registration.
The disputed domain name <elliottmqmt.com> incorporates the entirety of the Trade Mark (see WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 1.7) together with the term “mqmt”, a misspelling of “mgmt”, being a common abbreviation for the word “management”, and also being part of the Complainant’s Domain Name.
Where a relevant trade mark is recognisable within a disputed domain name, the addition of other terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) does not prevent a finding of confusing similarity under the first element (see WIPO Overview 3.0, section 1.8).
The disputed domain name <elllottmqmt.com> contains a common, obvious, or intentional misspelling of the Trade Mark (see WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 1.9) together with the term “mqmt”.
The Panel therefore finds that the disputed domain names are confusingly similar to the Trade Mark.
B. Rights or Legitimate Interests
The Respondent has asserted in the Response that it has no interest in the disputed domain names.
The Panel therefore finds that the Respondent has no rights or legitimate interests in the disputed domain names.
C. Registered and Used in Bad Faith
It appears according to the WhoIs and the concerned registrars that the Respondent is John Smith, Capital Rise Investments LLC.
The Respondent Capital Rise Investments LLC has confirmed that he has no interest in the disputed domain names, and the Respondent’s representative has advised the Center that the Respondent is “not sure how he was linked to these domain names”.
Given the notoriety of the Complainant and of its Trade Mark; that the disputed domain names were registered on the same day; the passive use of the disputed domain names; and, in particular, the fact the Respondent claims that he was not sure how he was linked to these domain names, the Panel has no hesitation in concluding the requisite element of bad faith registration and use have been made out. The Panel considers it is inconceivable the Respondent was not aware of the Trade Mark at the time it registered the disputed domain names.
For all the foregoing reasons, the Panel concludes that the disputed domain names have been registered and are being used 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 names <elliottmqmt.com> and <elllottmqmt.com> be transferred to the Complainant.
Sebastian M.W. Hughes
Dated: July 5, 2018