Duck Bites Holdings, LLC v. john kennedy
Claim Number: FA1403001550405
Complainant: Duck Bites Holdings, LLC of Phoenix, Arizona, United States of America.
Complainant Representative:
Complainant Representative: Jaburg & Wilk, P.C. of Phoenix, Arizona, United States of America.
Respondent: john kennedy of Simi valley, California, US.
Respondent Representative: «cFirstName» «cMiddle» «cLastName»
REGISTRIES and REGISTRARS
Registries: COMPANY Registry
Registrars: GoDaddy.com, LLC
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 Examiner in this proceeding.
Antonina Pakharenko-Anderson, as Examiner.
Complainant submitted: March 24, 2014
Commencement: March 25, 2014
Default Date: April 9, 2014
Having reviewed the communications records, the Examiner finds that the National Arbitration Forum has discharged its responsibility under URS Procedure Paragraphs 3 and 4 and Rule 4 of the Rules for the Uniform Rapid Suspension System (the "Rules") .
Complainant requests that the domain name be suspended for the life of the registration.
Clear and convincing evidence.
Procedural Findings:
This complaint and findings relate to the single domain <ripoffreport.company>. No multiple Complainants or Respondents are involved in this proceeding. No domain names are dismissed from this complaint.
Findings of Fact:
Complainant operates the website RipoffReport.com which is a very popular website whose Alexa rating is 855 in the United States and 3582 in the world. There are over 1.7 million posts on Ripoff Report. Ripoff Report is the registered trademark of Complainant; United States Patent & Trademark Office registration number 4360560 filed October 19, 2012 in connection with "Providing a web site featuring the ratings, reviews and recommendations on products and services for commercial purposes posted by users. According to the trademark registration data, the date of the first use of the mark in commerce is 1998/02/00.
Complainant contends that Respondent’s domain name <ripoffreport.company> incorporates Complainant’s trademark, and was registered and is being used in bad faith by the Respondent who registered and uses the domain name in bad faith.
Respondent is john kennedy of Simi valley, California, US. Respondent did not provide a response to the complaint in accordance with the URS rules of procedure.
Even though the Respondent has defaulted, URS Procedure 1.2.6, requires Complainant to make a prima facie case, proven by clear and convincing evidence, for each of the following three elements to obtain an order that a domain name should be suspended.
URS Procedure 1.2.6, requires Complainant to prove, by clear and convincing evidence, each of the following three elements to obtain an order that a domain name should be suspended.
Identical or confusingly similar (URS 1.2.6.1.)
The Examiner finds that the domain name <ripoffreport.company> fully incorporates the Complainant’s Ripoff Report mark. In addition, it is well accepted that the top level domain is irrelevant in assessing identity or confusing similarity, thus the “.company” is of no consequence here. The Examiner finds that the domain name <ripoffreport.company> is identical to the Complainant’s Ripoff Report mark under URS 1.2.6.1. (i).
No rights or legitimate interests
The Examiner determines that the Respondent is not commonly known by the Ripoff Report name as the WHOIS record for the <ripoffreport.company> domain name lists “john kennedy” as the domain name registrant.
It is contemplated from the Complaint that Respondent has no connection or affiliation with Complainant and has not received any license or consent, express or implied, to use Complainant’s Ripoff Report mark in a domain name or otherwise.
The domain name points to a webpage listing links which Respondent appears to use to generate click through fees for Respondent’s personal financial gain. The use of a domain name to PPC links does not of itself confer rights or legitimate interests arising from a "bona fide offering of goods or services" or from "legitimate noncommercial or fair use" of the domain name.
Factoring that the Respondent defaulted to assert defenses to the Complaint to demonstrate his rights or legitimate interest in the domain name, the Examiner finds that the Respondent has not established any rights or legitimate interests in the domain name <ripoffreport.company> under URS 1.2.6.2.
Bad faith registration and use
The domain name <ripoffreport.company> was registered and is being used in bad faith.
The Complainant submits that the Respondent is using the domain name <ripoffreport.company> in bad faith as the Registrant's use of <ripoffreport.company> would almost certainly cause users to believe there is an affiliation or sponsorship with Complainant.
The Examiner further determines that by providing “payperclick” links to other third party sites to generate “payperclick” revenue from internet traffic that visits a webpage to which a domain name <ripoffreport.company> resolves the Respondent has intentionally attempted to attract for commercial gain Internet users to Registrant’s web site, by creating the likelihood of confusion with the complainant’s mark as to the source, sponsorship or affiliation taking due note of the fact that the Complainant’s Ripoff Report mark has been in use over the Internet since 1998 and the Complainant’s domain name <ripoffreport.com> resolves to the popular website.
At the same time, the Examiner also finds that the fact that the website has an option of purchasing the website may be also considered to be the indicator of bad faith.
Based on the above cumulative circumstances the Examiner finds such behavior to evidence Respondent’s bad faith registration and use under URS 1.2.6.3.
The Examiner finds that the complaint was neither abusive nor contained material falsehoods.
After reviewing the Complainant’s submissions, the Examiner determines that
the Complainant has demonstrated all three elements of the URS by a standard of clear and convincing evidence; the Examiner hereby Orders the following domain names be SUSPENDED for the duration of the registration.
<ripoffreport.company>
Antonina Pakharenko-Anderson, Examiner
Dated: April 09, 2014
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