NextHome, Inc. v. John Wawrowski
Claim Number: FA2203001988095
Complainant is NextHome, Inc. (“Complainant”), represented by Caitlin R. Byczko of Barnes & Thornburg LLP, Indiana, USA. Respondent is John Wawrowski (“Respondent”), Ohio, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <nexthomeusa.com>, registered with eNom, 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.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on March 14, 2022; the Forum received payment on March 14, 2022.
On March 14, 2022, eNom, LLC confirmed by e-mail to the Forum that the <nexthomeusa.com> domain name is registered with eNom, LLC and that Respondent is the current registrant of the name. eNom, LLC has verified that Respondent is bound by the eNom, 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 March 18, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 7, 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@nexthomeusa.com. Also on March 18, 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 12, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Richard Hill 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 domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant states that it is an independently owned national franchisor with a focus on changing the way consumers work with local agents and shop for real estate online. Recently ranked as the No. 1 franchise in the country in owner satisfaction by Franchise Business Review, the NextHome franchise now has 500+ offices and 4,800+ members across 48 states. The company closes over 29,500 transactions annually worth over $8.3B in volume. Complainant asserts rights in the NEXTHOME mark through its registration of the mark in the United States in 1998.
Complainant alleges that the disputed domain name is identical or confusingly similar to its NEXTHOME mark as it incorporates the mark in its entirety, merely adding the geographic term “usa” and the “.com” generic top-level domain (gTLD).
According to Complainant, Respondent has no rights or legitimate interests in the disputed domain name. Complainant has not authorized or licensed Respondent to use the NEXTHOME mark, nor is Respondent commonly known by the disputed domain name. Further, Respondent is not using the disputed domain name in connection with a bona fide offering of goods and services or legitimate noncommercial or fair use as the resolving website offers competing services and redirects users to Complainant’s competitors.
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith. Respondent disrupts Complainant’s business by hosting links to Complainant’s competitors. Additionally, Respondent had actual and/or constructive notice of Complainant’s rights in the NEXTHOME mark, based on the fame and notoriety of Complainant’s rights in the mark. Finally, Respondent has not answered Complainant’s cease-and-desist letters.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns the mark NEXTHOME and uses it provide online real estate services.
Complainant’s rights in its mark date back to 1998.
The disputed domain name was registered in 2022.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
The resolving website purports to offer services that compete with those of Complainant and redirects users to Complainant’s competitors.
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 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 disputed domain name incorporates Complainant’s NEXTHOME mark in its entirety, merely adding the geographic term “usa” and the “.com” gTLD. Merely adding a geographic term and a gTLD is not sufficient to differentiate a disputed domain name from a mark under Policy ¶ 4(a)(i). See Franklin Covey Co. v. franklincoveykorea, FA 1774660 (Forum Apr. 11, 2018) (finding that the <franklincoveykorea.com> domain name is confusingly similar to the FRANKLIN COVEY mark, as “[t]he addition of a geographic term and a gTLD do not negate confusing similarity between a domain name and a mark per Policy ¶ 4(a)(i).”); see also Avaya Inc. v. Evelyn Dayda / Avaya Unlimited Sources LLC, FA 1611255 (Forum May 4, 2015) (finding that as “the ‘usa’ portion of the disputed domain name is a generic geographic term, the internet user will assume that the domain name deals with the activities of Complainant in the USA and that it will lead to a website dealing with that subject. The domain name is therefore confusingly similar to the AVAYA mark and the Panel so finds.”). The Panel therefore finds that the <nexthomeusa.com> domain name is confusingly similar to Complainant’s NEXTHOME mark per Policy ¶ 4(a)(i).
Complainant has not licensed or otherwise authorized Respondent to use its mark. Respondent is not commonly known by the disputed domain name: absent a reply, WHOIS information can be used to determine whether a Respondent is commonly known by the disputed domain name. See Amazon Technologies, Inc. v. Suzen Khan / Nancy Jain / Andrew Stanzy, FA 1741129 (Forum Aug. 16, 2017) (finding that respondent had no rights or legitimate interests in the disputed domain names when the identifying information provided by WHOIS was unrelated to the domain names or respondent’s use of the same). Here, the WHOIS information shows that the registrant is “John Wawrowski”. Therefore the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).
The resolving website purports to offer services that compete with those of Complainant and hosts links to Complainant’s competitors. Using a disputed domain name to host competing hyperlinks is not a bona fide offering of goods and services or legitimate noncommercial or fair use. See Walgreen Co. v. Privacy protection service - whoisproxy.ru, FA 1785188 (Forum June 10, 2018) (“Respondent uses the <walgreensviagra.net> domain name to pass itself off as Complainant and display links to a website offering products similar to those offered by Complainant. Using the domain name in this manner is neither a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor a non-commercial or fair use under Policy ¶ 4(c)(iii).”); see also The Toronto-Dominion Bank v. GEORGE WASHERE, FA 1785311 (Forum June 7, 2018) (“Respondent’s confusingly similar <esecuretdbank.com> domain name references a website displaying links to competing third parties as well as links to Complainant and various unrelated third parties. Using the domain name in this manner shows neither a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).”). Therefore the Panel finds that Respondent fails to use the disputed domain name to make a bona fide offering of goods or services under Policy ¶ 4(c)(i), or a non-commercial or fair use under Policy ¶ 4(c)(iii). And the Panel finds that Respondent does not have rights or legitimate interests in the disputed domain name.
Respondent (who did not reply to Complainant’s contentions) has not presented any plausible explanation for its use of Complainant’s mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain name.
Indeed, as already noted, Respondent disrupts Complainant’s business by using the disputed domain name to redirect users to competing websites. When a respondent uses a disputed domain name to present users with competing hyperlinks, the panel may find bad faith. See block.one v. Negalize Interactive Things, FA 1798280 (Forum Aug. 21, 2018) (“Offering links to competing products or services can demonstrate bad faith under Policy ¶ 4(b)(iii) where a respondent registers a domain name that is confusingly similar to the mark of another.”); see also American Council on Education and GED Testing Service LLC v. Anthony Williams, FA1760954 (Forum Jan. 8, 2018) (“Respondent’s hosting of links to Complainant’s competitors demonstrates bad faith registration and use of the <geddiploma.org> domain name pursuant to Policy ¶ 4(b)(iii)”). Thus the Panel finds that Respondent registered and uses the disputed domain name in bad faith per Policy ¶ 4(b)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <nexthomeusa.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: April 12, 2022
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