Ellation, LLC v. Wanda Bryant
Claim Number: FA2102001930711
Complainant is Ellation, LLC (“Complainant”), represented by E.F. Stone of Stone & Vaughan, PLLC, Texas, USA. Respondent is Wanda Bryant (“Respondent”), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <crunchyrollcareers.com>, registered with NameCheap, Inc.
The undersigned certifies that he has acted independently and impartially, and, to the best of his knowledge, has no conflict of interests in serving as Panelist in this proceeding.
Terry F. Peppard as Panelist.
Complainant submitted a Complaint to the Forum electronically on February 2, 2021; the Forum received payment on February 2, 2021.
On February 3, 2021, NameCheap, Inc. confirmed by e-mail to the Forum that the <crunchyrollcareers.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 February 4, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 24, 2021 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@crunchyrollcareers.com. Also, on February 4, 2021, 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 March 1, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Terry F. Peppard as sole Panelist in this proceeding.
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 a response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant, operating under the name and mark CRUNCHYROLL, conducts n international business in the marketing of audio-visual broadcasting services, computer software for posting, searching and displaying multimedia content, games, motion pictures and online community website services.
Complainant holds a registration for the CRUNCHYROLL trademark and service mark, which is on file with the United States Patent and Trademark Office (“USPTO”) as Registry No. 4,026,455, registered September 13, 2011.
Respondent registered the domain name <crunchyrollcareers.com> on November 25, 2020.
The domain name is confusingly similar to Complainant’s CRUNCHYROLL mark.
Respondent has not been commonly known by the domain name.
There is no business relationship or other association between Complainant and Respondent.
Respondent has not been licensed or otherwise authorized by Complainant to use the CRUNCHYROLL mark for any purpose.
Respondent is not using the domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use.
Respondent lacks rights to or legitimate interests in the domain name.
Respondent registered and now uses the domain name in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
(1) the domain name registered by Respondent is confusingly similar to a trademark and service mark in which Complainant has rights; and
(2) Respondent has no rights to or legitimate interests in respect of the domain name; and
(3) the same domain name was registered and is being used by Respondent in bad faith.
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:
ii. Respondent has no rights to or legitimate interests in respect of the domain name; and
iii. the domain name has been registered and is being used by Respondent in bad faith.
In view of Respondent's failure to submit a response, the Panel will, pursuant to paragraphs 5(f), 14(a) and 15(a) of the Rules, decide this proceeding on the basis of Complainant's undisputed representations, and, pursuant to paragraph 14(b) of the Rules, draw such inferences as it deems appropriate. The Panel is entitled to accept as true all reasonable claims and inferences set out in the Complaint unless the supporting evidence is manifestly contradictory. See, for example, Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Forum July 31, 2000) (finding that a respondent’s failure to respond allows all reasonable inferences of fact in the allegations of a UDRP complaint to be deemed true). But see 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 CRUNCHYROLL trademark and service mark sufficient for purposes of Policy ¶ 4(a)(i) by reason of its registration of the mark with a national trademark authority, the United States Patent and Trademark Office (“USPTO”). See, for example, DIRECTV, LLC v. The Pearline Group, FA 1818749 (Forum December 30, 2018):
Complainant’s ownership of a USPTO registration for …[its mark]… demonstrate[s] its rights in such mark for the purposes of Policy¶4(a)(i).
Turning to the core question posed by Policy ¶ 4(a)(i), we conclude from a review of the record that Respondent’s <crunchyrollcareers.com> domain name is confusingly similar to Complainant’s CRUNCHYROLL trademark and service mark. The domain name incorporates the mark in its entirety, with only the addition of the generic term “careers,” which relates to a significant aspect of Complainant’s business, plus the generic Top Level Domain (“gTLD”) “.com.” These alterations of the mark, made in forming the domain name, do not save it from the realm of confusing similarity under the standards of the Policy. See, for example, Microsoft Corporation v. Thong Tran Thanh, FA 1653187 (Forum January 21, 2016) (finding that confusing similarity existed where a disputed domain name contained a UDRP complainant’s entire mark and differed only by the addition of a generic phrase and top-level domain, the differences between the domain name and the mark being insufficient to distinguish one from the other for purposes of Policy ¶ 4(a)(i)).
See also Allianz of Am. Corp. v. Bond, FA 680624 (Forum June 2, 2006) (finding that adding to a mark a gTLD and the generic term “finance,” which described a UDRP complainant’s financial services business conducted under that mark, did not sufficiently distinguish the resulting domain name from the mark under Policy ¶ 4(a)(i)).
Further see Isleworth Land Co. v. Lost in Space, SA, FA 117330 (Forum September 27, 2002):
[I]t is a well-established principle that generic top-level domains are irrelevant when conducting a Policy ¶ 4(a)(i) analysis.
This is because every domain name requires a gTLD or other TLD.
Under Policy ¶ 4(a)(ii), Complainant must make a prima facie showing that Respondent has neither rights to nor legitimate interests in the challenged <crunchyrollcareers.com> domain name, whereupon the burden shifts to Respondent to show that it does have such rights or interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum August 18, 2006) (finding that a UDRP complainant must make a prima facie case that a respondent lacks rights to or legitimate interests in a disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to that respondent to show that it does have such rights or interests). See also AOL LLC v. Gerberg, FA 780200 (Forum September 25, 2006):
Complainant must … make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, … the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.
Complainant has made a sufficient prima facie showing under this head of the Policy. Respondent’s failure to respond to the Complaint therefore permits us to infer that Respondent does not have rights to or legitimate interests in the disputed domain name. See Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO December 21, 2000) (finding that a respondent’s failure to respond to a UDRP complaint allows a presumption that a complainant’s allegations are true unless they are clearly contradicted by the evidence). Nonetheless, we will examine the record before us, in light of the several considerations set out in Policy ¶ 4(c)(i)-(iii), to determine whether there is in it any basis for concluding that Respondent has rights to or legitimate interests in the contested domain name that are cognizable under the Policy.
We begin by noting that Complainant contends, and Respondent does not deny, that Respondent has not been commonly known by the questioned <crunchyrollcareers.com> domain name, and that Complainant has not licensed or otherwise authorized Respondent to use the CRUNCHYROLL mark for any purpose. Moreover, the pertinent WHOIS information identifies the registrant of the domain name only as “Wanda Bryant,” which does not resemble the domain name. On this record, we conclude that Respondent has not been commonly known by the disputed domain name so as to have acquired rights to or legitimate interests in it within the ambit of Policy ¶ 4(c)(ii). See, for example, Google LLC v. Bhawana Chandel / Admission Virus, FA 1799694 (Forum September 4, 2018) (concluding that a respondent was not commonly known by a disputed domain name incorporating the GOOGLE mark where the relevant WHOIS record identified that respondent as “Bhawana Chandel,” and nothing in the record showed that that respondent was authorized to use a UDRP Complainant’s mark in any manner).
We next observe that Complainant asserts, without objection from Respondent, that Respondent uses the domain name to pass itself off as human resources employees of Complainant via spam e-mail messages purporting to offer unsuspecting Internet users employment with Complainant, with the apparent object of obtaining sensitive personal information from them. This employment is neither a bona fide offering of goods or services by means of the domain name under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use of it under Policy ¶ 4(c)(iii) such as would confirm in Respondent rights to or legitimate interests in the domain name as provided in those subsections of the Policy. See, for example, Emerson Electric Co. v. Adilcon Rocha, FA 1735949 (Forum July 11, 2017) (finding that a respondent’s attempt to pass itself off as a UDRP complainant through e-mail messages tied to a disputed domain name did not constitute a bona fide offering of goods or services, and that that respondent therefore lacked rights to or legitimate interests in the domain name). See also Goodwin Procter LLP v. GAYLE FANDETTI, FA 1738231 (Forum August 8, 2017):
[T]he Domain Name has been used in an attempted fraud. As such it cannot have been registered for a legitimate purpose.
The Panel therefore finds that Complainant has satisfied the proof requirements of Policy ¶ 4(a)(ii).
From the facts set out in the Complaint, we have no doubt that Respondent has used the contested <crunchyrollcareers.com> domain name, which we have found to be confusingly similar to Complainant’s CRUNCHYROLL mark, to profit illicitly from the confusion thus caused among unsuspecting Internet users as to the possibility of Complainant’s association with the domain name. Under Policy ¶ 4(b)(iv), this stands as proof of Respondent’s bad faith in registering and using the domain name. See, for example, ABBOTT, Inc. v. James Bulow, FA 1701075 (Forum November 30, 2016):
Respondent uses the … domain name to impersonate Complainant’s CEO. Such use is undeniably disruptive to Complainant’s business and demonstrates bad faith [registration and use of the domain name] pursuant to Policy ¶ 4(b)…(iv).
We are also convinced by the evidence that Respondent knew of Complainant and its rights in the CRUNCHYROLL mark when it registered the disputed <crunchyrollcareers.com> domain name. This further demonstrates Respondent’s bad faith in registering it. See, for example, Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum February 6, 2014):
The Panel … here finds actual knowledge [of the rights of a mark holder by a respondent domain name registrant at the time it registered a confusingly similar domain name, and, therefore, that respondent’s bad faith in registering it] through the name used for the domain and the use made of it.
The Panel thus finds that Complainant has met its obligations of proof under Policy ¶ 4(a)(iii).
Complainant having established all three elements required to be proven under the ICANN Policy, the Panel concludes that the relief requested must be, and it is hereby, GRANTED.
Accordingly, it is Ordered that the <crunchyrollcareers.com> domain name be TRANSFERRED forthwith from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: March 11, 2021
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