SC IP Limited v. Web Energy
Claim Number: FA2203001986919
Complainant is SC IP Limited (“Complainant”), represented by Jonathan Perlmutter of Birkett Long LLP, United Kingdom. Respondent is Web Energy (“Respondent”), New Zealand.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <betconstruct.us>, registered with GoDaddy.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 4, 2022; the Forum received payment on March 4, 2022.
On March 7, 2022, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <betconstruct.us> 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 the U.S. Department of Commerce’s usTLD Dispute Resolution Policy (the “Policy”).
On March 8, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 28, 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@betconstruct.us. Also on March 8, 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 April 2, 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, SC IP Limited, runs a variety of websites under the BETCONSTRUCT mark which is a technology provider for the online and physically-based gambling industry.
Complainant has rights in the BETCONSTRUCT mark based on registration of the mark via the Madrid Protocol through the World Intellectual Property Organization (“WIPO”) (e.g., Reg. No. 1283380, registered July 7, 2015).
Respondent’s <betconstruct.us> domain name is identical to Complainant’s BETCONSTRUCT mark as it incorporates the entire mark.
Respondent lacks rights and legitimate interests in the <betconstruct.us> domain name. Respondent is not commonly known by the at-issue domain name. Additionally, Respondent does not use the domain for any bona fide offering of goods or services or legitimate noncommercial or fair use as the domain is inactive and Respondent has made no demonstrable preparations to use it.
Respondent registered and uses the <betconstruct.us> domain name in bad faith. Respondent intends to sell the at-issue domain name. Additionally, Respondent inactively holds the domain name. Finally, Respondent provided false WHOIS contract information.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has trademark rights in the BETCONSTRUCT mark.
Respondent registered the at-issue domain name after Complainant acquired rights in BETCONSTRUCT.
Complainant’s has not authorized Respondent to use Complainant’s trademark.
Respondent holds the at-issue domain name passively.
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 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 at-issue domain name is confusingly similar or identical to a trademark in which Complainant has rights.
Complainant’s ownership of a registration for BETCONSTRUCT via the Madrid Protocol through WIPO is sufficient to demonstrate Complainant’s rights in a mark under Policy ¶ 4(a)(i). See Häfele Vietnam LLC v. Cong Hoan, FA 1813668 (Forum Nov. 28, 2018) (“Registration of a mark with the WIPO sufficiently confers a complainant’s rights in a mark for the purposes of Policy ¶ 4(a)(i).”).
Respondent’s <betconstruct.us> domain name contains Complainant’s BETCONSTRUCT trademark followed by the “.us” top-level domain name. The differences between Complainant’s trademark and Respondent’s domain name are insufficient to distinguish one from the other for the purposes of the Policy. Therefore, the Panel finds that Respondent’s <betconstruct.us> domain name is identical or confusingly similar to Complainant’s BETCONSTRUCT trademark under Policy ¶ 4(a)(i). See Cards Against Humanity, LLC v. sri winarti, FA 1736823 (Forum July 31, 2017) (“The Panel therefore finds Respondent’s <cardsagainsthumanity.us> to be identical to Complainant’s CARDS AGAINST HUMANITY mark.”).
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. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006).
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 legitimate 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 shows “Web Energy” as the domain name’s registrant and there is no evidence before the Panel that otherwise indicates Respondent is commonly known by the <betconstruct.us> domain name. Therefore, the Panel finds that Respondent is not commonly known by the at-issue domain name pursuant to 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).
Browsing to <betconstruct.us> returns a webpage displaying the message “File not found (404 error).” Respondent’s passive holding of the at-issue domain name shows neither a bona fide offering of goods or services under Policy ¶ 4(c)(ii), nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iv). See VICORP Rests., Inc. v. Paradigm Techs. Inc., FA 702527 (Forum June 21, 2006) (finding that the respondent’s failure to use the disputed domain name for several years was not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii)); see also Morgan Stanley v. Francis Mccarthy / Baltec Marine Llc, FA 1785347 (Forum June 8, 2018) (“both Domain Names resolve to a web site that shows the words, ‘Not Found, The requested URL / was not found on this server.’ Inactive holding of a domain name does not qualify as a bona fide offering of goods or services within the meaning of Policy ¶ 4(c)(i), or a legitimate non-commercial or fair use within the meaning of Policy ¶ 4(c)(iii).”).
Given the forgoing, Complainant conclusively demonstrates Respondent’s lack of rights and lack of interests in the <betconstruct.us> domain name.
As mentioned above regarding rights and legitimate interests, Respondent fails to make active use of the domain name as the domain name returns only an error message and no substantive content. Respondent’s passive holding of <betconstruct.us> thus shows Respondent’s bad faith registration and use of <betconstruct.us> per Policy ¶ 4(a)(iii). See CommScope, Inc. of North Carolina v. Zhuang Yan / WANGYONG, FA 1764026 (Forum Feb. 14, 2018) (“Respondent’s domain names do not have resolving websites. Using a domain name to resolve to an inactive website (or no website at all) indicates bad faith registration and use.”).
Having established all three elements required under the usTLD Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <betconstruct.us> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: April 4, 2022
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