WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

HPR Commodities LLC v. Rob Harper

Case No. D2007-0153

1. The Parties

The Complainant is HPR Commodities LLC, United States of America, represented by Wilmer Cutler Pickering Hale and Dorr LLP, United States of America.

The Respondent is Rob Harper, United States of America.

2. The Domain Name and Registrar

The disputed Domain Name <hprcommodities.com> is registered with DSTR Acquisition PA I, LLC dba DomainBank.com (“the Registrar”).

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 3, 2007. On February 7, 2007, the Center transmitted a request for registrar verification of the Domain Name to the Registrar. On February 12, 2007, the Registrar confirmed to the Center that the Respondent is listed as the registrant and provided the registrant contact details. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy”), 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 Respondent of the Complaint, and the proceedings commenced on February 13, 2007. In accordance with the Rules, paragraph 5(a), the due date for the Response was March 5, 2007.

The Center’s notification of the Complaint stated that the Respondent was required to submit a Response to the Complaint by March 5, 2007, and that if no Response was received, the Respondent would be considered to be in default and an Administrative Panel would be appointed. The Center sent notification of the Complaint to the Respondent by email and international express courier to multiple addresses indicated in the Domain Name registration. The notices sent to the Respondent’s address in New York and to postmaster@hprcommodities.com were returned as undeliverable. However, actual delivery was effected by international courier and email to the Respondent’s technical contact in Italy and to Respondent’s “gmail” address listed in the Domain Name registration.

The Respondent did not submit a Response. Accordingly, on March 6, 2007, the Center notified the Respondent’s default by email sent to the addresses listed in the Registrar’s Whois.

The Center appointed Grant L. Kim as the sole panelist in this matter on March 26, 2007. 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 following facts are established by sworn affidavits of Robert Halper, President of the Complainant HPR Commodities LLC, and William Nugent, an energy futures trader and member of the New York Mercantile Exchange, Inc. (“NYMEX”), as well as by documents annexed to the Complaint.

The Complainant HPR Commodities LLC, is a company based in New York City in the business of professional energy trading. HPR Commodities was founded on October 21, 2003 and is a Non-Clearing Member Firm of NYMEX, the world’s largest physical commodity futures exchange. Robert Halper has been the sole owner and President of HPR Commodities since the founding of the company. Mr. Halper has been using HPR, a shortened version of his surname, in connection with professional energy trading since 1983. The Complainant has been using HPR COMMODITIES as a trade name and service mark since the company was founded in October 2003. The Complainant is also the owner of <hprcommodities.net>, <hprcommodities.org>, <hprcommodities.info>, and <hprcommodities.biz>, all of which were registered after the Complainant discovered the use of <hprcommodities.com> at issue in this proceeding.

The Respondent, Rob Harper, registered the <hprcommodities.com> Domain Name in July 2006. As of October 22, 2006, <hprcommodities.com> resolved to an operational website. The website included the headings “HPR Commodities” and “Welcome to HPR Commodities,” and appeared to describe a legitimate company. The website described “HPR Commodities Ltd.” as a “full service commodity, futures and options brokerage firm,” that was “registered with the New York Mercantile Exchange (NYMEX) and the New York Petroleum Option Exchange (NYPOE).” The website invited users to open either a “Full Service Account” or an “Online Trading Account.”

The Complainant was first alerted to the Respondent’s use of <hprcommodities.com> by a NYMEX staff member. Thereafter, around October 2006, the Complainant hired a private investigator. Through the investigator, the Complainant learned that the Australian Securities and Investments Commission (“ASIC”) had commenced proceedings in Australian federal court relating to the Respondent’s activities. ASIC has alleged that unknown individuals have defrauded investors of over $3.9 million Australian dollars by a scam involving the use of “sophisticated internet technology” and the names of legitimate companies such as “HPR Commodities.”

On October 31, 2006, the Complainant sent a letter by fax to the web host stating that it believed that the Domain Name was registered using a false name and address and was being used fraudulently, “as part of an apparent scheme to defraud investors who wrongly believe the site . . . is connected to, or authorized by, HPR Commodities, LLC.” In response to the notification of this Complaint that was sent by the Center, the web host stated that the website was shut down because of the Complainant’s letter. The Domain Name does not currently resolve to an active site.

5. Parties’ Contentions

A. The Complainant’s Contentions

The Complainant asserts that it has rights in the HPR COMMODITIES mark, which is inherently distinctive or alternatively has acquired distinctive character through continual, extensive, and exclusive use by the Complainant.¹ Complainant contends that <hprcommodities.com> is confusingly similar because it incorporates the HPR COMMODITIES mark in its entirety.

The Complainant asserts that there is no evidence that the Respondent used the HPR COMMODITIES mark at any time in a bona fide offering of goods and services, or that it operated a business known by this name. On the contrary, the Complainant asserts that the Respondent registered and used the Domain Name for the bad faith purpose of intentionally confusing and diverting consumers as to the source and sponsorship of the Respondent’s website. As evidence of bad faith, the Complainant has submitted documents indicating that a number of the statements on the Respondent’s website are false. For example, although the Complainant HPR Commodities LLC is a member of NYMEX, the Respondent HPR Commodities, Ltd. is not a member of NYMEX. Further, the Respondent cannot belong to the “New York Petroleum Option Exchange,” as this entity does not even exist.

The Complainant has also submitted news articles and court pleadings relating to an investigation conducted by the Australian Securities and Investments Commission regarding a scam by which unknown individuals have defrauded investors of over $3.9 million Australian dollars. This scam involves the use of “sophisticated internet technology” and adoption of “the company names of legitimate companies who are licensed to provide financial services in the USA, but not in Australia,” including HPR Commodities.

The Complainant also contends that the Respondent’s name, “Rob Harper”, appears to be a fictitious name based on a misspelling of the name of the Complainant’s principal (Robert Halper), which appeared in the January/February 2005 edition of the Futures Industry Association Magazine. The Complainant further notes that the Domain Name registration lists a New York postal address for the Respondent that is not a real address.

B. The Respondent’s Contentions

The Respondent did not reply to the Complainant’s contentions.

6. Discussion and Findings

The Panel finds that it was properly constituted pursuant to the Rules and that it has jurisdiction to decide this dispute. The Panel notes that the record shows that the Respondent agreed to the Policy as part of the Domain Name registration, and was properly notified of the Complaint and the Default under Paragraph 2(a) of the Rules, including at the email address included in Respondent’s registration. The Panel further notes that notwithstanding the Respondent’s failure to respond to the Complaint, the Panel has reviewed the record to determine whether or not the Complainant is entitled to the relief requested under the Policy, the Rules, and the Supplemental Rules.

The Policy is addressed at resolving disputes concerning allegations of abusive domain name registration and use. See Milwaukee Electric Tool Corporation v. Bay Verte Machinery, Inc., d/b/a The Power Tool Store, WIPO Case No. D2002-0774 (October 26, 2002). The Panel has reviewed the record in light of the three requirements set forth in the Policy, paragraph 4(a), which entitle the Complainant to transfer or cancellation of the disputed Domain Name if: (i) the Domain Name is identical or confusingly similar to a trademark or services mark in which the Complainant has rights; (ii) Respondent has no rights or legitimate interests in the Domain Name; and (iii) Respondent registered and used the Domain Name in bad faith.

A. Identical or Confusingly Similar

The Panel finds that the Complainant has submitted sufficient evidence to establish common law trademark rights in HPR COMMODITIES. It is well-settled that the Policy encompasses both registered and common law marks. See, e.g. The British Broadcasting Corporation v. Jaime Renteria, WIPO Case No. D2000-0050 (March 23, 2000). Under United States trademark law, common law rights in a trademark or service mark “may be established by extensive or continuous use sufficient to identify particular goods or services as those of the trademark owner.” Lillian Vachovsky, COO, Aplus.net Internet Services v. A+ Hosting Inc., WIPO Case No. D2006-0703 (October 26, 2006). Here, the Complainant has submitted undisputed evidence that it has used the HPR COMMODITIES name in commerce since October 2003, and that HPR COMMODITIES is recognized and relied upon by consumers in the energy trading business as exclusively identifying the Complainant. This evidence includes the sworn affidavits of Robert Halper, President of the Complainant, and William Nugent, an energy futures trader and member of the New York Mercantile Exchange, Inc. Further evidence includes several news articles and press releases that refer to HPR COMMODITIES, as well as the results of an online search. This evidence is sufficient to establish the Complainant’s common law rights in HPR COMMODITIES under United States law.

The Domain Name is identical to the Complainant’s HPR COMMODITIES mark, aside from the legally insignificant addition of the top level identifier “.com.” See Lenox Financial Mortgage, LLC v. Digi Real Estate Foundation, WIPO Case No. D2006-1047 (November 28, 2006) (addition of “.com” should be disregarded for the purpose of the first element of the Policy). Accordingly, the Complainant has met its burden under Paragraph 4(a)(i) of the Policy.

B. Rights or Legitimate Interests

In order to meet the second element, the Complainant should make at least a prima facie showing that the Respondent has no rights or legitimate interests in the Domain Name. Once the Complainant has made a prima facie case, the Respondent should present evidence that the Respondent has legitimate rights or interests. Gerd Petrik v. Johnny Carpela, WIPO Case No. D2004-1043 (March 4, 2005) (“Complainant has made the necessary assertions regarding any rights or legitimate interests of the Respondent. While not shifting the ultimate burden of proof, these assertions make it incumbent on Respondent to come forward with evidence refuting Complainant’s assertions and establishing Respondent’s rights or interests in the disputed domain name.”); Belupo d.d. v. WACHEM d.o.o., WIPO Case No. D2004-0110 (April 14, 2004) (noting that “the element of possible rights or legitimate interests of the Respondent in the domain name involves . . . matters, which are peculiarly within the knowledge of the Respondent”, and that requiring the Complainant to make more than a prima facie showing would impose “the impossible task of proving the negative”).

The Complainant has provided uncontested evidence that it has not authorized or licensed the Respondent to use the Complainant’s HPR COMMODITIES mark or to register a Domain Name reflecting the mark. There is no evidence that the Respondent previously conducted a legitimate business under the name HPR COMMODITIES, or has ever been commonly known by HPR COMMODITIES or the <hprcommodities.com> Domain Name. The only instances on the record of the Respondent’s use of the Domain Name are in connection with what appears to be highly misleading and possibly criminal activity.

Based on the foregoing, the Panel finds that the Complainant has presented a prima facie case that the Respondent lacks rights or legitimate interests in the Domain Name. The Respondent has not submitted any reply. Accordingly, the Complainant has met its burden under Paragraph 4(a)(ii) of the Policy.

C. Registered and Used in Bad Faith

The Complainant contends that the Respondent has registered and is using the Domain Name in bad faith under Paragraph 4(b)(iv), by intentionally attempting to attract, for commercial gain, Internet users to the Respondent’s website by creating a likelihood of confusion with the Complainant’s marks and corresponding services.

The Complainant has submitted unrebutted evidence of bad faith. Before it was shut down in response to the Complainant’s letter to the web host, the “www.hprcommodities.com” website resolved to an extensive, operational website. The website appeared to be the legitimate website of a “full service commodities, futures, and options brokerage firm” named “HPR Commodities Ltd.,” which was supposedly “registered with the New York Mercantile Exchange (NYMEX) and the New York Petroleum Option Exchange (NYPOE).” In fact, the record indicates that “HPR Commodities Ltd.” is not a member of NYMEX, and that the New York Petroleum Option Exchange does not even exist. In contrast, the Complainant HPR Commodities LLC is a legitimate company that is a member of NYMEX. Thus, persons who visited the Respondent’s website might be deceived into believing that the website was actually sponsored by the Complainant. Indeed, it appears that the Respondent chose to register the Domain Name precisely for the purpose of abusing the Complainant’s goodwill and reputation to further the Respondent’s fraudulent scheme. This conclusion is supported by the November 23, 2006 press release of the Australian Securities and Investments Commission, which described a scam involving the use of “sophisticated internet technology” and the adoption of “the company names of legitimate companies who are licensed to provide financial services in the USA, but not in Australia,” including “HPR Commodities.”

Previous WIPO UDRP panels have found bad faith use based on a showing that a respondent was engaged in a fraudulent scheme aimed at misleading internet users. Finter Bank Zurich v. Shumin Peng, WIPO Case No. D2006-0432 (June 12, 2006) (bad faith where the respondent replicated the complainant’s website except for the contact information, thereby fraudulently misrepresenting to the public that it was associated with the complainant); Western Union Holdings, Inc. v. XYZ a/k/a Chahat Topiwala, WIPO Case No. D2005-0945 (October 20, 2005) (bad faith where the respondent used the domain name to masquerade as the complainant as part of a fraudulent scheme to solicit monetary deposits to a sham banking institution); Bank for International Settlements v. James Elliott, WIPO Case No. D2003-0987 (March 3, 2004) (bad faith where emails emanating from the disputed domain name purported to represent that a large amount of money would be paid to the recipient upon provision by the recipient of personal information); United Parcel Service of America, Inc. v. Shipping Administration, WIPO Case No. D2002-1162 (February 17, 2003) (bad faith where the respondent intentionally obtained the <upsovernight.com> and <upspackages.com> domain names to mislead website visitors in what appeared to be an internet fraud scheme); Microsoft Corporation v. Webbangladesh.Com, WIPO Case No. D2002-0769 (October 4, 2002) (bad faith where the respondent copied look and feel of complainant’s website for the purpose of furthering a fraudulent scheme).

Bad faith is also evidenced by the Respondent’s use of false registration information. “Rob Harper” appears to be a fictitious name based on a misspelling of the name of the Complainant’s principal that appeared in a news article. Even if “Rob Harper” were, by some coincidence, the Respondent’s true name, it is undisputed that the New York postal address included in the Respondent’s Domain Name registration is not a valid address. Indeed, the notification sent to this address by the Center was returned as undeliverable. The Respondent’s submission of false registration information reinforces the conclusion that the Domain Name was registered and used in bad faith. Western Union Holdings, Inc. v. XYZ a/k/a Chahat Topiwala, WIPO Case No. D2005-0945 (October 20, 2005) (failure to maintain accurate contact information another indication of the respondent’s bad faith); United Parcel Service of America, Inc. v. Shipping Administration, WIPO Case No. D2002-1162 (February 17, 2003) (failure to provide or maintain accurate contact information evidence of bad faith).

In sum, the Respondent’s fraudulent scheme is precisely the type of abusive domain name registration and use that the Policy is intended to prevent. The Panel finds that the Complainant has met its burden under Paragraph 4(a)(iii) of the Policy.

7. Decision

For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the Domain Name, <hprcommodities.com> be transferred to the Complainant.

Grant L. Kim
Sole Panelist

Date: April 9, 2007

¹ The Complainant also contends that it has rights in the “HPR” mark. The Panel has concluded that the Complainant’s rights in the “HPR Commodities” mark are sufficient to decide this dispute, and accordingly does not address the Complainant’s contention regarding the “HPR” mark.