Primestream Corporation v. raymond rissmiller
Claim Number: FA1905001842044
Complainant is Primestream Corporation (“Complainant”), represented by Sarah M. Stemer of Lerner Greenberg Stemer LLP, Florida, USA. Respondent is raymond rissmiller (“Respondent”), Minnesota, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <primestreamstv.net>, registered with GoDaddy.com, LLC.
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.
Darryl C. Wilson, as Panelist.
Complainant submitted a Complaint to the Forum electronically on May 7, 2019; the Forum received payment on May 7, 2019.
On May 8, 2019, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <primestreamstv.net> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, 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 May 14, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 3, 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@primestreamstv.net. Also on May 14, 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 June 5, 2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Darryl C. Wilson 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
Complainant offers an online streaming service for movies and television programs. Complainant has rights in its PRIMESTREAM mark through registration with the United States Patent and Trademark Office (e.g. Reg. No. 3,365,288, registered Jan. 8, 2008). Respondent’s <primestreamstv.net> domain name is identical or confusingly similar to Complainant’s mark as Respondent merely add the generic term “stv” and the “.net” generic top-level domain (“gTLD”).
Respondent has no rights or legitimate interests in the <primestreamstv.net> domain name. The disputed domain name was registered almost two decades after Complainant began using the PRIMESTREAM mark. The confusingly similar domain name and content is likely to cause confusion, to cause mistake, and to deceive as to the affiliation, connection, or association of Respondent and Complainant.
Respondent’s <primestreamstv.net> domain name was registered and used in bad faith as Respondent attempts to attempted to attract, for commercial gain, internet users to Respondent’s website. Further, Respondent may be tarnishing the reputation of the Complainant.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant is Primestream Corporation (“Complainant”), of Miami, Florida, USA. Complainant is the owner of the domestic registration for the mark PRIMESTREAM, which it has continuously used since at least as early as 1999, in connection with its provision of encoders, webcasting services, computer network integrations, and related technology.
Respondent is Raymond Rissmiller (“Respondent”), of Minneapolis, Minnesota, USA. Respondent registered the <primestreamstv.net> domain name on or about October 10, 2018.
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”).
Complainant asserts rights in its PRIMESTREAM mark through registration with the United States Patent and Trademark Office (e.g. Reg. No. 3,365,288, registered in Jan. 8, 2008). Registration with the USPTO is sufficient to demonstrate rights in a mark under Policy ¶ 4(a)(i). See DIRECTV, LLC v. The Pearline Group, FA 1818749 (Forum Dec. 30, 2018) (“Complainant’s ownership of a USPTO registration for DIRECTV demonstrate its rights in such mark for the purposes of Policy ¶ 4(a)(i).”). The Panel here finds that the Complainant has rights in its PRIMESTREAM mark under Policy ¶ 4(a)(i).
Complainant argues that Respondent’s <primestreamstv.net> domain name is identical or confusingly similar to Complainant’s mark. The Panel notes that while Complainant makes no specific arguments as to identity or confusing similarity, Respondent does add the generic term “stv” and the “.net” gTLD to Complainant’s mark. The addition of words that describe the service offered in connection with the mark and a gTLD are not sufficient to distinguish a disputed domain name from a mark under Policy ¶ 4(a)(i). See The Toronto-Dominion Bank v. George Whitehead, FA 1784412 (Forum June 11, 2018) (“[S]light differences between domain names and registered marks, such as the addition of words that describe the goods or services in connection with the mark and gTLDs, do not distinguish the domain name from the mark incorporated therein per Policy ¶ 4(a)(i).”). The Panel here finds that Respondent’s primestreamstv.net> domain name is confusingly similar to Complainant’s PRIMESTREAM mark under Policy ¶ 4(a)(i).
Respondent raises no contentions with regards to Policy ¶ 4(a)(i).
The Complainant has proven this element.
The Panel notes that Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), then the burden shifts to Respondent to show it does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests”). The Panel here finds that Complainant has set forth the requisite prima facie case.
Complainant argues that Respondent has no rights or legitimate interest in the <primestreamstv.net> domain name. Where a response is lacking, WHOIS information may be used to determine whether a respondent has rights or legitimate interest in a disputed domain name under Policy ¶ 4(c)(ii). See Amazon Technologies, Inc. v. Suzen Khan / Nancy Jain / Andrew Stanzy, FA 1741129 (Forum Aug. 16, 2017) (finding that respondent had no rights or legitimate interests in the disputed domain names when the identifying information provided by WHOIS was unrelated to the domain names or respondent’s use of the same). Additionally, lack of authorization to use a complainant’s mark may indicate that the respondent lacks rights or legitimate interest in a disputed domain name under Policy ¶ 4(c)(ii). See Emerson Electric Co. v. golden humble / golden globals, FA 1787128 (Forum June 11, 2018) (“lack of evidence in the record to indicate a respondent is authorized to use [the] complainant’s mark may support a finding that [the] respondent does not have rights or legitimate interests in the disputed domain name per Policy ¶ 4(c)(ii)”). The WHOIS information for the <primestreamstv.net> domain name indicates the registrant as “raymond rissmiller” and there is no evidence in the record to suggest Respondent was authorized to use the mark. The Panel here finds that Respondent has no rights or legitimate interest in the <primestreamstv.net> domain name Policy ¶ 4(c)(ii).
Next, Complainant argues that Respondent’s <primestreamstv.net> domain name and content are confusingly similar to Complainant’s website, creating a likelihood of confusion as to affiliation, connection, or association between Complainant and Respondent. A disputed domain name which mimics a complainant’s website is not a use indicative of rights or legitimate interest under Policy ¶ 4(a)(ii). See Netflix, Inc. v. Irpan Panjul / 3corp.inc, FA 1741976 (Forum Aug. 22, 2017) (“The usage of Complainant’s NETFLIX mark which has a significant reputation in relation to audio visual services for unauthorised audio visual material is not fair as the site does not make it clear that there is no commercial connection with Complainant and this amounts to passing off . . . As such the Panelist finds that Respondent does not have rights or a legitimate interest in the Domain Name.”). Complainant provides screenshots of the resolving webpage of the disputed domain name and Complainant’s own website, indicating the similarities between them. The Panel here finds that Respondent lacks rights or legitimate interest in the disputed domain name under Policy ¶ 4(a)(ii).
Respondent raises no contentions with regards to Policy ¶ 4(a)(ii).
The Complainant has proven this element.
Complainant argues that Respondent’s <primestreamstv.net> domain name was registered and is being used in bad faith as Respondent is intentionally attempting to attract, for commercial gain, internet users to Respondent’s website by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website. A respondent’s domain name registered and used for the purpose of misdirecting internet users by mimicry of complainant’s mark can be evidence of bad faith under Policy ¶ 4(b)(iv). See Bittrex, Inc. v. Wuxi Yilian LLC, FA 1760517 (Forum Dec. 27, 2017) (finding bad faith per Policy ¶ 4(b)(iv) where “Respondent registered and uses the <lbittrex.com> domain name in bad faith by directing Internet users to a website that mimics Complainant’s own website in order to confuse users into believing that Respondent is Complainant, or is otherwise affiliated or associated with Complainant.”). The Panel again notes that Complainant provides screenshots of the resolving website of the <primestreamstv.net> domain name, showing a site that offers different streaming services similar to Complainant’s business. The Panel here finds that Respondent’s <primestreamstv.net> domain name was registered and is being used in bad faith pursuant to Policy ¶ 4(b)(iv).
Respondent raises no contentions with regards to Policy ¶ 4(a)(iii).
The Complainant has proven this element.
As the Complainant has established all three elements required under the ICANN Policy, the Panel concludes that Complainant’s requested relief shall be GRANTED.
Accordingly, it is Ordered that the <primestreamstv.net> domain name be TRANSFERRED from Respondent to Complainant.
Darryl C. Wilson, Panelist
Dated: June 19, 2019
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