WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Elliott Management Corporation v. Smi Game
Case No. D2018-1062
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 Smi Game, New York, New York, United States.
2. The Domain Name and Registrar
The disputed domain name <elliottrngmt.com> is registered with GoDaddy.com, LLC (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on May 9, 2018. On May 14, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On May 15, 2018, the Registrar transmitted by email to the Center its verification response confirming that Respondent is listed as the registrant and providing Respondent’s 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 May 18, 2018. In accordance with the Rules, paragraph 5, the due date for Response was June 7, 2018. Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on June 8, 2018.
The Center appointed Mark Partridge as the sole panelist in this matter on June 22, 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, Elliott Management Corporation, is an investment fund manager with more than USD 34 billion in assets under management. Complainant owns United States Reg. No. 3,250,277, dated June 12, 2007, for the mark ELLIOTT for “investment management, financial services in the nature of investment advisory”. Complainant has registered and uses the domain name <elliottmgmt.com> for its company website. Based on long use, it also appears that Complainant owns common law trademark rights in the name ELLIOTT MANAGEMENT.
The disputed domain name <elliottrngmt.com> was registered on October 30, 2017. It does not appear to be in current use for an Internet site.
5. Parties’ Contentions
Complainant contends that the disputed domain name is identical or confusingly similar to its trademark, that Respondent has no rights or legitimate interests in the disputed domain name, and that the disputed domain name was registered and used in bad faith to confuse Internet users and defraud customers.
Respondent did not reply to Complainant’s contentions.
6. Discussion and Findings
This Panel finds that Respondent has been afforded a fair opportunity to present its case, so the Panel will proceed to a decision on the Complaint. Respondent’s default does not automatically result in a decision in favor of Complainant.
Paragraph 14(b) of the Rules states that:
“If a Party, in the absence of exceptional circumstances, does not comply with any provision of, or requirement under, these Rules or any request from the Panel, the Panel shall draw such inferences therefrom as it considers appropriate.”
A. Identical or Confusingly Similar
The disputed domain name is hard to distinguish from Complainant’s trademark when presented in lower case letters. The only difference is the substitution of “RN” for “M” after the word Elliott. Overall, the disputed domain name is confusingly similar to Complainant’s trademark ELLIOTT (as it fully incorporates Complainant’s registered trademark ELLIOTT).
The Panel finds that the disputed domain name <elliottrngmt.com> is deceptively and confusingly similar to the ELLOTT and ELLIOTT MANAGEMENT trademarks mark of Complainant, particularly given the use of “rngmt,” imitating “mgmt” which is commonly used as an abbreviation for the term “management”.
Therefore, the Panel finds that Complainant has satisfied paragraph 4(a)(i) of the Policy.
B. Rights or Legitimate Interests
Under the second element of paragraph 4(a) of the Policy, a complainant is required to present a prima facie case that the respondent lacks rights or legitimate interests in the domain name. After a complainant has made a prima facie case, the burden of production shifts to the respondent to present evidence demonstrating rights or legitimate interests in the domain name. See, e.g., Croatia Airlines d.d. v. Modern Empire Internet Ltd., WIPO Case No. D2003-0455.
The Panel finds that Complainant has presented a prima facie case on this point. Respondent has provided no evidence of any right or legitimate interest in the disputed domain name. No justification appears from Respondent’s name, “Smi Game,” or from Respondent’s use on the Internet. In the absence of any evidence indicating a legitimate reason for registered <elliottrngmt.com>, the Panel finds that Complainant has satisfied paragraph 4(a)(ii) of the Policy.
C. Registered and Used in Bad Faith
There is no evidence in the record that the disputed domain name is in use for an Internet site. The disputed domain name instead seems disingenuously designed to facilitate email “phishing” scams. It is likely to be viewed erroneously by email recipients as a legitimate email address for messages from Complainant’s <elliottmgmt.com> email address. In the absence of any evidence or explanation from Respondent, the Panel finds that the only plausible basis for registering the disputed domain name would be for deceptive or fraudulent purposes.
We also find that the obvious bad faith nature of the disputed domain name is sufficient to override that lack of evidence of actual use. Respondent is in the best position to refute allegations of bad faith use, but has failed to respond. That lack of response is appropriately construed against Respondent and in favor of Complainant in this case.
Overall, the facts presented - particularly the curious and suspicious spelling of the disputed domain name - support a finding that Respondent intentionally aped Complainant’s trademark to create the appearance of legitimacy in the execution of a potential phishing scheme. The only feasible explanation for Respondent’s registration and use of the disputed domain name is to cause confusion, mistake and deception by means of the disputed domain name for commercial gain.
The Panel finds therefore that paragraph 4(a)(iii) of the Policy has been satisfied.
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 <elliottrngmt.com> be transferred to Complainant.
Date: July 6, 2018