DECISION

Goldfinger Bullion Reserve Corp. v. no c/o Raymond DeYoung

Claim Number: FA0304000155893

PARTIES

Complainant is Goldfinger Bullion Reserve Corp., Camarillo, CA (Complainant) represented by Glenn J. Dickinson of Nordman, Cormany, Hair & Compton. Respondent is Raymond DeYoung No, Lewisville, TX (Respondent).

REGISTRAR AND DISPUTED DOMAIN NAME 

The domain name at issue is <e-bulloin.com> registered with Tucows, Inc.

PANEL

The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.

William H. Andrews, as Panelist.

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum (the Forum) electronically on April 25, 2003; the Forum received a hard copy of the Complaint on April 28, 2003.

On April 28, 2003, Tucows, Inc. confirmed by e-mail to the Forum that the domain name <e-bulloin.com> is registered with Tucows, Inc. and that the Respondent is the current registrant of the name. Tucows, Inc. has verified that Respondent is bound by the Tucows, Inc. registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the Policy).

On May 7, 2003, a Notification of Complaint and Commencement of Administrative Proceeding (the Commencement Notification), setting a deadline of May 27, 2003 by which Respondent could file a Response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts, and to postmaster@e-bulloin.com by e-mail.

A timely Response was received and determined to be complete on May 19, 2003.

On June 2, 2003, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the Forum appointed William H. Andrews as Panelist.

RELIEF SOUGHT

Complainant requests that the domain name be transferred from Respondent to Complainant.

PARTIES’ CONTENTIONS

A. Complainant

Complainant contends the site, <e-bulloin.com>, is confusingly similar to Complainant’s <e-bullion.com> site;  that Respondent has no legitimate rights to the site; and that the site was registered and used in bad faith, in that it was used solely to divert customers from Complainant’s site.

B. Respondent

Respondent disclaims rights to the domain name, <e-bulloin.com>, through his Response submitted on May 19, 2003.  Respondent contends he has never registered, used or claimed the domain name <e-bulloin.com>, that he never had any business or personal dealings with a company named Tucows, Inc., the Registrar of record, and that he never expressly or impliedly consented to the use of his name for the purpose of registering the site.

FINDINGS

Complainant is and has been the registered owner of the <e-bullion.com> domain name since March 1, 1999.  Complainant has used the site in connection with its business, offering on-line investment, trading and exchange of electronic credits backed by precious metals.  On April 15, 2003, Complainant discovered that someone had posted a website, <e-bulloin.com>, without Complainant’s authorization.  The <e-bulloin.com> site was identical in its pages and layout to Complainant’s site.

DISCUSSION

Paragraph 15(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the Rules) instructs this Panel to decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable.

Paragraph 4(a) of the Policy requires that the Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:

(1)  the domain name registered by the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;

(2)  the Respondent has no rights or legitimate interests in respect of the domain name; and

(3)  the domain name has been registered and is being used in bad faith.

Identical and/or Confusingly Similar

Complainant contends that the <e-bulloin.com> site is confusingly similar to <e-bullion.com>, a site in which Complainant has rights.  The panel agrees.  The transposition of letters does not create a distinct mark capable of overcoming a showing of confusing similarity.  See Google Inc. v. John G., FA 106084 (Nat. Arb. Forum Apr. 26, 2002), which found that the name <googel.com> was confusingly similar and noting that the transposition of letters did not establish a distinct mark). Complainant uses the word “bullion” to identify its online trading services in gold bullion and other precious metals.  Complainant has shown that it has rights in the <e-bullion.com> mark through its submissions, which are unrefuted.  Complainant notes that the term “bulloin” is not a word within the English language, nor is it the name of a place.  No rights have been asserted by Respondent in the “bulloin” name, and there is no apparent explanation for use of the term “bulloin” in the registered site other than to divert would-be users of Complainant’s site. 

Rights or Legitimate Interests

Complainant contends that Respondent’s wholesale copying of two pages from complainant’s <e-bullion.com> domain name, and creation of a log-on screen that mimicked Complainant’s similar screen, all done with the intent to intercept confidential account information from Complainant’s customers, is prima facie evidence that Respondent lacks rights or legitimate interests in the <e-bulloin.com> domain name. See Vivendi Universal Games and Davidson & Assocs., Inc. v. Ronald A. Ballard, FA 146621 (Nat. Arb. Forum March 13, 2002) (finding that the “exploitation of the goodwill and consumer trust surrounding the BLIZZARD NORTH mark to aid in [Respondent’s] illegal activities is prima facie evidence of a lack of rights and legitimate interests in the disputed domain name”); see also Hewlett-Packard Co. v. Inversiones HP Milenium C.A., FA 105775 (Nat. Arb. Forum Apr. 12, 2002) (finding Respondent’s use of the confusingly similar domain name <hpmilenium.com> to sell counterfeit versions of Complainant’s HP products was not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i)).

Respondent does not contest Complainant’s allegations, or any element of the Complaint, but instead avers that it was the victim of identity theft and the disputed domain name was registered without its consent. Respondent has further expressed a willingness to transfer the disputed domain name. The Panel finds that this is evidence that Respondent lacks rights or legitimate interests in the disputed domain name. See Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO Dec. 21, 2000) (finding that Respondent’s failure to submit a formal response combined with its agreement at the onset of the Complaint to transfer the disputed names satisfies all the requirements of 4(a)); see also Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (finding that Respondent’s agreement to transfer and suggestion that a formal Complaint be initiated to confirm transfer are evidence of Respondent’s lack of legitimate interests).

Registration and Use in Bad Faith

Complainant argues that Respondent used  a confusingly similar domain name to post a counterfeit website in order to facilitate the interception of confidential information, and that the same is evidence that Respondent both registered the disputed domain name with knowledge of Complainant’s mark and used the domain name in bad faith. See Vivendi Universal Games and Davidson & Assocs., Inc. v. Ronald A. Ballard, FA 146621 (Nat. Arb. Forum March 13, 2002) (stating that Respondent’s “creation of a likelihood of confusion for the purposes of illegitimate commercial gain via theft not only runs afoul of Policy ¶ 4(b)(iv), but violates Paragraph 2(c) of the UDRP”); see also Monsanto Co. v. Decepticons, FA 101536 (Nat. Arb. Forum Dec. 18, 2001) (finding that the use of the <monsantos.com> domain name to misrepresent to Internet users some sponsorship by Complainant and to provide misleading information to the public supported a finding of bad faith).

Indeed, no legitimate interest has been set forth to contradict the assertions of Complainant and thereby establish a legitimate use for the domain name <e-bulloin.com>.  As has been noted, Respondent herein, does not dispute any of the allegations of Complainant.  Rather, Respondent alleges that he was not involved in registration of the site, that he never had any business dealings with Tucows, Inc, the registrar of record, and that he never gave permission, either express or implied, for the use of his name in registering the site.

Because Complainant’s evidence is uncontradicted, and because it appears to the panel, on the basis of the aforementioned evidence, that the name <e-bulloin.com> is confusingly similar to the name used for Complainant’s site, and that <e-bulloin.com> was not used for legitimate business purposes, but in bad faith for the purpose of diverting customers of Complainant, the Panel finds that the domain name should be transferred.

DECISION

Having established all three elements required under ICANN Policy, the Panel concludes that relief sought by Complainant shall be GRANTED.

Accordingly, it is Ordered that the <e-bulloin.com> domain name be TRANSFERRED from Respondent to Complainant.

William H. Andrews, Panelist

Dated: June 12, 2003

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