RingCentral, Inc. v. AUGUSTINE RIVERA / Web Pescados LLC
Claim Number: FA1405001562126
Complainant is RingCentral, Inc. (“Complainant”), represented by CitizenHawk, Inc., California, USA. Respondent is AUGUSTINE RIVERA / Web Pescados LLC (“Respondent”), Spain.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <rigncentral.com>, registered with GODADDY.COM, LLC.
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.
Paul M. DeCicco, as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on May 30, 2014; the National Arbitration Forum received payment on May 30, 2014.
On May 30, 2014, GODADDY.COM, LLC confirmed by e-mail to the National Arbitration Forum that the <rigncentral.com> domain name is registered with GODADDY.COM, LLC and that Respondent is the current registrant of the name. GODADDY.COM, LLC has verified that Respondent is bound by the GODADDY.COM, LLC 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 June 2, 2014, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 23, 2014 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 postmaster@rigncentral.com. Also on June 2, 2014, 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 registration as technical, administrative and billing contacts.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On June 26, 2014, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Paul M. DeCicco as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration 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 National Arbitration 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 contends as follows:
Complainant, RingCentral, Inc. offers virtual business phone systems to small and mid-sized business and has customers worldwide.
Complainant owns trademark registrations with the United States Patent and Trademark Office (“USPTO”) for the RINGCENTRAL mark (Reg. No. 945,395, registered October 2, 2007).
The disputed domain name is confusingly similar to Complainant’s mark.
Respondent has no rights or legitimate interests in respect of the disputed domain name. Respondent has not been commonly known by the disputed domain name. Respondent is using the disputed domain name to redirect unsuspecting Internet users to a website featuring generic links to third-party websites, some of which directly compete with Complainant’s business.
The domain name should be considered as having been registered and being used in bad faith. Respondent is a recalcitrant serial cyber squatter. Respondent’s advertised pay-per-click links displayed on the resolving websites promotes products that compete with Complainant. Respondent is using the disputed domain name to attract and mislead consumers for its own profit. Respondent’s typosquatting behavior is, in and of itself, evidence of bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has rights in the RINGCENTRAL mark through its registration of such mark with the USPTO.
Respondent is not affiliated with Complainant and had not been authorized to use Complainant’s trademark in any capacity.
Respondent registered the at‑issue domain name after Complainant acquired rights in its relevant trademarks.
Respondent uses the at-issue domain name to address to ultimately display pay-per-click links some of which are to products that compete with Complainant.
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(e), 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 and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
The at-issue domain name is confusingly similar to a trademark in which Complainant has rights.
Complainant has rights under Policy ¶ 4(a)(i) via its registration of the RINGCENTRAL mark with the USPTO. It is immaterial that Respondent may operate outside the jurisdiction of the trademark registrar. See Paisley Park Enters. v. Lawson, FA 384834 (Nat. Arb. Forum Feb. 1, 2005) (concluding that the complainant had established rights in the PAISLEY PARK mark under Policy ¶ 4(a)(i) through registration of the mark with the USPTO; see also, Williams-Sonoma, Inc. v. Fees, FA 937704 (Nat. Arb. Forum Apr. 25, 2007) (finding that it is irrelevant whether or not the complainant has registered its trademark in the country of the respondent’s residence).
In forming that at-issue domain name, Respondent transposes the letter “n” and “g” in Complainant’s RINGCENTRAL mark and then adds the necessary top level domain name, “.com,” thereto. Respondent’s transposition of letters in Complainant’s trademark does not distinguish the domain name from the mark under the Policy. Furthermore, it is well settled that the addition of a necessary top level domain name is irrelevant to Policy ¶4(a)(i) analysis. Therefore, the Panel concludes that Respondent’s <rigncentral.com> domain name is confusingly similar to Complainant’s RINGCENTRAL trademark. See Delta Corporate Identity, Inc. v. SearchTerms, FA 590678 (Nat. Arb. Forum Dec. 14, 2005) (concluding that the <dleta.com> domain name was confusingly similar to the complainant’s DELTA mark); see also Bank of Am. Corp. v. McCall, FA 135012 (Nat. Arb. Forum Dec. 31, 2002) (holding that attaching a gTLD is “unable to create a distinction capable of overcoming a finding of confusing similarity”).
Respondent lacks both rights and legitimate interests in respect of the at-issue domain name. Respondent is not authorized to use Complainant’s trademark in any capacity and, as discussed below, there are no Policy ¶4(c) circumstances from which the Panel might find that Respondent has rights or interests in respect of the domain name.
Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006). Since Respondent failed to respond and as discussed below there is no evidence supporting a finding pursuant to Policy 4(c) that Respondent has rights or interests in the at-issue domain name, Complainant’s prima facie showing acts conclusively.
WHOIS information for the at-issue domain name identifies the domain name’s registrant as “AUGUSTINE RIVERA / Web Pescados LLC.” Further, Respondent is not authorized to use Complainant’s trademarks and there is nothing in the record which tends to otherwise show that Respondent is known by the at-issue domain name. Therefore, the Panel concludes that Respondent is not commonly known by the at-issue domain name for the purposes of Policy ¶ 4(c)(ii). See Braun Corp. v. Loney, FA 699652 (Nat. Arb. Forum July 7, 2006) (concluding that the respondent was not commonly known by the disputed domain names where the WHOIS information, as well as all other information in the record, gave no indication that the respondent was commonly known by the disputed domain names, and the complainant had not authorized the respondent to register a domain name containing its registered mark).
Respondent uses the <rigncentral.com> domain name to direct unsuspecting Internet users to a website featuring generic links to third-party websites, some of which directly compete with Complainant’s business. Using the at-issue domain name to provide competing hyperlinks is neither a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See H-D Michigan Inc. v. Buell, FA 1106640 (Nat. Arb. Forum Jan. 2, 2008) (finding that, because the “[r]espondent’s disputed domain names resolve to a website featuring a series of advertising links to various third-parties, many of whom offer products and services in direct competition with those offered under [the complainant’s] mark,” the respondent is not using the disputed domain names for a bona fide offering of goods or services or a legitimate noncommercial or fair use).
Given the forgoing, Complainant satisfies its initial burden and shows Respondent’s lack of rights and lack of interests in respect of the at-issue domain name under Policy ¶4(a)(ii).
The at-issue domain name was registered and is being used in bad faith. As discussed below, Policy ¶ 4(b) bad faith circumstances, as well as other circumstances, are present from which the Panel concludes that Respondent acted in bad faith pursuant to paragraph 4(a)(iii) of the Policy.
Respondent has engaged in an ongoing pattern of cybersquatting. See FragranceNet.com, Inc. v. Denesh Kumar / Netmilo / Orel Hlasek LLC / Web Pescados Ltd / Vlad Obchikov / Balram Brahmin / Lidnick Webcorp Inc., FA 1467807 (Nat. Arb. Forum Dec. 6, 2012); Personalizationmall.com, Inc. v. Argosweb Corp / Crystal Image Pty Ltd / David Ghou / Denholm Borg / Elarson & Associates Pty Ltd / Lidnick Webcorp / Loshedina Inc / Luchichang Pty Ltd / Netmilo Pty Ltd / Orel Hlasek LLC / Vlad Obchikov / Volchar Pty Ltd / Web Pescados LLC / WuWeb Pty Ltd, FA 1464872 (Nat. Arb. Forum Nov. 12, 2012); U.S. Auto Parts Network, Inc. v. Alichec Inc. / Alex Ovechkin / Balram Brahmin / Belroots Pty Ltd / Chin-Hui Wu / David Ghou / Denesh Kumar / Denholm Borg / Domain Administrator / Elarson & Associates Pty Ltd / Liquid SEO Limited / Luchichang Pty Ltd / Marcelos Vainez / Loshedina Inc / Netmilo / Oleg Techino / Orel Hlasek LLC / Vlad Obchikov / Web Pescados LLC / Webatopia Marketing Limited / WuWeb Pty Ltd / ZincFusion Limited, FA 1487371 (Nat. Arb. Forum Apr. 17, 2013). Such past behavior suggests that Respondent has registered and is using the <rigncentral.com> domain name in bad faith pursuant to Policy ¶ 4(b)(ii) See Azar Int’l Inc. v. Texas Int’l Prop. Assocs., FA 1122600 (Nat. Arb. Forum Feb. 18, 2008) (finding that respondent’s forty-one prior UDRP rulings were evidence of bad faith registration under Policy ¶ 4(b)(ii)).
Additionally, Respondent’s use of the <rigncentral.com> domain name to offer competing links such as “RINGCENTRAL OFFICIAL SITE” and others diverts potential customers away from Complainant and to third-party websites. Using the confusingly similar domain name in this manner is disruptive to Complainant’s business and demonstrates that Respondent registered and is using the at-issue domain name in bad faith under Policy ¶ 4(b)(iii). See Compania Mexicana de Aviacion, S.A. de C.V. v. Bigfoot Ventures LLC, FA 1195961 (Nat. Arb. Forum July 14, 2008) (“Respondent’s disputed domain name resolves to a parking website which provides click through revenue to Respondent and which displays links to travel-related products and services that directly compete with Complainant’s business. Accordingly, Respondent’s competing use of the disputed domain name is additional evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iii).”). Moreover, Respondent’s use the confusingly similar domain name to direct Internet users to a website providing links to Complainant’s competitors via click-through links from which Respondent likely receives revenue demonstrates that Respondent has registered and is using the <rigncentral.com> domain name in bad faith pursuant to Policy ¶ 4(b)(iv). See Red Hat, Inc. v. Haecke, FA 726010 (Nat. Arb. Forum July 24, 2006) (finding that the respondent engaged in bad faith registration and use pursuant to Policy ¶ 4(b)(iv) by using the disputed domain names to operate a commercial search engine with links to the products of the complainant and to complainant’s competitors, as well as by diverting Internet users to several other domain names).
Finally as mentioned above, in forming the at-issue <rigncentral.com> domain name Respondent transposes the letters “g” and “n” in Complainant’s RINGCENTRAL mark. By doing so, Respondent hopes to improperly capitalize on typing errors made by Internet users who have inadvertently transpose the “g” and “n” in Complainant’s RINGCENTRAL trademark while attempting to reach Complainant either by entering the mistyped mark into a browser’s address bar as part of a “.com” domain name, or into a search field. Respondent’s typosquatting behavior is, in and of itself, evidence of Respondent’s bad faith registration and use of the <rigncentral.com> domain name. See Zone Labs, Inc. v. Zuccarini, FA 190613 (Nat. Arb. Forum Oct. 15, 2003), the panel concluded that “Respondent’s registration and use of [the <zonelarm.com> domain name] that capitalizes on the typographical error of an Internet user is considered typosquatting. Typosquatting, itself is evidence of bad faith registration and use pursuant to Policy ¶ 4(a)(iii).”
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <rigncentral.com> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: July 1, 2014
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