Oracle International Corporation v. Jan Everno / The Management Group II
Claim Number: FA1904001839678
Complainant is Oracle International Corporation (“Complainant”), represented by Steven M. Levy, Pennsylvania, USA. Respondent is Jan Everno / The Management Group II (“Respondent”), Michigan, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <pracle.com> (‘the Domain Name’), registered with CloudBreakDomains, LLC.
The undersigned certifies that she has acted independently and impartially and to the best of her knowledge has no known conflict in serving as Panelist in this proceeding.
Dawn Osborne as Panelist.
Complainant submitted a Complaint to the Forum electronically on April 19, 2019; the Forum received payment on April 19, 2019.
On April 22, 2019, CloudBreakDomains, LLC confirmed by e-mail to the Forum that the <pracle.com> domain name is registered with CloudBreakDomains, LLC and that Respondent is the current registrant of the name. CloudBreakDomains, LLC has verified that Respondent is bound by the CloudBreakDomains, LLC registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On April 22, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 13, 2019 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@pracle.com. Also on April 22, 2019, the Written Notice of the Complaint, notifying Respondent of the e-mail addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
Having received no response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.
On May 15, 2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Dawn Osborne as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
The Complainant’s contentions can be summarized as follows:
The Complainant is the owner of the trademark ORACLE registered, inter alia, in the USA for computer related goods and services with first use recorded as 1979.
The Domain Name registered in 2017 is a minor misspelling of the Complainant’s mark simply replacing the ‘o’ with a ‘p’. The gTLD “.com” does not prevent this confusing similarity. The Domain Name is confusingly similar to the Complainant’s mark.
The Respondent does not have rights or legitimate interests in the Domain Name, is not commonly known by the Domain Name, and is not authorized by the Complainant. The Domain Name points to sites offering malware or linking to the Complainant’s competitors, tarnishing and diluting the Complainant’s mark, and is a typosquatting registration. This cannot be a bona fide offering of goods or services or a noncommercial legitimate or fair use.
It is bad faith registration and use. The Respondent intentionally attempted to attract Internet users for commercial gain. Typosquatting is bad faith per se and shows actual knowledge of the Complainant’s mark. Directing to malware is also bad faith per se. The Respondent has also been engaged in a pattern of conduct of registration of Domain Names containing third party domain names and has been the subject of several adverse decisions against it under the UDRP. The fact that the Respondent has not responded to communications from the Complainant is also indicative of bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Complainant is the owner of the trademark ORACLE registered, inter alia, in the USA for computer related goods and services with first use recorded as 1979.
The Domain Name was registered in 2017 and there is evidence it has been pointed to malware. The Respondent has been the subject of a number of adverse decisions under the UDRP.
Paragraph 15(a) of 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 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 Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(2) 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.
In view of Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representations pursuant to paragraphs 5(f), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
Identical and/or Confusingly Similar
The Domain Name in this Complaint combines a misspelling of the Complainant’s ORACLE mark (registered, inter alia, in the USA for computer related goods and services with first use recorded as 1979) and the gTLD “.com”. A ‘p’ has been substituted for an ‘o’ which does not distinguish the Domain Name from the Complainant’s mark. Panels have found that registering a domain name that differs from the Complainant’s trademark by one letter does not distinguish a domain name from that mark. See Vanguard Trademark Holdings USA LLC v. Shuai Wei Xu / Xu Shuai Wei, FA 1784238 (Forum June 1, 2018) (“Respondent arrives at each of the disputed domain names by merely misspelling each of the disputed domain names and adding the gTLD ‘.com.’ This is insufficient to distinguish the disputed domain names from Complainant’s trademark.”).
The gTLD “.com” does not serve to distinguish a Domain Name from a Complainant’s mark. See Red Hat Inc. v. Haecke, FA 726010 (Forum July 24, 2006) (concluding that the redhat.org domain name is identical to the complainant's red hat mark because the mere addition of the gTLD was insufficient to differentiate the disputed domain name from the mark).
Accordingly, the Panel finds that the Domain Name is confusingly similar to a mark in which the Complainant has rights for the purpose of the Policy.
Rights or Legitimate Interests
The Complainant has not authorized the use of its mark. The Respondent has not answered this Complaint and there is no evidence or reason to suggest the Respondent is, in fact, commonly known by the Domain Name. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum Sep. 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark).
The Domain Name appears to be a typosquatting registration which is an indication of lack of rights or legitimate interests. See Chegg Inc. v. yang qijin, FA1503001610050 (Forum Apr. 23, 2015) (“Users might mistakenly reach Respondent’s resolving website by misspelling Complainant’s mark. Taking advantage of Internet users’ typographical errors, known as typosquatting, demonstrates a respondent’s lack of rights or legitimate interests under Policy ¶ 4(a)(ii).”).
There is evidence of use of the Domain Name to point to malware, which cannot be bona fide offering of goods or services, or a noncommercial legitimate fair use. See Snap Inc. v. Domain Admin / Whois Privacy Corp., FA 1735300 (Forum July 14, 2017) (“Use of a disputed domain name to offer malicious software does not constitute a bona fide offering or a legitimate use per Policy ¶ 4(c)(i) & (iii).”)
As such, the Panelist finds that the Respondent does not have rights or a legitimate interest in the Domain Name and that the Complainant has satisfied the second limb of the Policy.
Registration and Use in Bad Faith
The Respondent has not answered this Complaint or cease and desist letters from the Complainant or explained why the Respondent should be allowed to register a domain name containing a sign confusingly similar to the Complainant’s mark in what appears to be, on the face of it, a typosquatting registration.
Typosquatting itself is evidence of relevant bad faith registration, use, and knowledge of a Complainant’s mark. See Diners Club int'l Ltd. v Domain Admin ****** It's all in the name ******, FA 156839 (Forum June 23, 2003) ('registering a domain name which entirely incorporates a famous mark with additional letter (s) in the hope that Internet users will mistype the Complainant’s mark and be taken to the Respondent’s site is registration and use in bad faith).
Further, it appears that the Domain Name has been pointed to malware in an attempt to disrupt the business of the Complainant, which is also bad faith registration and use. Twitter, Inc. v. Kiribati Media / Kiribati 200 Media Limited, FA1502001603444 (Forum Mar. 19, 2015) (“Using the disputed domain name to download malicious software into unsuspecting viewers’ computers evidences Respondent’s bad faith registration and use pursuant to Policy ¶ 4(a)(iii).)
Additionally the Respondent is the subject of a large number of adverse decisions under the UDRP showing a pattern of conduct of cybersquatting activity. See Zynga Inc. v. Ryan G Foo / PPA Media Services, FA 1650448 (Forum Jan. 14, 2016) (finding bad faith per Policy ¶ 4(b)(ii) because the complainant demonstrated the respondent had a history of adverse UDRP findings, holding: “Respondent is a serial cybersquatter.”).
As such, the Panel holds that the Complainant has made out its case that the Domain Name was registered and used in bad faith under Policy 4(b)(ii), (iii) and (iv) and has satisfied the third limb of the Policy.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <pracle.com> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: May 16, 2019
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