Carson-Dellosa Publishing, LLC v. Ryan Mohammad Marohombsar
Claim Number: FA2008001907462
Complainant is Carson-Dellosa Publishing, LLC (“Complainant”), represented by Michael J. Allen of Carruthers & Roth, P.A., United States. Respondent is Ryan Mohammad Marohombsar (“Respondent”), Philippines.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <spectrumforlearning.com>, registered with NameCheap, Inc.
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.
Alan L. Limbury, as Panelist.
Complainant submitted a Complaint to the Forum electronically on August 6, 2020; the Forum received payment on August 6, 2020.
On August 6, 2020, NameCheap, Inc. confirmed by e-mail to the Forum that the <spectrumforlearning.com> domain name is registered with NameCheap, Inc. and that Respondent is the current registrant of the name. NameCheap, Inc. has verified that Respondent is bound by the NameCheap, Inc. 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 August 10, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 31, 2020 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@spectrumforlearning.com. Also on August 10, 2020, 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 September 3, 2020, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Alan L. Limbury 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 sells education related goods. Complainant asserts rights in the SPECTRUM mark through its registration of the mark with the United States Patent and Trademark Office (“USPTO”). The disputed domain name <spectrumforlearning.com> is confusingly similar to Complainant’s mark.
Respondent lacks rights or legitimate interests in the disputed domain name. Respondent is not commonly known by that name, nor has Complainant authorized Respondent’s use of the SPECTRUM mark. Additionally, Respondent fails to use the disputed domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use. Rather, Respondent uses the domain pass himself off as connected to Complainant through copying and misappropriating Complainant’s own website content and selling unauthorized and infringing copies of Complainant’s educational goods.
Respondent registered and uses the disputed domain name in bad faith. Respondent targeted the SPECTRUM mark to disrupt Complainant’s business and create confusion among Internet users for commercial gain.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has established all the elements entitling it to relief.
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 has rights in the SPECTRUM mark through its registration of that mark with the USPTO, Reg. No. 4,035,147, registered on October 4, 2011. Respondent’s <spectrumforlearning.com> domain name is confusingly similar to Complainant’s mark, as it incorporates the SPECTRUM mark in its entirety and merely adds the term “for learning” and the inconsequential gTLD “.com”, which may be ignored.
Paragraph 4(c) of the Policy sets out three illustrative circumstances as examples which, if established by Respondent, shall demonstrate rights to or legitimate interests in a disputed domain name for the purposes of paragraph 4(a)(ii) of the Policy, i.e.
(i) before any notice to Respondent of the dispute, the use by Respondent of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) Respondent (as an individual, business or other organization) has been commonly known by the domain name, even if Respondent has acquired no trademark or service mark rights; or
(iii) Respondent is making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert customers or to tarnish the trademark or service mark at issue.
The disputed domain name was registered on June 8, 2020, many years after Complainant registered its SPECTRUM trademark. It resolves to a website which copies virtually all the content of Complainant’s website at <www.carsondellosa.com/spectrum>. These circumstances, coupled with Complainant’s assertions, constitute a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii). Accordingly, the burden shifts to Respondent to show it does have rights or legitimate interests. See Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014). Respondent has made no attempt to do so.
In the circumstances of this case, the Panel finds that Respondent has no rights or legitimate interests in respect of the disputed domain name under Policy ¶ 4(a)(ii).
(iv) by using the domain name, Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website or other on-line location, by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website or location or of a product or service on its website or location.
The use by Respondent of the disputed domain name to resolve to a website which copies virtually all the content of Complainant’s website at <www.carsondellosa.com/spectrum> establishes beyond doubt that Respondent was well aware of Complainant’s SPECTRUM mark when registering the disputed domain name has intentionally attempted to attract, for commercial gain, Internet users to his website by creating a likelihood of confusion with Complainant’s mark as to the source of Respondent’s website and of the products on his website. Thus Respondent both registered and is using the domain name in bad faith under Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <spectrumforlearning.com> domain name be TRANSFERRED from Respondent to Complainant.
Alan L. Limbury, Panelist
Dated: September 7, 2020
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