TechSmith Corporation v. Polyakov Andrey
Claim Number: FA2206002002722
Complainant is TechSmith Corporation (“Complainant”), represented by James R. Duby of DUBY LAW FIRM, Michigan, USA. Respondent is Polyakov Andrey (“Respondent”), Ukraine.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <camtasia-app.com>, <camtasiaapp.com>, <camtasiapc.com>, <camtasia-free.com>, <snagitpc.com>, <snagit-app.com>, <snagit-2021.com>, <snagit2021app.com>, <snagitapp.net>, <snagitpc.net>, <snagit-free.com>, <snagitfreeapp.com>, <snagit-app.net> and<snagitpc.org> (the “Domain Names”), registered with NameCheap, Inc..
PANEL
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.
Alan L. Limbury, as Panelist.
Complainant submitted a Complaint to the Forum electronically on June 30, 2022. The Forum received payment on June 30, 2022.
On June 30, 2022, NameCheap, Inc. confirmed by e-mail to the Forum that the Domain Names are registered with NameCheap, Inc. and that Respondent is the current registrant of the names. 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 July 5, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 25, 2022 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registrations as technical, administrative, and billing contacts, and to postmaster@camtasia-app.com, postmaster@camtasiaapp.com, postmaster@camtasiapc.com, postmaster@camtasia-free.com, postmaster@snagitpc.com, postmaster@snagit-app.com, postmaster@snagit-2021.com, postmaster@snagit2021app.com, postmaster@snagitapp.net, postmaster@snagitpc.net, postmaster@snagit-free.com, postmaster@snagitfreeapp.com, postmaster@snagit-app.net and postmaster@snagitpc.org. Also on July 5, 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 registrations as technical, administrative and billing contacts.
Having received no response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.
On August 1, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Alan L. Limbury 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 Names be transferred from Respondent to Complainant.
A. Complainant
Complainant is a Michigan-based software development company with users in over 190 countries. Complainant has rights in the CAMTASIA and SNAGIT marks through registrations in several countries, including with the United States Patent and Trademark Office (“USPTO”). Each of the Domain Names is confusingly similar to one of Complainant’s marks.
Respondent lacks rights or legitimate interests in the Domain Names. Respondent is not commonly known by the Domain Names, nor has Complainant authorized Respondent to use the CAMTASIA or SNAGIT marks in any way. Additionally, Respondent fails to use the Domain Names in connection with a bona fide offering of goods or services or for a legitimate noncommercial or fair use. Instead, Respondent uses the Domain Names to pass himself off as Complainant to offer competing products and counterfeits of goods marketed by Complainant.
Respondent registered the Domain Names in bad faith with actual knowledge of Complainant’s rights in the SNAGIT and CAMTASIA marks and uses them in bad faith to attempt to disrupt Complainant’s business and to benefit commercially by offering competing, counterfeit products.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has established all the elements entitling it to relief.
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”).
Complainant has shown that it has rights in the CAMTASIA and SNAGIT marks through registrations in several countries, including with the USPTO (e.g., SNAGIT, Reg. No. 2,104,800 registered October 14, 1997 and CAMTASIA, Reg. No. 2,488,689 registered September 11, 2001).
The Panel finds each of the Domain Names to be confusingly similar to one of Complainant’s registered marks because each incorporates fully one of the marks and differs only through the addition of descriptive words and/or numerals, which are insufficient to distinguish the Domain Names from the marks, and an inconsequential generic top-level domain (“gTLD”), which may be ignored.
Complainant has established this element.
(i) before any notice to Respondent of the dispute, the use by Respondent of, or demonstrable preparations to use, the Domain Names or names corresponding to the Domain Names in connection with a bona fide offering of goods or services; or
(ii) Respondent (as an individual, business or other organization) has been commonly known by the Domain Names, even if Respondent has acquired no trademark or service mark rights; or
(iii) Respondent is making a legitimate noncommercial or fair use of the Domain Names, without intent for commercial gain to misleadingly divert customers or to tarnish the trademark or service mark at issue.
The Domain Names were registered as follows:
<snagitpc.com> and <snagit-app.com> on November 5, 2021;
<camtasia-app.com> and <camtasiapc.com> on December 17, 2021;
<snagit-2021.com>, <snagit2021app.com> and <snagitapp.net> on March 1, 2022;
<snagit-free.com> on March 31, 2022;
<snagitpc.net> on April 4, 2022;
<snagit-app.net> on May 11, 2022;
<snagitfreeapp.com> on May 12, 2022;
<snagitpc.org> on May 13, 2022;
<camtasia-free.com> on May 24, 2022; and
<camtasiaapp.com> on May 27, 2022, in each case many years after Complainant has shown that its CAMTASIA and SNAGIT marks had become well-known throughout the world. They resolve to websites which prominently display Complainant’s CAMTASIA and SNAGIT marks and offer for sale or for free installations of unauthorized copies/downloads/installs of Complainant’s computer programs.
These circumstances, together with Complainant’s assertions, are sufficient to constitute a prima facie showing of absence of rights or legitimate interests in respect of the Domain Names on the part of Respondent. The evidentiary burden therefore shifts to Respondent to show that it does have rights or legitimate interests in the Domain Names. See Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014). Respondent has made no attempt to do so.
The Panel finds that Respondent has no rights or legitimate interests in respect of the Domain Names.
Complainant has established this element.
Registration and Use in Bad Faith
Paragraph 4(b) of the Policy sets out four illustrative circumstances, which, though not exclusive, shall be evidence of the registration and use of the Domain Names in bad faith for purposes of paragraph 4(a)(iii) of the Policy, including:
(iv) by using the Domain Names, Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website or other on-line location, by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website or location or of a product or service on its website or location.
The circumstances set out above in relation to the second element satisfy the Panel that Respondent was fully aware of Complainant’s well-known CAMTASIA and SNAGIT marks when Respondent registered the Domain Names and that Respondent has intentionally attempted to attract, for commercial gain, Internet users to Respondent’s websites, by creating a likelihood of confusion with Complainant’s marks as to the source of Respondent’s websites and of the goods and services promoted on those websites. This demonstrates registration and use in bad faith to attract users for commercial gain under Policy ¶ 4(b)(iv).
Complainant has established this element.
DECISION
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 <camtasia-app.com>, <camtasiaapp.com>, <camtasiapc.com>, <camtasia-free.com>, <snagitpc.com>, <snagit-app.com>, <snagit-2021.com>, <snagit2021app.com>, <snagitapp.net>, <snagitpc.net>, <snagit-free.com>, <snagitfreeapp.com>, <snagit-app.net> and <snagitpc.org> Domain Names be TRANSFERRED from Respondent to Complainant.
Alan L. Limbury, Panelist
Dated: August 2, 2022
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