Titmouse, Inc. v. mary crum / Crum Enterprise
Claim Number: FA2104001941982
Complainant is Titmouse, Inc. (“Complainant”), represented by Brandon J. Witkow of Witkow Baskin, California, USA. Respondent is mary crum / Crum Enterprise (“Respondent”), Florida, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <titmouse.us> (the “disputed domain name”), registered with NameCheap, Inc..
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.
Lynda M. Braun as Panelist.
Complainant submitted a Complaint to the Forum electronically on April 19, 2021; the Forum received payment on April 19, 2021.
On April 19, 2021, NameCheap, Inc. confirmed by e-mail to the Forum that the <titmouse.us> disputed 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 the U.S. Department of Commerce’s usTLD Dispute Resolution Policy (the “Policy”).
On April 22, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 12, 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@titmouse.us. Also on April 22, 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 May 18, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Lynda M. Braun 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 usTLD Dispute Resolution Policy ("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 usTLD Policy, usTLD 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 disputed domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant is a well-known, independent award-winning animation production company based in Los Angeles, California. Complainant has rights in the TITMOUSE trademark based on Complainant’s registration of the mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. 2,727,107, registered December 9, 2000) (hereinafter the “TITMOUSE Mark”).
Complainant contends that Respondent’s <titmouse.us> disputed domain name is identical to Complainant’s TITMOUSE Mark as it contains the TITMOUSE Mark in its entirety and merely adds the country-code top level domain (“ccTLD”) “.us.” Complainant further contends that Respondent has no rights or legitimate interests in the disputed domain name, and that Respondent registered and is using the disputed domain name in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that the disputed domain name is confusingly similar to Complainant’s TITMOUSE Mark, that Respondent has no rights or legitimate interests in the disputed domain name, and that Respondent registered and is using the disputed domain name 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 disputed domain name should be cancelled or transferred:
(1) the disputed 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 disputed domain name; and
(3) the disputed domain name has been registered or is being used in bad faith.
Given the similarity between the Uniform Domain Name Dispute Resolution Policy (“UDRP”) and the usTLD Policy, the Panel will draw upon UDRP precedent as applicable in rendering its decision.
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 and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
The Panel finds that Complainant has rights in the TITMOUSE Mark based on its registration of the mark with the USPTO (e.g., Reg. No. 2,727,107, registered December 9, 2000). Registration of a mark with the USPTO confers upon a complainant trademark rights for purposes of the Policy ¶ 4(a)(i). See Liberty Global Logistics, LLC v. damilola emmanuel / tovary services limited, FA 1738536 (Forum Aug. 4, 2017) (“Registration of a mark with the USPTO sufficiently establishes the required rights in the mark for purposes of the Policy.”)
The addition of a ccTLD to an otherwise recognizable mark does not distinguish the disputed domain name from the TITMOUSE Mark under Policy ¶ 4(a)(i). The addition of a ccTLD to a complainant’s mark is irrelevant in determining whether the disputed domain name is confusingly similar. See MIGROS-GENOSSENSCHAFTS-BUND v. Tayfun yalcin, FA 1621184 (Forum July 8, 2015) (“In light of the fact that Respondent’s disputed domain name incorporates Complainant’s whole mark and merely adds the ccTLD “.us,” the Panel here finds that the disputed domain name is identical to Complainant’s MIGROS mark.”).
Accordingly, the Panel finds that Policy ¶ 4(a)(i) has been established by Complainant.
The Panel finds that Respondent holds no rights or legitimate interests in the disputed domain name. In order to succeed under this element, 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), and then the burden shifts to Respondent to show that it does have rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006) and AOL LLC v. Gerberg, FA 780200 (Forum Sept. 25, 2006) (“Complainant must first 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, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.”). Here, the Panel holds that Complainant has made out a prima facie case.
The Panel finds that Respondent has no rights or legitimate interests in the disputed domain name as Respondent has not provided evidence nor proven that it is commonly known by the disputed domain name, nor has Complainant authorized Respondent to use the TITMOUSE Mark. Respondent has no relationship, affiliation, connection, endorsement or association with Complainant.
Further, 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 because Respondent holds the disputed domain name passively, which is not a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(ii) or (iv). See CrossFirst Bankshares, Inc. v. Yu-Hsien Huang, FA 1785415 (Forum June 6, 2018) (Respondent fails to actively use the disputed domain name as it resolves to a website with no content).
The Panel finds that in this proceeding, Respondent fails to actively use the disputed domain name for a bona fide offering of goods or services or legitimate noncommercial or fair use under Policy ¶ 4(c)(ii) or (iv).
Accordingly, the Panel finds that Policy ¶ 4(a)(ii) has been established by Complainant.
The Panel finds that Respondent registered and is using the disputed domain name to pass off as an employee of Complainant as part of an email phishing scheme, presumably for commercial gain. Use of a disputed domain name in furtherance of a fraudulent phishing scheme constitutes bad faith pursuant to Policy ¶ 4(b)(iii) and/or (iv). See Abbvie, Inc. v. James Bulow, FA 1701075 (Forum Nov. 30, 2016) (“Respondent uses the <abbuie.com> domain name to impersonate Complainant’s CEO. Such use is undeniably disruptive to Complainant’s business and demonstrates bad faith pursuant to Policy ¶ 4(b)(iii), and/or Policy ¶ 4(b)(iv)”).
Here, the Panel finds that Respondent is acting in bad faith. Complainant provides screenshots showing that Respondent uses the disputed domain name to send emails passing off as an employee of Complainant to individuals that respond to Respondent’s fake job posting on the LinkedIn social media site.
Moreover, the Panel finds that Respondent has failed to make an active use of the disputed domain name, which is evidence of bad faith pursuant to Policy ¶ 4(a)(iii). See Dermtek Pharmaceuticals Ltd. v. Sang Im / Private Registration, FA1310001522801 (Forum Nov. 19, 2013) (holding that because the respondent’s website had no content related to the domain name and instead generated the error message “Error 400- Bad Request,” the respondent had registered and used the disputed domain name in bad faith pursuant to Policy ¶ 4(a)(iii)).
Accordingly, the Panel finds that Policy ¶ 4(a)(iii) has been established by Complainant.
Having established all three elements required under the usTLD Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <titmouse.us> disputed domain name be TRANSFERRED from Respondent to Complainant.
Lynda M. Braun, Panelist
Dated: May 25, 2021
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