CloudFlare, Inc. v. [Registrant]
Claim Number: FA1506001624251
Complainant is CloudFlare, Inc. (“Complainant”), California, USA. Respondent is [Registrant] (“Respondent”), Unknown Party Location.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <cloudflare.ro>, registered with Liveshells SRL.
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.
Kenneth L. Port as Panelist.
Complainant submitted a Complaint to the Forum electronically on June 12, 2015; the Forum received payment on June 12, 2015.
On June 26, 2015, Liveshells SRL confirmed by e-mail to the Forum that the <cloudflare.ro> domain name is registered with Liveshells SRL and that Respondent is the current registrant of the name. Liveshells SRL has verified that Respondent is bound by the Liveshells SRL 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 2, 2015, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 22, 2015 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@cloudflare.ro. Also on July 2, 2015, 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 Forum transmitted to the parties a Notification of Respondent Default.
On July 28, 2015, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Kenneth L. Port 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 name be transferred from Respondent to Complainant.
A. Complainant
Complainant claims rights in the CLOUDFLARE mark through registration of the mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 3,976,055, registered June 7, 2011). Respondent’s disputed <cloudflare.ro> is identical to Complainant’s CLOUDFLARE mark and merely adds the country-code top-level domain (“ccTLD”) “.ro” which is not a characteristic that is significant enough to differentiate the domain from the CLOUDFLARE mark.
Complainant also contends that Respondent lacks rights or legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name because no evidence on record indicates Respondent as commonly known by the disputed domain name. Further, Respondent’s use of the disputed domain name to display an error page which states, “We’re Sorry…The page or journal you are looking or cannot be found,” and which directs users to the website <no-hackers.ro>, a website that offers similar services to those of Complainant, is not a bona fide offering of goods or services or a legitimate noncommercial or fair use.
Respondent’s disputed domain name was registered and is being used in bad faith. Respondent’s bad faith is demonstrated through the use of an error page redirecting users to a website that offers services in competition with Complainant. Similarly, Respondent takes commercial advantage of confused internet users seeking Complainant’s legitimate products and services.
B. Respondent
Respondent failed to submit a Response in this proceeding. The disputed domain name was registered on October 27, 2013.
Pursuant to UDRP Rule 11(a), the Panel finds that persuasive evidence has been adduced by Complainant to suggest the likely possibility that the Respondent is conversant and proficient in the English language. After considering the circumstance of the present case, the Panel decides that the proceeding should be in English.
As the Respondent has failed to respond to these proceedings, the Panel shall make its determination based on the reasonable assertions of the Complainant. As such, the Panel finds that the disputed domain name is identical to the Complainant’s trademark, that the Respondent has no rights or legitimate interests in or to the disputed domain name, and that the Respondent has engaged in bad faith use and registration of the disputed domain name.
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.”).
There can be no real doubt that the disputed domain name is confusingly similar to the Complainant’s trademark because they are identical. Complainant claims to have rights in the CLOUDFLARE mark through registration of the mark with the USPTO (Reg. No. 3,976,055, registered June 7, 2011). Registration of a mark with a trademark agency, such as the USPTO, is sufficient to demonstrate a complainant’s rights in a mark under Policy ¶ 4(a)(i). Accordingly, Complainant’s rights in the CLOUDFLARE mark have been established.
Complainant also claims that Respondent’s disputed <cloudflare.ro> is identical or confusingly similar to the CLOUDFLARE mark. The only feature that differentiates Respondent’s domain from the CLOUDFLARE mark is the addition of the ccTLD “.ro.” The inclusion of a ccTLD does not alleviate the similarity between a mark and a disputed domain name as per Policy ¶ 4(a)(i).
As such, the Panel finds the disputed domain name identical and therefore confusingly similar to Complainant’s trademark.
Complainant argues that Respondent is not commonly known by the disputed domain name. To support this contention Complainant points to Respondent’s website which shows that Respondent does not offer any goods or services in connection with the disputed domain name or any other subdomains. See Compl., at Attached Annex, p. 3. Panels have held that a Respondent is not commonly known by a disputed domain name where there is a lack of available evidence indicating the opposite and the Respondent fails to counter the assertion. See Educ. Broad. Corp. v. DomainWorks Inc., FA 882172 (Nat. Arb. Forum Apr. 18, 2007) (concluding that the respondent was not commonly known by the <thirteen.com> domain name based on all evidence in the record, and the respondent did not counter this argument in its response).
Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).
Complainant also claims that Respondent’s use of the disputed domain name is not a bona fide offering of goods or services or a legitimate noncommercial or fair use of the disputed domain name. Respondent’s website displays the message, “We’re Sorry… The page or journal you are looking for cannot be found. Return to no-hackers.ro homepage.” See Compl., at Attached Annex, p. 3. Using a mark not owned by a respondent to redirect internet users to a competing website is not a bona fide offering of goods or services or a legitimate noncommercial or fair use of the disputed domain name.
Therefore, the Panel finds that Respondent’s use of the disputed domain does not constitute a bona fide offering of goods or services or a legitimate noncommercial or fair use of the disputed domain name under Policy ¶¶ 4(c)(i) and (iii) and therefore has no rights or legitimate interests in or to the domain name.
Complainant argues that Respondent’s bad faith is demonstrated through the use of an error page redirecting users to a website that offers services in competition with Complainant. See Compl., at Attached Annex, pp. 3-4. Panels have held that a respondent operating a website displaying links to a competitor disrupts the complainant’s business and is evidence of bad faith under Policy ¶ 4(b)(iii). See United Servs. Auto. Ass’n v. Savchenko, FA 1105728 (Nat. Arb. Forum Dec. 12, 2007) (“Respondent currently utilizes the disputed domain name, <usaa-insurance.net>, to resolve to a website featuring links to third-party competitors of Complainant. The Panel finds such use establishes Respondent registered and is using the disputed domain name in bad faith pursuant to Policy ¶ 4(b)(iii).”).
Accordingly, the Panel finds that Respondent linking to a competitor of Complainant demonstrates bad faith under Policy ¶ 4(b)(iii).
Similarly, Respondent takes commercial advantage of confused internet users seeking Complainant’s legitimate products and services. Again, Respondent is apparently using the disputed domain name to redirect users to the <no-hackers.ro> where users are presented with various webhosting and internet security services. See Compl., at Attached Annex, p. 4. Panels have held that a respondent’s use of a confusingly similar domain name to attract internet users for commercial gain constitutes bad faith. See G.D. Searle & Co. v. Celebrex Drugstore, FA 123933 (Nat. Arb. Forum Nov. 21, 2002) (finding that the respondent registered and used the domain name in bad faith pursuant to Policy ¶ 4(b)(iv) because the respondent was using the confusingly similar domain name to attract Internet users to its commercial website).
Accordingly, the Panel finds that Respondent is abusing the similarity between the disputed domain name and the CLOUDFLARE mark for commercial gain. As such, the Panel finds that Respondent has acted in bad faith pursuant to Policy ¶ 4(b)(iv).
The Panel does recognize that the Complainant failed to allege that the Respondent had actual or constructive notice of its prior trademark rights. However, given the totality of the circumstances, it is clear that the Respondent had actual notice of Complainant’s trademark rights or it would not have adopted the inherently distinctive “cloudflare” as its domain name.
Having established all three elements required under the ICANN Policy, as adopted by roTLD,, the Panel concludes that relief shall be granted.
Accordingly, it is Ordered that the <cloudflare.ro> domain name transferred from the Respondent to the Complainant.
Kenneth L. Port, Panelist
Dated: August 1, 2015
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