Gryphon Internet, LLC v. thank you corp. / Jon Shakur
Claim Number: FA1108001405610
Complainant is Gryphon Internet, LLC (“Complainant”), represented by Steven L. Rinehart, Utah, USA. Respondent is thank you corp. / Jon Shakur (“Respondent”), Louisiana, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <petpeoplesplace.com> ("the Domain Name"), registered with Direct Internet Solutions Pvt. Ltd d/b/a PublicDomainRegistry.com.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
<<Dawn Osborne of Palmer Biggs Legal>> as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on August 31, 2011; the National Arbitration Forum received payment on August 31, 2011.
On September 1, 2011, Direct Internet Solutions Pvt. Ltd d/b/a PublicDomainRegistry.com confirmed by e-mail to the National Arbitration Forum that the <petpeoplesplace.com> domain name is registered with Direct Internet Solutions Pvt. Ltd d/b/a PublicDomainRegistry.com and that Respondent is the current registrant of the name. Direct Internet Solutions Pvt. Ltd d/b/a PublicDomainRegistry.com has verified that Respondent is bound by the Direct Internet Solutions Pvt. Ltd d/b/a PublicDomainRegistry.com 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 September 2, 2011, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 22, 2011 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 firstname.lastname@example.org. Also on September 2, 2011, 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.
A timely Response was received and determined to be complete on September 22, 2011.
Some additional e-mails were received by the National Arbitration Forum from both parties after the Response was filed, but they were not formally additional submissions. In one of these e-mails the Respondent pointed out the statistics for web traffic would die within 30 days if the Domain name was redirected to adult content.
On 23 September 2011, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Dawn Osborne of Palmer Biggs Legal as Panelist.
Complainant requests that the domain name be transferred from Respondent to Complainant.
The Complainant's contentions can be summarised as follows:
The Complainant purchased the Domain Name and its accompanying pet supplies and pet information services website active since the year 2004 with its trading goodwill for a substantial sum and offers its goods and services in the U.S. and across the world. It has advertised aggressively on the Internet and has become well known across the world receiving 1.7 million unique visitors in 2011. As such the Complainant has common law rights to its PET PEOPLES PLACE mark.
On August 28, 2011 a hacker broke into the Complainant's registration account and fraudulently transferred the Domain Name to its current registrar in India taking over the e-mail and administrative functions relating to the site attached to the Domain Name. The Complainant reported the matter to the police immediately. The Domain Name has now been transferred to the Respondent with an invalid address in California, United States. On August 30 and subsequently the Respondent attempted to extort payment from the Complainant by offering to sell or rent the Domain Name to the Complainant and threatening to change the domain name server if the Complainant did not comply.
Confusing similarity between the Complainant's common law mark and the Domain Name is self manifest.
The Respondent has no right or legitimate interest to the Domain Name as it was stolen from the Complainant. The Respondent is not commonly known by the Domain Name, has not carried out any legitimate business, merely keeping the Domain Name pointed at the Complainant's site. The Complainant has not given any kind of consent to the Respondent to use its trade mark or Domain Name.
The Respondent registered the name to extort money from the Complainant and to confuse the Complainant's customers to drive traffic intended for the Complainant from a site it now controls, steal customers' details and deprive the Complainant of the use of its mark and the Domain Name. The Domain Name has been registered and used in bad faith by the Respondent.
The Respondent does not have English as a first language and asked if submissions could be given in Russian. His contentions can be summarised as follows:
The Respondent bought the name from the Complainant and now they want it back.
The Domain Name has nothing to do with gryphons or mythical animals, but is a pet site for sick animals and the Respondent wants to write about rare species animals and Greenpeace and use it for a free web site for anyone who loves animals in order to help animals. He does not allege he has used the site yet.
The Complainant sent to itself the e-mail asking for money alleged to have been sent by the Respondent. The Respondent did not send the e-mails asking for money.
The Respondent requests a finding of domain name hijacking.
The Panelist finds that there is evidence by way of documents that the Complainant operated the web site at the Domain Name and purchased both the Domain Name and the site from the original registrant of the name and operated it highly successfully under the PET PEOPLES PLACE name until August 2011. There is also evidence by way of documents that the site suffered an attack and the theft of the Domain Name was reported to the Police by the Complainant. There is no evidence by way of documents that the Respondent purchased the Domain Name from the Complainant. The Respondent wrote an e-mail to the National Arbitration Forum "and your domain stats will die in 30 days if I redirect it to the adult content. Think first, then do".
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.
The Complainant has produced dated evidence of extensive use of the PETS PEOPLES PLACE mark and shown it was a thriving internet business until August 2011. As such it has shown that it has common law rights in the mark. The Domain Name consists of the Complainants PET PEOPLES PLACE mark (and top level designation ".com" which is ignored for the purposes of the Policy). As such the Domain Name is confusingly similar to a trade mark in which the Complainant has rights for the purpose of the Policy.
Paragraph 4 (b) of the Rules sets out non-exclusive criteria which shall be evidence of the registration and use of a domain name in bad faith including circumstances where the Respondent has registered or acquired the Domain Name primarily for the purpose of selling, renting or otherwise transferring the disputed domain name to the Complainant the owner of the trade mark in question for valuable consideration in excess of documented out of pocket costs. The Respondent has not produced any evidence that it has paid any sum for the Domain Name and yet the Complainant has produced evidence by way of documents that the Domain Name was stolen. The Respondent denies that it sent the e-mails to the Complainant requesting money for the Domain Name, but the Respondent clearly threatened to point the domain name to adult content to cause damage to the business on the site suggesting it did not believe itself to be the rightful owner of that business by way of an e-mail to the National Arbitration Forum. The Respondent admits it owns the e-mail address that sent that e-mail. The e-mail is threatening and is clearly intended to portray that if the Respondent does not get his own way the business operated at the site will be damaged with the clear implication that the Respondent did not believe he really owned or was entitled to that business or site connected to the Domain Name or would suffer by any damage to it. As such it has the language of extortion. Based on this evidence alone the Panelist is able to decide that the Respondent has acquired the Domain Name and used it in bad faith.
In Worldcom Exch., Inc v. Wei.com, Inc., D2004-0955 (WIPO Jan. 5, 2005), the panel found that Respondent likely gained control or was given control of the disputed domain name that Complainant had been using for its commercial website for years through fraudulent means, and was depriving Complainant of access to its own domain name. Therefore, the panel determined that respondent registered or acquired the domain name in bad faith, while it subsequently used the domain name in bad faith as well.
Accordingly, the Panel finds that the Domain Name has been registered and used in bad faith.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <petpeoplesplace.com> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: October 11, 2011
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