Arris Enterprises LLC v. Don Wrinkles
Claim Number: FA2203001986404
Complainant is Arris Enterprises LLC (“Complainant”), represented by William Schultz of Merchant & Gould, P.C., Minnesota, USA. Respondent is Don Wrinkles (“Respondent”), Pennsylvania, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <ruckuswireless.us>, registered with Sav.com, LLC.
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.
Paul M. DeCicco, as Panelist.
Complainant submitted a Complaint to the Forum electronically on March 1, 2022; the Forum received payment on March 1, 2022.
On March 1, 2022, Sav.com, LLC confirmed by e-mail to the Forum that the <ruckuswireless.us> domain name is registered with Sav.com, LLC and that Respondent is the current registrant of the name. Sav.com, LLC has verified that Respondent is bound by the Sav.com, LLC registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with U.S. Department of Commerce’s usTLD Dispute Resolution Policy (the “Policy”).
On March 3, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 23, 2022 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@ruckuswireless.us. Also on March 3, 2022, 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 27, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Paul M. DeCicco 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 to the usTLD Dispute Resolution Policy (“Rules”). 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 domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant contends as follows:
Complainant provides in-home IPTV content distribution over wireless networks.
Complainant has rights in the RUCKUS mark through its registration of the mark with the United States Patent and trademark Office (“USPTO”).
Respondent’s <ruckuswireless.us> domain name is confusingly similar to Complainant’s RUCKUS mark. Respondent incorporates the mark in its entirety and adds the generic term “wireless” along with the “.us” country-code top-level domain (“ccTLD”).
Respondent lacks rights or legitimate interests in the <ruckuswireless.us> 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. Respondent fails to make a bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent attempts to sell the domain name.
Respondent registered and used the <ruckuswireless.us> domain name in bad faith as Respondent attempts to sell the disputed domain name. Additionally, Respondent had actual knowledge of Complainant’s rights in the RUCKUS mark due to the longstanding use and fame of the mark in commerce.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has rights in the RUCKUS mark.
Complainant’s rights in RUCKUS existed prior to Respondent’s registration of the at-issue domain name.
Respondent is not authorized to use Complainant’s trademarks.
Respondent’s offers the at-issue domain name for sale.
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 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 at-issue domain name is confusingly similar to a trademark in which Complainant has rights.
Complainant’s ownership of a USPTO trademark registration for its RUCKUS mark establishes Complainant’s rights in such mark for the purposes of Policy ¶ 4 (a)(I). See BGK Trademark Holdings, LLC & Beyoncé Giselle Knowles-Carter v. Chanphut / Beyonce Shop, FA 1626334 (Forum Aug. 3, 2015) (asserting that Complainant’s registration with the USPTO (or any other governmental authority) adequately proves its rights under Policy ¶ 4(a)(i)).
The at-issue domain name consists of Complainant’s RUCKUS trademark followed by the term “wireless” and with all followed by the “.us” top level domain name. The differences between <ruckuswireless.us> and Complainant’s RUCKUS trademark are insufficient to distinguish the domain name from Complainant’s trademark for the purposes of the Policy. Therefore, the Panel finds pursuant to Policy ¶ 4(a)(i) that Respondent’s <ruckuswireless.us> domain name is confusingly similar to Complainant’s RUCKUS trademark. See Wiluna Holdings, LLC v. Edna Sherman, FA 1652781 (Forum Jan. 22, 2016) (finding the addition of a generic term and gTLD is insufficient in distinguishing a disputed domain name from a mark under Policy ¶ 4(a)(i)), see also Philip Morris USA Inc. v. Naveen Patnayak, FA 1731422 (Forum June 12, 2017) (“First, the addition of “.us” is inconsequential to the claim of confusing similarity.”).
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 the at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006). Since Respondent failed to respond, Complainant’s prima facie showing acts conclusively.
Respondent lacks both rights and legitimate interests in respect of the at-issue domain name. Respondent is not authorized to use Complainant’s trademark in any capacity and, as discussed below, there are no Policy ¶ 4(c) circumstances from which the Panel might find that Respondent has rights or interests in respect of the at‑issue domain name. See Emerson Electric Co. v. golden humble / golden globals, FA 1787128 (Forum June 11, 2018) (“lack of evidence in the record to indicate a respondent is authorized to use [the] complainant’s mark may support a finding that [the] respondent does not have rights or legitimate interests in the disputed domain name per Policy ¶ 4(c)(ii)”).
The WHOIS information for the at-issue domain name identifies the domain name’s registrant as “Don Wrinkles” and the record before the Panel contains no evidence tending to prove that Respondent is commonly known by either the <ruckuswireless.us> domain name or by RUCKUS. The Panel therefore concludes that Respondent is not commonly known by the <ruckuswireless.us> domain name for the purposes of Policy ¶ 4(c)(iii). See Instron Corp. v. Kaner, FA 768859 (Forum Sept. 21, 2006) (finding that the respondent was not commonly known by the disputed domain names because the WHOIS information listed “Andrew Kaner c/o Electromatic a/k/a Electromatic Equip't” as the registrant and there was no other evidence in the record to suggest that the respondent was commonly known by the domain names in dispute).
Additionally, Respondent attempts to sell its <ruckuswireless.us> domain name. On browsing to the domain name Respondent directs internet traffic to a website offering the <ruckuswireless.us> domain name for sale in an amount appearing to be in excess of Respondent’s reasonable costs for such domain name. Respondent’s general offer to sell <ruckuswireless.us> indicates either a bona fide offering of goods or services under Policy ¶ 4(c)(ii) or a legitimate noncommercial or fair use of the domain name under Policy ¶ 4(c)(iv). See 3M Company v. Kabir S Rawat, FA 1725052 (Forum May 9, 2017) (holding that “a general offer for sale… provides additional evidence that Respondent lacks rights and legitimate interests” in a disputed domain name).
Given the forgoing, Complainant satisfies its initial burden and conclusively demonstrates Respondent’s lack of rights and lack of interests in respect of the at-issue domain name under Policy ¶ 4(a)(ii).
As discussed below without limitation, bad faith circumstances are present which compel the Panel to conclude that Respondent acted in bad faith pursuant to paragraph 4(a)(iii) of the Policy.
First, Respondent’s use of the at-issue domain name to address a webpage generally offering the <ruckuswireless.us> domain name for sale shows Respondent’s bad faith under Policy ¶ 4(b)(i). See DIRECTV, LLC v. michal restl c/o Dynadot, FA 1788826 (Forum July 5, 2018) (“The <directvgo.com> domain name redirects users to a third party website, it first states, via a link, that the <directvgo.com> domain name may be for sale. If the link is clicked, users are redirected to a page that states, “The owner of Directvgo.com has chosen to receive offer inquiries regarding this domain name.” Therefore, the Panel holds that Respondent registered and uses the domain name in bad faith per Policy ¶ 4(b)(i).”).
Moreover, Respondent had actual knowledge of Complainant’s rights in the RUCKUS mark when it registered <ruckuswireless.us> as a domain name. Respondent’s actual knowledge is evident from the notoriety of Complainant’s mark and from Respondent’s inclusion of the suggestive term “wireless” in the at-issue domain name. Respondent’s registration and use of a confusingly similar domain name with knowledge of Complainant’s rights in such domain name shows Respondent’s bad faith pursuant to Policy ¶ 4(a)(iii). See Google Inc. v. Ahmed Humood, FA1411001591796 (Forum Jan. 7, 2015) (“This Panel makes that inference; Respondent has actual knowledge of Complainant’s mark at the time of domain name registration based on the fame of Complainant’s GOOGLE mark and Respondent’s use of one of the disputed domain names to detail Internet domain name registration and maintenance services related to and in competition with Complainant.”); see also, Norgren GmbH v. Domain Admin / Private Registrations Aktien Gesellschaft, FA1501001599884 (Forum Feb. 25, 2014) (holding that the respondent had actual knowledge of the complainant and its rights in the mark, thus demonstrating bad faith registration under Policy ¶ 4(a)(iii), where the respondent was using the disputed domain name to purposely host links related to the complainant’s field of operation).
Having established all three elements required under the usTLD Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <ruckuswireless.us> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: March 28, 2022
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