Contrarian Capital Management, L.L.C. v. alex carstens
Claim Number: FA2009001913402
Complainant is Contrarian Capital Management, L.L.C. (“Complainant”), represented by Beth H. Alter of Seward & Kissel LLP, New York, US. Respondent is alex carstens (“Respondent”), California, US.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <contrarian.capital> ("the Domain Name"), registered with GoDaddy.com, 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 September 23, 2020; the Forum received payment on September 23, 2020.
On September 24, 2020, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <contrarian.capital> 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 September 28, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 19, 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@contrarian.capital. Also on September 28, 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 October 25, 2020 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 is the owner of the Mark CONTRARIAN CAPITAL registered, inter alia, in the USA for financial services with first use recorded as 1995.
The Domain Name, registered in 2020, is identical to the Complainant’s trade mark.
The Respondent does not have rights or legitimate interests in the Domain Name, is not commonly known by it and is not authorised by the Complainant.
The Domain Name is not currently being used but has been used for competing pay-per-click links. This is not a bona fide offering of goods or services or a legitimate noncommercial or fair use. It is registration and use in bad faith diverting Internet users for commercial gain. The Respondent made use of a privacy service.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Complainant is the owner of the Mark CONTRARIAN CAPITAL registered, inter alia, in the USA for financial services with first use recorded as 1995.
The Domain Name registered in 2020 has been used for competing pay-per-click links.
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”).
The Domain Name consists of the Complainant's CONTRARIAN CAPITAL mark (which is registered, inter alia, in USA for financial services with the first use recorded as 1995) with the addition of a dot or period punctuation mark between the two elements of the mark.
The addition of a dot or period punctuation mark does not distinguish the Domain Name from the Complainant’s mark See TechSmith Corporation v. Cao Xiaoxia, FA 1732972 (Forum June 26, 2017).
Accordingly, the Panel holds that the Domain Name is identical for the purpose of the Policy to a mark in which the Complainant has rights.
As such the Panel holds that Paragraph 4(a)(i) of the Policy has been satisfied.
The Complainant has not authorised 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 September 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).
It is clear from the evidence that the Respondent has used the pages attached to the Domain Name to link to businesses competing with the Complainant through pay-per-click links. The usage of the Complainant’s mark which has a reputation in relation to similar services not connected with the Complainants is not fair as the page attached to the Domain Name did not make it clear that there is no commercial connection with the Complainant. As such it cannot amount to the bona fide offering of goods and services or a legitimate commercial or fair use. See Ashley Furniture Industries Inc. v domain admin / private registrations aktien Gesellschaft, FA 1506001626253 (Forum July 29, 2015).
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
Respondent used the Domain Name to point to pay-per-click links to make profit from promoting services not associated with the Complainant in a disruptive and confusing manner. See Health Republic Insurance Company v above.com Legal, FA 1506001622068 (Forum July 10, 2015) (The use of a domain name’s resolving web site to host links to competitors of a complainant shows intent to disrupt that Complainant’s business thereby showing bad faith in use and registration under Policy 4 (b)(iii)). Additionally the Panel holds that the Respondent has intentionally attempted to attract for commercial gain Internet users to competing websites by creating a likelihood of confusion with the Complainant's trade marks as to the source, sponsorship, affiliation or endorsement of the web site or services offered on it under Policy ¶ 4(b)(iv). See Capital One Financial Corp v DN Manager/Whois-Privacy.Net Ltd, FA 1504001615034 (Forum Jun. 4, 2015).
As such, the Panelist believes that the Complainant has made out its case that the Domain Name was registered and used in bad faith and has satisfied the third limb of the Policy under 4(b)(iii) and 4(b)(iv) and there is no need to consider further grounds of bad faith.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <contrarian.capital> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
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