Quilogy, Inc. v. Rodney Ruddick
Claim Number: FA0211000134653
PARTIES
Complainant
is Quilogy, Inc., Charles, MO
(“Complainant”) represented by Rick D.
Massey, of Quilogy, Inc. Respondent is Rodney Ruddick, Memphis, TN (“Respondent”).
REGISTRAR AND DISPUTED DOMAIN NAME
The
domain name at issue is <quilogysucks.com>,
registered with Go Daddy Software, Inc.
PANEL
The
undersigned certifies that she has acted independently and impartially and to
the best of her knowledge has no known conflict in serving as Panelist in this
proceeding.
Sandra
Franklin as Panelist.
PROCEDURAL HISTORY
Complainant
submitted a Complaint to the National Arbitration Forum (the “Forum”)
electronically on November 22, 2002; the Forum received a hard copy of the
Complaint on November 26, 2002.
On
November 22, 2002, Go Daddy Software, Inc. confirmed by e-mail to the Forum
that the domain name <quilogysucks.com>
is registered with Go Daddy Software, Inc. and that Respondent is the current
registrant of the name. Go Daddy
Software, Inc. has verified that Respondent is bound by the Go Daddy Software,
Inc. registration agreement and has thereby agreed to resolve domain-name
disputes brought by third parties in accordance with ICANN’s Uniform Domain
Name Dispute Resolution Policy (the “Policy”).
On
December 5, 2002, a Notification of Complaint and Commencement of
Administrative Proceeding (the “Commencement Notification”), setting a deadline
of December 26, 2002 by which Respondent could file a Response to the
Complaint, was transmitted to Respondent via e-mail, post and fax, to all
entities and persons listed on Respondent’s registration as technical,
administrative and billing contacts, and to postmaster@quilogysucks.com by
e-mail.
Having
received no Response from Respondent, using the same contact details and
methods as were used for the Commencement Notification, the Forum transmitted
to the parties a Notification of Respondent Default.
On
January 6, 2003, pursuant to Complainant’s request to have the dispute decided
by a single-member Panel, the Forum appointed Sandra Franklin 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.” 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.
RELIEF SOUGHT
Complainant
requests that the domain name be transferred from Respondent to Complainant.
PARTIES’ CONTENTIONS
A.
Complainant
The
<quilogysucks.com> domain name
is confusingly similar to Complainant's QUILOGY mark.
Respondent
has no rights or legitimate interests in the disputed domain name.
Respondent
registered and used the disputed domain name in bad faith.
B.
Respondent
Respondent
failed to submit a Response.
FINDINGS
Complainant holds a registered service
mark for QUILOGY listed on the Principal Register of the United States Patent
and Trademark Office (“USPTO”) as Registration Number 2,583,690. Complainant uses the service mark in
relation to business management consultation for database management,
information technology and e-commerce.
Respondent registered the disputed domain
name on October 30, 2001. Respondent is
a former employee of Complainant.
Respondent has not developed a website at <quilogysucks.com>. Respondent does not have permission from
Complainant to use its QUILOGY mark.
DISCUSSION
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.”
In view
of Respondent's failure to submit a Response, the Panel shall decide this
administrative proceeding on the basis of the Complainant's undisputed
representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules and
draw such inferences it considers appropriate pursuant to paragraph 14(b) of
the Rules.
Paragraph
4(a) of the Policy requires that the 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.
Identical and/or Confusingly Similar
Complainant has established that it
has rights in the QUILOGY mark through registration on the Principal Register
of the USPTO.
Respondent’s <quilogysucks.com>
domain name is confusingly similar to Complainant’s mark because it
incorporates Complainant’s entire mark and merely adds the slang term
“sucks.” The addition of the term
“sucks,” despite its derogatory nature to English speakers, does not create a
distinct feature because the Internet is an international medium and any
non-English speaking Internet user will not recognize the derogatory meaning of
the English slang term. Therefore, the
disputed domain name does not overcome a claim of confusing similarity pursuant
to Policy ¶ 4(a)(i). See Vivendi
Universal v. Sallen, D2001-1121 (WIPO Nov. 7, 2001) (finding the
domain name <vivendiuniversalsucks.com> was confusingly similar to
Complainant's VIVENDI UNIVERSAL mark, because non-English speakers would
associate the domain name with the owner of the trademark); see also ADT Services AG v. ADT Sucks.com, D2001-0213 (WIPO
Apr. 23, 2001) (exploring the difference of opinion among Panels on
"sucks" domain name disputes and concluding that use of the
"sucks" suffix does not defeat Complainant's confusing similarity argument).
The Panel finds
that Policy ¶ 4(a)(i) has been satisfied.
Rights or Legitimate Interests
Respondent has failed to respond,
therefore it is assumed that Respondent lacks rights and legitimate interests
in the disputed domain name. When
Complainant asserts a prima facie case against Respondent, the burden of
proof shifts to Respondent to show that it has rights or legitimate interests
pursuant to Policy ¶ 4(a)(ii). See
Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (finding
that once Complainant asserts that Respondent has no rights or legitimate
interests in respect of the domain, the burden shifts to Respondent to provide
credible evidence that substantiates its claim of rights and legitimate
interests in the domain name); see also Parfums Christian Dior v. QTR Corp., D2000-0023 (WIPO Mar. 9, 2000)
(finding that by not submitting a Response, Respondent has failed to invoke any
circumstance which could demonstrate any rights or legitimate interests in the
domain name).
Furthermore, because Respondent has not
submitted a Response, it is appropriate for the Panel to accept all reasonable
allegations and inferences in the Complaint as true. See Vertical
Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum
July 31, 2000) (failure to respond allows all reasonable inferences of fact in
the allegations of Complainant to be deemed true); see also Charles Jourdan Holding AG v. AAIM,
D2000-0403 (WIPO June 27, 2000) (finding it appropriate for the Panel to draw
adverse inferences from Respondent’s failure to reply to the Complaint).
Respondent registered the disputed domain
name in October of 2001 and has yet to develop a website. This behavior constitutes passive holding
and does not give rise to rights or legitimate interests pursuant to Policy ¶
4(a)(ii). See Am. Home Prod. Corp. v. Malgioglio,
D2000-1602 (WIPO Feb. 19, 2001) (finding no rights or legitimate interests in
the domain name <solgarvitamins.com> where Respondent merely passively
held the domain name); see also Bloomberg
L.P. v. Sandhu, FA 96261 (Nat. Arb. Forum Feb. 12, 2001) (finding that no
rights or legitimate interest can be found when Respondent fails to use
disputed domain names in any way).
Furthermore, Respondent is a former
employee of Complainant. Respondent
registered the disputed domain name after leaving his employment with
Complainant and Complainant sued him for breach of contract. Based on these facts, it can be inferred
that Respondent has no rights or legitimate interests in the disputed domain
name pursuant to Policy ¶ 4(a)(ii). See
Vinidex Pty. Ltd. v.
Auinger, AF-0402 (eResolution Oct. 18, 2000) (finding that as a former employee, Respondent knew or should
have known Complainant’s mark was in use as an integral part of the corporate
name and as a trademark…Respondent understood the legitimate interests and
rights of Complainant and, by contrast, its own lack of interest or right…this
is sufficient for Complainant to establish that Respondent had no rights or
interest in the domain name).
The Panel finds that Policy ¶ 4(a)(ii)
has been satisfied.
Registration and Use in Bad Faith
Policy paragraph 4(b) lists four
situations that give rise to evidence of bad faith. These four situations are not meant to be exclusive. The Policy contemplates that the Panel may
look to the totality of circumstances to establish bad faith. See Digi Int’l v. DDI Sys., FA 124506
(Nat. Arb. Forum Oct. 24, 2002) (determining that Policy paragraph 4(b) sets
forth certain circumstances, without limitation, that shall be evidence of
registration and use of a domain name in bad faith); see also CBS Broad., Inc. v. LA-Twilight-Zone,
D2000-0397 (WIPO June 19, 2000) (“[T]he Policy expressly recognizes that other
circumstances can be evidence that a domain name was registered and is being
used in bad faith”).
Respondent, as a former employee of
Complainant, had actual knowledge of Complainant’s rights in the QUILOGY mark
when it registered the disputed domain name.
Therefore, Respondent’s registration of the <quilogysucks.com>
domain name is evidence of bad faith registration pursuant to Policy ¶
4(a)(iii). See Savino
Del Bene Inc. v. Gennari,
D2000-1133 (WIPO Dec. 12, 2000) (finding "Respondent's registration of the
company name of his former employer as a domain name is an act of bad
faith"); see also Samsonite
Corp. v. Colony Holding, FA 94313 (Nat. Arb. Forum Apr. 17, 2000) (finding
that evidence of bad faith includes actual or constructive knowledge of a
commonly known mark at the time of registration).
Moreover, Respondent has held the disputed
domain name for over a year and has failed to use it for any purpose. This is passive holding and evidence of bad
faith use pursuant to Policy ¶ 4(a)(iii).
See Clerical Med. Inv.
Group Ltd. v. Clericalmedical.com, D2000-1228 (WIPO Nov. 28, 2000) (finding
that merely holding an infringing domain name without active use can constitute
use in bad faith); see also Caravan
Club v. Mrgsale, FA 95314 (Nat. Arb. Forum Aug. 30, 2000) (finding that
Respondent made no use of the domain name or website that connects with the
domain name, and that passive holding of a domain name permits an inference of
registration and use in bad faith).
The Panel finds that Policy ¶ 4(a)(iii)
has been satisfied.
DECISION
Having established all three elements
required under the ICANN Policy, the Panel concludes that the requested relief
shall be hereby GRANTED.
Accordingly, it is Ordered that the
domain name <quilogysucks.com>
TRANSFERRED from Respondent
to Complainant.
Sandra Franklin, Panelist
Dated: January 9, 2003
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