Coulter Ventures, LLC d/b/a Rogue Fitness v. Marisa Johnson, EverCommerce
Claim Number: FA2205001996997
Complainant is Coulter Ventures, LLC d/b/a Rogue Fitness ("Complainant"), represented by Janet Lee of Banner & Witcoff, Ltd., Illinois, USA. Respondent is Marisa Johnson, EverCommerce ("Respondent"), Colorado, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <roguefitness.careers>, registered with NameCheap, Inc.
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.
David E. Sorkin as Panelist.
Complainant submitted a Complaint to the Forum electronically on May 19, 2022; the Forum received payment on May 19, 2022.
On May 19, 2022, NameCheap, Inc. confirmed by email to the Forum that the <roguefitness.careers> 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 ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy").
On May 24, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 13, 2022 by which Respondent could file a Response to the Complaint, via email to all entities and persons listed on Respondent's registration as technical, administrative, and billing contacts, and to postmaster@roguefitness.careers. Also on May 24, 2022, the Written Notice of the Complaint, notifying Respondent of the email 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 June 20, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed David E. Sorkin 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 produces strength and fitness products and services and related entertainment media. Complainant has used ROGUE and ROGUE FITNESS in connection with these goods and services since its inception in 2006. Complainant owns longstanding United States trademark registrations for ROGUE and ROGUE FITNESS in standard character form, and also asserts common law rights in the marks arising from continuous use and promotion.
Respondent registered the disputed domain name <roguefitness.careers> via a privacy registration service in January 2022. The domain name does not resolve to a website, although Complainant is concerned that it is being used or will be used to conduct fraudulent activity. Complainant states that Respondent is not commonly known by the domain name and is not authorized to use Complainant's mark.
Complainant contends on the above grounds that the disputed domain name <roguefitness.careers> is identical or confusingly similar to its ROGUE FITNESS mark; that Respondent lacks rights or legitimate interests in the disputed domain name; and that the disputed domain name was registered and is being used in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that the disputed domain name is identical to a mark in which Complainant has rights; that Respondent lacks rights or legitimate interests in respect of the disputed domain name; and that the disputed domain name was registered and is being used 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 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 Overview of WIPO Panel Views on Selected UDRP Questions, § 4.3 (3d ed. 2017), available at http://www.wipo.int/amc/en/domains/search/overview3.0/; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (dismissing complaint where complainant failed to "produce clear evidence to support its subjective allegations").
The disputed domain name <roguefitness.careers> corresponds to Complainant's registered ROGUE FITNESS trademark, with the space omitted and the ".careers" top-level domain appended. The omission of spaces and addition of a top-level domain are normally irrelevant for purposes of paragraph 4(a)(i) of the Policy. See, e.g., Coulter Ventures, LLC d/b/a Rogue Fitness v. Kay Bitzer / MindBody Online, FA 1986874 (Forum Apr. 6, 2022) (finding <roguefitness.coach> identical to ROGUE FITNESS); Sunbelt Rentals, Inc. v. Gabriella Garlo, FA 1927104 (Forum Feb. 1, 2021) (finding <sunbeltrentals.careers> identical to SUNBELT RENTALS). The Panel finds the disputed domain name to be identical to a mark in which Complainant has rights.
Under the Policy, the Complainant must first make a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain name, and then the burden shifts to the Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Productions, Inc. v. Entertainment Commentaries, FA 741828 (Forum Aug. 18, 2006).
The disputed domain name incorporates Complainant's registered mark without authorization. Respondent does not appear to have made any active use of the domain name, nor to have engaged in preparations for such use, suggesting that Respondent lacks rights or legitimate interests in the domain name. See, e.g., Bunge Ltd., Bunge Asia Pte. Ltd, & Bunge SA v. Ismailov Iskandar, FA 1989818 (Forum May 2, 2022) (finding lack of rights or interests in similar circumstances).
Complainant has made a prima facie case that Respondent lacks rights and legitimate interests in the domain name, and Respondent has failed to come forward with any evidence of such rights or interests. Accordingly, the Panel finds that Complainant has sustained its burden of proving that Respondent lacks rights or legitimate interests in respect of the disputed domain name.
Finally, Complainant must show that the disputed domain name was registered and is being used in bad faith. Under paragraph 4(b)(i) of the Policy, bad faith may be shown by evidence that a domain name was acquired "primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of [Respondent's] documented out-of-pocket costs directly related to the domain name." Under paragraph 4(b)(iii), bad faith may be shown by evidence that Respondent registered the disputed domain name "primarily for the purpose of disrupting the business of a competitor." Under paragraph 4(b)(iv), bad faith may be shown by evidence that "by using the domain name, [Respondent] intentionally attempted to attract, for commercial gain, Internet users to [Respondent's] web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of [Respondent's] web site or location or of a product or service on [Respondent's] web site or location."
Respondent used a privacy registration service to register a domain name corresponding to Complainant's registered mark, and does not yet appear to have made any active use of the name. Respondent has not come forward with any explanation for the selection of the domain name or its intended use. Under the circumstances, the Panel considers it reasonable to infer that Respondent registered the domain name intending to use it in a manner calculated to create and exploit confusion with Complainant and its mark, perhaps by selling the domain name to Complainant or a competitor thereof or using it to support a fraudulent phishing scheme, and that Respondent is maintaining the domain name for that purpose. See, e.g., Bunge Ltd., Bunge Asia Pte. Ltd, & Bunge SA v. Ismailov Iskandar, supra (finding bad faith registration and use in similar circumstances); Coulter Ventures, LLC d/b/a Rogue Fitness v. Kay Bitzer / MindBody Online, supra (finding bad faith registration and use where sole apparent use of domain name corresponding to Complainant's mark was to redirect users to Complainant's website); see also Workit Health Incorporation v. Privacy service provided by Withheld for Privacy ehf/ Marisa Johnson, D2021-3996 (WIPO Jan. 17, 2022) (finding bad faith by same Respondent based upon use of domain name to deceive prospective employees of trademark owner); Garmin Switzerland GmbH v. Marisa Johnson / EverCommerce, FA 1945295 (Forum June 14, 2021) (finding bad faith by same Respondent based upon use of domain name to impersonate employee of complainant and phish for personal information). The Panel finds that the disputed domain name was registered and is being used in bad faith.
Having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <roguefitness.careers> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: June 21, 2022
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