Arris Enterprises LLC v. Carolina Rodrigues / Fundacion Comercio Electronico
Claim Number: FA2109001963536
Complainant is Arris Enterprises LLC (“Complainant”), represented by William Schultz of Merchant & Gould, P.C., Minnesota, USA. Respondent is Carolina Rodrigues / Fundacion Comercio Electronico (“Respondent”), Panama.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <ruckusswireless.com> (“the disputed 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.
Lynda M. Braun as Panelist.
Complainant submitted a Complaint to the Forum electronically on September 13, 2021; the Forum received payment on September 13, 2021.
On September 14, 2021, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <ruckusswireless.com> disputed 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 15, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 5, 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@ruckusswireless.com. Also on September 15, 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 October 6, 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 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 disputed domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant offers a wide range of goods and services related to computers and wireless networks. Complainant has rights in the RUCKUS trademark through its registration of the mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 4,408,483, registered on September 24, 2013, among others) (hereinafter collectively referred to as the RUCKUS Mark).
Complainant contends that Respondent’s <ruckusswireless.com> disputed domain name is identical or confusingly similar to Complainant’s RUCKUS Mark as it only adds an extra letter “s”, the generic word “wireless”, and the “.com” generic top-level domain (“gTLD”).
Complainant further claims that Respondent lacks rights or legitimate interests in the disputed domain name as Respondent is not commonly known by the disputed domain name nor did Complainant authorize Respondent to use the RUCKUS Mark in any way. Moreover, Complainant contends that Respondent fails to make a bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent attempts to divert Internet users to a page containing third-party pay-per-click sponsored web pages. Finally, Complainant contends that Respondent registered and is using the disputed domain name in bad faith as Respondent attempts to create a likelihood of confusion with Complainant’s RUCKUS Mark and uses hyperlinks to divert Internet users to Respondent’s website.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that Complainant has registered trademark rights in the RUCKUS Mark, that the disputed domain name is confusingly similar to Complainant’s RUCKUS Mark, that Respondent lacks rights or legitimate interests in respect of 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 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 Panel finds that Complainant has rights in the RUCKUS Mark for purposes of Policy ¶ 4(a)(i) as Complainant has rights in the RUCKUS Mark through its registration of the mark with the USPTO (e.g., Reg. No. 4,408,483, registered on September 24, 2013). Registration of a mark with the USPTO is sufficient to establish rights in the mark. 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).”); see also Brooks Sports, Inc. v. Joyce Cheadle, FA 1819065 (Forum Dec. 28, 2018) (finding that Complainant’s registration of the BROOKS mark with the USPTO sufficiently conferred its rights in the mark under Policy ¶ 4(a)(i).”).
The Panel also finds that Respondent’s disputed domain name is confusingly similar to Complainant’s RUCKUS Mark as Respondent merely adds the letter “s” to “ruckus” and adds the dictionary or generic term “wireless”, followed by the “.com” generic Top-Level Domain (“gTLD”).
This minor misspelling of “ruckuss” (adding an extra “s”), or typosquatting,[i], does not defeat a finding of confusing similarity or identity. See LodgeWorks Partners, L.P. v. Isaac Goldstein / POSTE RESTANTE, FA 1717300 (Forum Apr. 5, 2017) (“The Panel agrees; Respondent’s <archerhotels.com> is confusingly similar to complainant’s ARCHER HOTEL mark.”). Specifically, slight variations to a mark caused by addition and/or deletion of letters are generally insufficient to overcome confusing similarity between a disputed domain name and a mark under Policy ¶ 4(a)(i). See Google, Inc. v. DktBot.org, FA 286993 (Forum Aug. 4, 2004) (“The mere addition of a single letter to the complainant’s mark does not remove the respondent’s domain names from the realm of confusing similarity in relation to the complainant’s mark pursuant to Policy ¶ 4(a)(i).”); Thus. the Panel concludes that the disputed domain name is confusingly similar to the RUCKUS Mark.
Moreover, adding dictionary or generic terms and a gTLD to a complainant’s mark does not distinguish a disputed domain name from the 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).”).
Accordingly, the Panel finds that Policy ¶ 4(a)(i) has been established by Complainant.
The Panel finds that Respondent has no rights or legitimate interests in the disputed domain name. Under the Policy, Complainant is required to make out a prima facie case that Respondent lacks rights or legitimate interests in the disputed domain name. Once such a prima facie case is made, Respondent carries the burden of demonstrating rights or legitimate interests in the disputed domain name. See 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”).
In this case, Respondent did not carry its burden to come forward with evidence of its rights or legitimate interests in the disputed domain name as it did not submit a response to the Complaint, but given the facts of this case, the Panel finds that Respondent would have been hard pressed to furnish availing arguments had it chosen to respond. In support, the Panel finds that Respondent is not commonly known by the disputed domain name or any name similar to it, nor has Complainant authorized or licensed Respondent to use its RUCKUS Mark.
Accordingly, the Panel finds that Policy ¶ 4(a)(ii) has been established by Complainant.
The Panel concludes that Respondent registered and is using the disputed domain name in bad faith.
First, the Panel finds that Respondent attracts users for commercial gain by displaying third-party pay-per-click sponsored links. Use of a confusingly similar domain name to display third party hyperlinks and potentially collect click-through fees is evidence of bad faith under Policy ¶ 4(b)(iv). See T-Mobile USA, Inc. v. utahhealth, FA 697821 (Forum June 7, 2006) (holding that the registration and use of a domain name confusingly similar to a complainant’s mark to direct Internet traffic to a commercial “links page” in order to profit from click-through fees or other revenue sources constitutes bad faith under Policy ¶ 4(b)(iv)).
Here, Complainant has provided screenshots of the resolving website of Respondent’s disputed domain name that displays hyperlinks to products competitive with Complainant’s business, which demonstrates bad faith
Finally, the use of a disputed domain name to intentionally attempt to attract Internet users to a respondent’s website or online location by creating a likelihood of confusion or a false association with a complainant’s mark as to the source, sponsorship, affiliation or endorsement of the registrant’s website or online location demonstrates registration and use in bad faith. See AOL LLC v. iTech Ent, LLC, FA 726227 (Forum July 21, 2006). Therefore, the Panel concludes that Respondent registered and is using the disputed domain name in bad faith per Policy ¶ 4(b)(iv).
Accordingly, the Panel finds that Policy ¶ 4(a)(iii) has been established by Complainant.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <ruckusswireless.com> disputed domain name be TRANSFERRED from Respondent to Complainant.
Lynda M. Braun, Panelist
Dated: October 15, 2021
[i] This misspelling is an example of typosquatting, a situation in which a domain name includes a misspelled registered trademark.
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