MSI Holdings, LLC v. Biohistory Research
Claim Number: FA1506001626625
Complainant is MSI Holdings, LLC (“Complainant”), represented by Michael R. Gilman of Pergament Gilman & Cepeda LLP, New Jersey, USA. Respondent is Biohistory Research (“Respondent”), New York, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <affairspex.net>, registered with Register.com, Inc.
The undersigned certifies he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.
Houston Putnam Lowry, Chartered Arbitrator, as Panelist.
Complainant submitted a Complaint to the Forum electronically on June 30, 2015; the Forum received payment on June 30, 2015.
On June 30, 2015, Register.com, Inc. confirmed by e-mail to the Forum that the <affairspex.net> domain name is registered with Register.com, Inc. and that Respondent is the current registrant of the name. Register.com, Inc. has verified that Respondent is bound by the Register.com, Inc. 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 1, 2015, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 21, 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@affairspex.net. Also on July 1, 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 27, 2015, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Houston Putnam Lowry, Chartered Arbitrator, 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 is the owner of United States Trademark Registration No. 1,312,902 for the mark SPEX, registered on January 8, 1985 and claiming a first use in commerce of January 1, 1954, for the goods “Inorganic Chemicals and Chemical Standards for General Industrial and Laboratory Use” in Class 1, and for “Measuring and Scientific Instruments-Namely, Spectrometers and Parts Therefor, Spectrographs, Spectrophotometers, Phosphorimeters, Colorimeters, Monochromators, Spectrofluorometers and Parts Therefor, Controllers and Parts Therefor, and Microprocessor Data-Processors for Spectrometric Instrumentation; Laboratory Equipment-Namely, Presses and Grinders for Preparing Materials for Spectrometric Analysis” in Class 9. Accordingly, notice of Complainant’s rights in the SPEX name has been available since the filing date of the corresponding application that issued as the subject registration, i.e., January 20, 1984.
Complainant is also the owner of the following foreign registrations for the mark SPEX:
· SPEX – OHIM CTM No. 009709486, registered on July 12, 2011 (filed on February 3, 2011);
· SPEX – OHIM CTM No. 009709502, registered on July 14, 2011 (filed on February 3, 2011);
· SPEX – France Reg. No. 1,639,674, registered on January 18, 1991;
· SPEX – Indian Reg. No. 1,425,575, having an application date of January 3, 2006;
· SPEX – Taiwan Reg. No. 00873320, registered on November 1, 1999 (filed on March 20, 1996);
· SPEX – Korean Reg. Nos. 40-0363215 (earliest app. date of July 29, 1995) and 40-0383884 (earliest application date of July 29, 1995); and
· SPEX – Japanese Reg. Nos. 4717925, registered on October 10, 2003 (app. date December 22, 2000 – priority to March 19, 1998) and 4448953, registered on January 26, 2001 (app. date of March 19, 1998).
These registrations altogether secure for Complainant its worldwide rights for chemicals and chemical standards in Class 1 and laboratory and testing instruments and equipment in Class 9 under the SPEX mark. One or more of these registrations also secure for Complainant rights for chemicals for analytical, testing and diagnostic purposes in Class 5; and for repair or maintenance of machines and apparatuses related to chemical processing, medical, measuring and testing, measuring and analysis, laboratories and other industrial fields in Class 37 (see JP Reg. No. 4448953).
FACTUAL AND LEGAL GROUNDS – UDRP Rule 3(b)(ix).
Complainant respectfully requests that the Panel decide this complaint on the basis of the statements and documents submitted in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable in accordance with Paragraph 15(a) of the Rules.
In the event that Respondent fails to submit a response, Complainant respectfully requests that the Panel decide this proceeding on the basis of Complainant’s undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules and shall draw such inferences as the Panel considers appropriate pursuant to paragraph 14(b) of the Rules. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that 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.”).
[a.] THE SUBJECT DOMAIN IS CONFUSINGLY SIMILAR TO COMPLAINANT’S SPEX MARK– UDRP R. 3(b)(ix)(1); UDRP P. ¶4(a)(i).
Complainant, MSI Holdings, LLC, and its SPEX brand have become famous. Complainant sells its products globally under its famous SPEX mark through its licensees and related companies, SPEX SamplePrep, LLC and SPEX CertiPrep Group, LLC and these licensees’ wholly owned subsidiaries, and their use of Complainant’s SPEX mark, and any goodwill generated therewith, inures completely to the benefit of Complainant. SPEX SamplePrep, LLC was founded in 1954 to provide superior sample preparation equipment and supplies for spectroscopists. SPEX SamplePrep equipment is used to prepare samples for a wide range of analytical technologies including XRF, AA, and ICP. Much of Complainant’s sample preparation equipment is also used for cutting-edge research in pharmaceuticals, superconductors, polymers and genetics. Complainant’s products have become the industry standard for reliability and durability in the laboratory being used in such landmark studies from the moon rocks returned by NASA to the remains of Czar Nicholas II and his family.
SPEX SamplePrep LLC has been solving unique sample preparation problems for over 60 years. Complainant’s commitment to innovation, accuracy, safety, durability and versatility is what truly sets it apart from the competition. As a superior supplier of sample preparation equipment and supplies, Complainant is recognized as having the world’s most effective laboratory mills, grinders and presses. Additional information on Complainant’s SPEX brand and Spex SamplePrep is provided at http://www.spexsampleprep.com/.
SPEX CertiPrep Group, LLC was founded in 1954 to provide superior certified reference materials and sample preparation equipment for analytical spectroscopy. Since then, Complainant has gained the experience, skills, and specialized training to serve analytical scientists throughout the world. SPEX CertiPrep offers an unparalleled selection of inorganic standards for AA, ICP, ICP/MS and IC, organic standards for GC and GC/MS. Complainant also is able to manufacture customized orders to meet customers’ specific requirements.
Complainant, through its predecessor, related SPEX SamplePrep and CertiPrep companies, has made heavy expenditures in advertising and marketing its SPEX mark, which have helped result in significant worldwide sales and fame of the SPEX mark. These efforts have resulted in approximately $600 Million in sales worldwide of products bearing the SPEX name. Further, Complainant has spent over $17 Million in advertising and marketing with respect to the SPEX mark from 1997 to 2014, and an estimated total of over $31 Million in advertising and marketing of the SPEX mark since 1975.
Complainant, through its predecessor, related SPEX SamplePrep and CertiPrep companies, has also been a supplier of industry news and information dating back to the 1950’s, via its SPEX Newsletter (see www.SPEXSpeaker.com), and now via, at least, its own YouTube channel (see https://www.youtube.com/user/SPEXCertiPrep). This further evidences Complainant’s extensive commercial history and continuous and highly publicized business activities under its valuable, famous SPEX mark. In view of the above, Complainant and its SPEX mark have achieved considerable worldwide recognition, including, but not limited to, in North America and in the European Union.
While it is unnecessary to own a registration where Respondent resides, Complainant owns the above-mentioned numerous SPEX registrations around the world, including, in the United States where Respondent is located. See AutoZone Parts, Inc. et al. v. Shu Lin c/o Shu Lin Co aka Host Master c/o Transure Enterprise Ltd., FA 1330042 (NAF Aug. 3, 2010) (finding that registering a mark with the U.S. PTO establishes Complainant’s rights in the mark even when Respondent lives or operates in a country where the mark is not registered); Renaissance Hotel Holdings, Inc. v. Renaissance Cochin, FA 932344 (NAF Apr. 23, 2007) (holding it does not matter whether the Complainant had registered its mark in the country in which the respondent resides, only that it can establish rights in some jurisdiction). Even so, “the fact that [Complainant] has trademark rights in the country where Respondent operates is noteworthy.” MSI Holdings, LLC v. GBHost (Pushpendra Jaimini)/Pushpendra Jaimini, FA 1495040 (NAF June 13, 2013).
Complainant is also the registrant of a significant number of domains featuring their famous SPEX mark. Some of these domains, previously registered by a different entity, were obtained by Complainant through Complainant’s enforcement of its rights in its famous SPEX mark. Some of these disputes resolved themselves via voluntary transfer of the domain to Complainant, while others were transferred after a successful UDRP proceeding granting transfer to Complainant. The transferred domains include, among others, spexfix.com, sellspex.com, buyspex.com, spex-ray.com, spexspex.com, spexmachinery.com and spexmachine.com. The successful UDRP Decisions include MSI Holdings, LLC v. Seth Ward, FA1503001611872 (NAF May 10, 2015); MSI Holdings LLC v. GBHost (Pushpendra Jaimini)/Pushpendra Jaimini, FA 1495040 (NAF June 13, 2013); MSI Holdings, LLC v. Kobhi N/SpexFix, FA 16000007 (NAF Feb. 13, 2015); and MSI Holdings LLC v. Nova Giragossian, FA 1547275 (NAF April 28, 2014).
Complainant’s rights in its SPEX mark, and Respondent’s actual and/or constructive notice of Complainant’s SPEX mark, easily predate the creation date of the subject domain name, i.e., May 1, 2015, by many years, e.g., the trademark application that issued as Complainant’s SPEX registration in the U.S. was filed January 20, 1984, and issued as long ago as January 8, 1985. As explained further below, Respondent has actual and/or constructive knowledge of Complainant’s SPEX mark, and therefore of this dispute, as of the January 20, 1984 filing date of the U.S. Trademark application that issued as U.S. Reg. No. 1,312,902. Moreover, the first use date claimed in Complainant’s U.S. trademark registration for SPEX is January 1, 1954, and Complainant’s aforementioned newsletters confirm such use back to the 1950’s, thereby establishing common law rights in its SPEX mark throughout the U.S. See Waterlefe Commnty. Dev’t. District and Waterlefe Master Property Owners Assoc., Inc. v. Adam Robinson, FA 1484320 (Nat. Arb. Forum March 29, 2013) (holding that “the first use date reflected in a valid USPTO Trademark Registration” established rights that “predate the filing of the [subject] domain name”); see also, Bob Jones Univ. v. Kane, FA 324692 (Nat. Arb. Forum Oct. 21, 2004) (finding that the complainant’s listing of first use of the mark on its USPTO registration establishes that the complainant had used the mark continuously and extensively since the time of first use, thereby establishing rights in the mark). As such, it is clear that Complainant’s rights in its SPEX mark are far superior to any that Respondent can attempt to assert in this proceeding. Indeed, “[i]t is well established under the Policy that the mere ownership of an earlier trademark right is sufficient for a Complainant to establish his rights.” Google Inc. v. YiWuShi Shuangfeng Jixie Youxian Gongsi c/o Huang Jian, FA 1159972 (Nat. Arb. Forum May 5, 2008).
The subject domain name is identical or confusingly similar to Complainant’s SPEX mark because the subject domain name incorporates the entirety of Complainant’s mark therein such that the subject domain is likely to be confused with Complainant’s mark. More particularly, the dominant element of the subject domain name is “spex”, which is the identical mark of Complainant, and which therefore bears an identical look, sound, and connotation to Complainant’s SPEX mark. Addition of letters or common, generic words, such as the “affair” in the subject domain, as well as, addition of the generic top-level domain (“gTLD”) “.com” to Complainant’s SPEX mark to create the subject domain name does not render the subject domain name distinct over Complainant’s mark. See Johnson & Johnson v. Pro Ser, FA 1290754 (Nat. Arb. Forum Dec. 8, 2009) (holding that likelihood of confusion exists under Policy ¶4(a)(i) where respondent’s “ilovejohnsons.com” domain name contained complainant’s mark with the generic words “i love” added to the beginning and the generic gTLD “.com” added to the end); The One Group LLC v. A.B. Solutions, FA1204001439348 (NAF May 24, 2012) (holding that likelihood of confusion exists under Policy ¶4(a)(i) where respondent’s stkbooty.com domain contained complainant’s mark with the generic word “booty” and the generic gTLD “.com” added at the end); 3M Company v. 3M Company c/o Domain Name Administrator, FA 1106749 (Nat. Arb. Forum Jan. 14, 2008) (holding that likelihood of confusion exists under Policy ¶4(a)(i) where respondent’s “3mporn.com” domain name contained complainant’s mark with the generic word “porn” and the generic gTLD “.com” added to the end); Microsoft Corp. v. microsoftporn.com Private Registrant c/o DreamHost Web Hosting, FA 1390487 (Nat. Arb. Forum June 20, 2011) (holding that likelihood of confusion exists under Policy ¶4(a)(i) where respondent’s “microsoftporn.com” domain name contained complainant’s mark with the generic word “porn” and the generic gTLD “.com” added to the end); AOL LLC v. NA a/k/a Kateryna Chernychenko, FA 1177320 (Nat. Arb. Forum May 26, 2008) (holding that likelihood of confusion exists where respondent’s “icqporn.net” domain name contained complainant’s mark with the generic word “porn” and the generic gTLD “.net” added to the end); Jerry Damson, Inc.
v. Tex. Int’l. Prop. Assocs., FA 916991 (Nat. Arb. Forum Apr. 10, 2007) (“The mere addition of a generic top-level domain (“gTLD”) “.com” does not serve to adequately distinguish the Domain Name from the mark”); and Perot Sys. Corp. v. Perot.net, FA 95312 (Nat. Arb. Forum Aug. 29, 2000) (finding that, given the similarity of the complainant’s marks with the domain name, consumers will presume the domain name is affiliated with the complainant; the respondent is attracting Internet users to a website, for commercial gain, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, or endorsement of the respondent’s website).
Even if Respondent were to assert that SPEX refers to an acronym and/or a common four-letter combination, such allegations do not avoid a confusing similarity analysis and are belied by the fact that the U.S. PTO and other foreign trademark agencies have granted registrations for Complainant’s SPEX mark. See Vance Int’l., Inc. v. Abend, FA 970871 (holding that respondent’s argument that complainant’s mark was too generic to receive protection was belied by the fact that the USPTO granted trademark registration); The Royal Bank of Scotland Group plc v. Texas Int’l. Property Assoc., FA 1072911 (Nat. Arb. Forum Nov. 5, 2007) (Even though the respondent alleged that it registered the “rbsus.com” domain name because it included a descriptive acronym, to which it believed no party had exclusive rights, the panel held that the “rbsus.com” domain name was confusingly similar to the complainant’s “RBS” mark); Cool Roof Rating Council, Inc. v. CRRC, Inc., FA 1082270 (Nat. Arb. Forum Nov. 27, 2007) (Even though the respondent alleged that the complainant’s mark “CRRC” is a commonly used acronym, the panel found the “crrcinc.com” domain name to be confusingly similar to the complainant’s “CRRC” mark); ICRCO, Inc. v. NA / Admin, Domain, FA 1389920 (Nat. Arb. Forum June 28, 2011) (the panel held the “icrco.com” domain name to be confusingly similar to the complainant’s “ICRCO” mark); and Smith Travel Research, Inc. v. Victor An, FA 1259999 (Nat. Arb. Forum June 15, 2009) (holding that respondent’s contention that a mark is a common letter combination does not deprive the complainant of protection). In the foregoing circumstances, Complainant’s SPEX mark is entitled to protection, and Respondent’s use thereof in the subject domain name is likely to be confused with Complainant’s rights in SPEX.
It is also irrelevant whether the content of the subject domain is similar or different to Complainant’s business when analyzing confusing similarity, especially where users/consumers, who were initially looking for information on Complainant’s goods or services, are subjected to the third party commercial content being hosted on the subject domain. As the panel explained in Caterpillar Inc. v. Ron Feimer, FA 1008998 (Nat. Arb. Forum July 28, 2007), confusing similarity existed between the respondent’s domain name and the complainant’s mark, regardless of whether the website content was similar or different to the business of the mark holder:
According to the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, the consensus view among UDRP panellists is that the “content of a website (whether it is similar or different to the business of a trademark owner) is irrelevant in the finding of confusing similarity. This is because trademark holders often suffer from ‘initial interest confusion,’ where a potential visitor does not immediately reach their site after typing in a confusingly similar domain name, and is then exposed to offensive or commercial content. The test for confusing similarity should be a comparison between the trademark and the domain name to determine the likelihood of confusion.” The relevant decisions cited are: Arthur Guinness Son & Co. (Dublin) Ltd. v. Dejan Macesic, D2000-1698 (WIPO Jan. 25, 2001) (transfer); Ansell Healthcare Prods. Inc. v. Australian Therapeutics Supplies Pty, Ltd., D2001-0110 (WIPO Apr. 5, 2001) (transfer); Dixons Group Plc v. Abdullaah, D2001-0843 (WIPO Aug. 23, 2001) (transfer); AT&T Corp. v. Kausar, D2003-0327 (WIPO July 29, 2003) (transfer).
See Caterpillar Inc., FA 1008998. Indeed, a potential visitor of Complainant’s website, and/or a customer who is looking for information on Complainant’s goods on the Internet, may suffer from initial interest confusion when that visitor/customer is misdirected to Respondent’s subject domain. Such initial interest confusion quite easily occurs because consumers are familiar with Complainant’s aforementioned SPEX businesses that provide various chemically-related products and other laboratory or testing products, and have been doing so since 1954.
Accordingly, the affairspex.net domain name, when considering Complainant’s strong rights in its SPEX mark and the mere addition of the generic term “affair”, is causing, or is likely to cause, confusion amongst the consuming public as to the source, affiliation or sponsorship of affairspex.net’s services and/or goods, thereby improperly trading on the good will of Complainant and creating a false association with Complainant’s establishment.
In view of the above, the aforementioned violations are, therefore, believed to be actionable under the Uniform Domain Name Dispute Resolution Policy (“UDRP”), adopted August 26, 1999 by the Internet Corporation for Assigned Names and Numbers (“ICANN”), and Complainant has established that the affairspex.net domain name is confusingly similar to Complainant’s SPEX mark under Policy ¶4(a)(i).
[b.] RESPONDENT HAS NO RIGHTS OR LEGITIMATE INTERESTS IN THE SUBJECT DOMAIN NAME – UDRP Rule 3(b)(ix)(2); UDRP Policy ¶4(a)(ii).
Respondent had notice of this dispute years before creating the subject domain name on May 1, 2015; namely, at least as early as the effective date (i.e., the January 20, 1984 filing date) of the application that matured into Complainant’s U.S. SPEX registration and the earlier filing/priority dates of the other foreign SPEX registrations; all of which far predate the May 1, 2015 registration date of Respondent’s domain name at issue. See Ideal Prods., LLC v. Manila Indus., Inc., FA 819490 (Nat. Arb. Forum Nov. 26, 2006) (“As of April 30, 2002 (the filing date of the application for U.S. registration of SANI-TRED), Respondent was on notice of Complainant’s trademark rights. Respondent cannot say that its preparation to use the domain name was without notice of the dispute, or that its use of the domain name was a bona fide offering of goods or services, given that notice”); McNeil Nutritionals, LLC v. Prepress Consultants, Inc. and Greg Irvin, FA 1043195 (Nat. Arb. Forum Sept. 11, 2007) and The One Group LLC v. Gouverneur Inc., FA 1450010 (NAF October 12, 2012) (each holding that the respondent had notice of the dispute as of the effective date of Complainant’s U.S. trademark registration, which far predated the earliest registration of the domain names at issue).
Further, Complainant has not licensed or otherwise permitted Respondent to use its SPEX mark in a domain name.
Respondent does not use, has never used, and is not in preparation to use the subject domain name, or name corresponding to the subject domain, in connection with a bona fide offering of goods or services, nor in connection with a legitimate noncommercial or fair use of the subject domain name without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue. At or around the time Complainant filed this Complaint, the subject domain name resolved to a “submit your application” page. Such use by Respondent does not amount to an offering of bona fide goods or services, or a legitimate noncommercial or fair use of the subject domain, nor does such use diminish the tarnishment of Complainant’s SPEX mark. See Bank of Am. Corp. v. Nw. Free Cmty. Access, FA 180704 (Nat. Arb. Forum Sept. 30, 2003) (“Respondent’s demonstrated intent to divert Internet users seeking Complainant’s website to a website of Respondent and for Respondent’s benefit is not a bona fide offering of goods or services under Policy ¶4(c)(i) and it is not a legitimate noncommercial or fair use under Policy ¶4(c)(iii).”); WeddingChannel.com Inc. v. Vasiliev, FA 156716 (Nat. Arb. Forum June 12, 2003) (finding that the respondent’s use of the disputed domain name to redirect Internet users to websites unrelated to the complainant’s mark, websites where the respondent presumably receives a referral or click-through fee for each misdirected Internet user, was not a bona fide offering of goods or services as contemplated by the Policy).
Even if Respondent were to argue that a third party (such as its Registrar) and not Respondent created the default, parked website for the subject domain name, such facts are irrelevant because Respondent is responsible for same, including the content thereof, and is responsible for any financial benefit realized by same. Discovery Communications, LLC v. Tripp Wood, FA 1299987 (finding that the respondent’s arguments that “he does not control the links generated by the parking service and he does not receive revenue from the parking service” unpersuasive because the respondent “is ultimately responsible for the content resolving from the disputed domain name. He has allowed the disputed domain name to resolve to the [registrar] sponsored site, which site has links to other commercial ventures”); Google Inc. v. James Hung, FA 1249421 (holding that, since the disputed domain resolves to a default website created by respondent’s registrar, “the Respondent has not established a bona fide offering of goods or services under the domain name, in that the domain name has always been associated with a default page of [respondent’s registrar]”, and such use does not establish any legitimate noncommercial or fair use as well); see also, Bank of Am. Corp. v. Nw. Free Cmty. Access, FA 180704 (Nat. Arb. Forum Sept. 30, 2003) (“Respondent’s demonstrated intent to divert Internet users seeking Complainant’s website to a website of Respondent and for Respondent’s benefit is not a bona fide offering of goods or services under Policy ¶4(c)(i) and it is not a legitimate noncommercial or fair use under Policy ¶4(c)(iii).”).
Further, Respondent has not acquired any trademark or service mark rights in the subject domain, and is not known to have been commonly referred to as “affairspex” or “affairspex.net”. First, the website page that opens when going to the accused domain opens not to a site using “affairspex”, but instead to one using “modestrain”. Further, the WHOIS database registrant information for the subject domain (see Annex 11) does not indicate that Respondent is commonly known by the disputed domain name because the registrant is clearly listed as “Biohistory Research.” Thus, it is clear from this evidence of record that Respondent is not commonly known by, and has intended to not be commonly known by, the disputed domain name under 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 name(s) where the WHOIS information, as well as the 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 mark); The One Group v. Shanghai Shi Sheng Trade Co., Ltd, FA 1535799 (NAF January 29, 2014) (same); The Prudential Ins. Co. of America v. Konstantinos Zournas, FA 1392709 (Nat. Arb. Forum July 26, 2011) (the respondent had no legitimate interests in the domain name because there was no evidence on the record showing that the respondent owned any “PRU” trademark or service mark for the domain name pru.us); and Pepsico, Inc. v Becky, FA 117014 (Nat. Arb. Forum Sept. 3, 2002) (holding that because the respondent did not own any trademarks or service marks reflecting the <pepsicola.us> domain name, it had no rights or legitimate interests pursuant to Policy ¶4(c)(i)).
Assuming for the sake of argument only that Respondent does not obtain revenue from the affairspex.net domain, with a large use of the internet being for pornography, it can only be assumed that Respondent’s intent in registering a domain name having the term “affair” is to use the same, at some point, for a pornography website, or at the very least, a website that promotes a married person to have an affair. Neither of these uses would qualify as a bona fide offering of goods or services under Policy ¶4(c)(i) or a legitimate noncommercial or fair use of the disputed domain name under Policy ¶4(c)(iii). See Microsoft Corp., FA 1390487 (holding that the respondent’s use of microsoftporn.com to display adult-oriented materials does not qualify as a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶4(c)(i) and Policy ¶4(c)(iii)); 3M Company, FA 1106749 (holding that use of the 3mporn.com domain name to resolve to an adult-oriented website is not a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶4(c)(i) and Policy ¶4(c)(iii)); Johnson & Johnson v. Pro Ser, FA 1290754 (holding that the use of ilovejohnsons.com to open to a site with pornographic material was not a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶4(c)(i) and Policy ¶4(c)(iii)); AOL LLC, FA 1177320 (holding respondent’s use of icqporn.net for displaying pornography was not a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶4(c)(i) and Policy ¶4(c)(iii)); see also, Isleworth Land co. v. Lost In Space, SA, FA 117330 (Nat. Arb. Forum Sept. 27, 2002) (finding the respondent’s use of its domain name to link unsuspecting traffic to an adult oriented website did not constitute a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶4(c)(i) and Policy ¶4(c)(iii)); Target Brands, Inc. v. Bealo Group S.A., FA 128684 (holding that the respondent’s use of targetstore.net to redirect users to an adult-oriented website did not equate to a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶4(c)(i) and Policy ¶4(c)(iii)).
Because Respondent has no rights in the SPEX mark and because Complainant has not licensed or otherwise permitted Respondent to use Complainant’s famous SPEX mark in any manner, including not in any domain name, Respondent’s use of Complainant’s famous SPEX mark undermines any claim to a legitimate interest. Household Int’l., Inc. v. Cyntom Enterprises, FA 95784 (Nat. Arb. Forum Nov. 7, 2000) (finding that use of someone else’s well known business name undermines any claims to a legitimate interest). In view of the foregoing, Respondent’s “use” of the subject domain is not a bona fide offering of goods or services under Policy ¶4(c)(i) or a legitimate noncommercial or fair use under Policy ¶4(c)(iii). Accordingly, Complainant respectfully requests the Panel to hold Respondent has no rights or legitimate interests in sellspex.com.
[c.] RESPONDENT, THE SUBJECT DOMAIN HOLDER, REGISTERED AND IS USING THE SUBJECT DOMAIN IN BAD FAITH UNDER UDRP POLICY ¶¶4(b)(ii),
(iii) and (iv) – UDRP R. 3(b)(ix)(3); UDRP P. ¶4(a)(iii).
As explained above, Respondent acquired the subject domain name with actual and/or constructive knowledge, or reasonably should have been aware actually or constructively, of Complainant’s SPEX mark and, therefore, of this dispute. “Acquisition of the Disputed Domains with actual knowledge of [Complainant’s SPEX mark] indicates bad faith registration and use, especially as the Disputed Domains comprise [one or more terms] which precisely target[] the business carried on by Complainant in connection with the [SPEX] Mark[]”. Vance Int’l, Inc. v. Abend, FA 970871 (holding that acquisition of a disputed domain name with actual and/or constructive knowledge of the complainant’s mark is evidence of bad faith registration and use) (emphasis added); State Farm Mut. Auto. Ins. Co. v. America’s Mortgage Center, FA 960208 (Nat. Arb. Forum May 23, 2007) (“Registration of confusingly similar domain names despite such constructive knowledge is, without more, evidence of bad faith registration and use…”); Digi Int’l Inc. v. DDI Systems, FA 124506 (Nat. Arb. Forum Oct. 24, 2002) (“[T]here is a legal presumption of bad faith, when Respondent reasonably should have been aware of Complainant's trademarks, actually or constructively”); The True Value Co.
v. Steven Loosle, FA 915373 (Nat. Arb. Forum Mar. 26, 2007) (citing Entrepreneur Media, Inc. v. Smith, 279 F.3d 1135 at 1148 (9th Cir. Feb. 11, 2002) for the proposition that “[w]here an alleged infringer chooses a mark he knows to be similar to another, one can infer an intent to confuse.”) Accordingly, Complainant respectfully requests that the Panel conclude that at the time that Respondent acquired the subject domain, Respondent was fully aware of Complainant and its SPEX mark and that such knowledge is evidence of bad faith registration and use.
Additionally, as explained above, Complainant and its SPEX mark have become famous. In view of such fame, Complainant submits that it should be “inconceivable to the Panel that the Respondent was acting in good faith in adopting [a] domain name[] so close to” Complainant’s SPEX mark. See McNeil Nutritionals, LLC v. Prepress Consultants, Inc. and Greg Irvin, FA 1043195 (finding bad faith registration and use where the respondent adopted domain names that were identical to or so close to a famous mark); MSI Holdings, LLC v. Kobhi N/SpexFix, FA1600007 (holding that, in view of Respondent’s constructive notice of Complainant’s mark for approximately 30 years, “it is inconceivable that Respondent … could innocently affix a suffix of “fix” to an otherwise famous mark in good faith”).
Respondent was acting in bad faith when Respondent added the word “machine” to Complainant’s SPEX mark to create a domain name that suggests a connection to Complainant, and when Respondent registered the domain name even though Respondent has no connection with Complainant whatsoever. See Bergdorf Goodman, Inc. & NM Nevada Trust v. Edwyn Huang, FA 1286505 (Nat. Arb. Forum Nov. 4, 2009) (holding that “the registration of a confusingly similar domain name that is obviously connected with a particular trademark owner by someone with no connection with the trademark owner suggests bad faith.”); Deutsche Bank AG v. Diego-Arturo Bruckner, D2000-0277 (WIPO May 30, 2000) (“The Domain Name is so obviously connected with the Complainant and its services that its very use by someone with no connection with the Complainant suggests opportunistic bad faith”); MSI Holdings, LLC v. Kobhi N/SpexFix, FA1600007 (holding that, in view of Respondent’s constructive notice of Complainant’s mark for approximately 30 years, “it is inconceivable that Respondent … could innocently affix a suffix of “fix” to an otherwise famous mark in good faith”).
Respondent’s conduct in passively holding, and in failing to actively use, the subject domain name further supports bad faith registration and use under Policy ¶4(a)(iii). See Chan Luu v. catcat juan, FA 1454092 (holding that the respondent’s failure to make active use of the subject domain names (as the subject domains merely resolved to respective default webpages set up by the respondent’s registrar) is evidence of bad faith pursuant to Policy ¶4(a)(iii)); First Capital Group of Texas v. Shanahan LTD, FA 198540 (Respondent’s failure to make an active use of the disputed domain name is evidence of bad faith registration and use of the disputed domain name); MSI Holdings, LLC v. Kobhi N/SpexFix, FA1600007 (same).
Upon information and belief, a source of disruption to Complainant’s business under Policy ¶4(b)(iii) is the diversion of Internet users searching for Complainant and Complainant’s SPEX goods to Respondent’s website, resulting in Respondent’s presumed profiting/benefiting, due to Respondent’s improper use of the subject domain name. Indeed, confusion and/or initial interest confusion resulting from Respondent’s improper use of the subject domain name presumably distracts one or more users, who were initially looking for Complainant and Complainant’s goods, and causes those users to stop looking for Complainant’s goods, or convinces those users to believe Complainant is no longer in business because Complainant’s website did not come up. Such a situation existed as recently as September 26, 2014, and still exists as of the date of this filing, when users were distracted by the click-through links displayed on spexmachine.com. Upon information and belief, such use results in lost sales/revenue due to Respondent’s interference with Complainant’s business, regardless of whether or not the content of the subject domain displayed competing or non-competing products or services thereon.
Upon information and belief, Respondent has intentionally attempted to attract, for believed commercial gain, Internet users to the subject domain, by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s web site or location or of a product or service displayed (e.g., by one or more advertisements) on the subject domain through receipt of click-through fees, thereby further evidencing bad faith registration and use thereof. See AutoZone Parts, Inc. et al., FA 1330042 (finding the respondent’s activities of using the disputed domain name to commercially profit from misuse of complainant’s mark via generation of fees from click-through links supports findings of bad faith registration and use according to Policy ¶4(b)(iv)); T-Mobile USA, Inc. v. utahhealth, FA 697821 (Nat. Arb. Forum June 7, 2006) (holding that registration and use of a domain name confusingly similar to a complainant’s mark to direct Internet traffic to a commercial “links page” in order to profit from click-through fees or other revenue sources constitutes bad faith under Policy ¶4(b)(iv)); Bank of Am. Fork v. Shen, FA 699645 (Nat. Arb. Forum June 11, 2006) (holding that respondent’s use of the disputed domain name to mislead consumers looking for complainant’s services instead to a web directory was evidence of bad faith because respondent presumably commercially benefited by receiving click-through fees for diverting Internet users to unrelated third-party websites from the directory); Enterprise Holdings, Inc. v. Above.com Domain Privacy, FA 1344356 (Nat. Arb. Forum Oct. 28, 2010) (holding that where a respondent “use[d] the disputed domain name to redirect Internet users to its websites and, subsequently, third-party competing websites”, the respondent “disrupts Complainant’s business and that this behavior provides evidence of bad faith under Policy ¶4(b)(iii)); see also, Tesco Pers. Fin. Ltd. v. Domain Mgmt. Servs., FA 877982 (Nat. Arb. Forum Feb. 13, 2007) (concluding that the use of a confusingly similar domain name to attract Internet users interested in a complainant’s services to a website containing commercial links to the websites of a complainant’s competitors disrupts the complainant’s business and represents bad faith registration and use under Policy ¶4(b)(iii)); Persohn v. Lim, FA 874447 (Nat. Arb. Forum Feb. 19, 2007) (finding bad faith registration and use pursuant to Policy ¶4(b)(iii) where a respondent used the disputed domain name to operate a commercial search engine with links to the complainant’s competitors); and David Hall Rare Coins v. Tex. Int’l. Prop. Assocs., FA 915206 (Nat. Arb. Forum Apr. 9, 2007) (holding that respondent’s use of disputed domain name to advertise goods and services of complainant’s competitors disrupted complainant’s business).
Assuming for the sake of argument only that the Panel finds that Respondent is not collecting, and/or was not collecting, a fee from the default, parked website for the subject domain (which Complainant does not concede), Complainant notes that prior panels have held that a respondent’s actions still constitute bad faith registration and use under Policy ¶4(b)(iv) in view of the confusion caused by the disputed domain name and the resulting diversion of Internet traffic. See Google Inc. v. James Hung, FA 1249421 (holding that, even though it appears that Respondent may not be collecting a fee from the default website, the respondent still registered and used the disputed domain in bad faith “in view of the confusion caused by the domain name, and the resulting diversion of Internet traffic”); see also, Verizon Trademark Services LLC v. n/a and Ruslan Biletsky, FA 1383599 (Nat. Arb. Forum May 12, 2011) (initial interest confusion caused by respondent’s use of complainant’s mark in the disputed domain name was further evidence of respondent’s bad faith registration and use thereof).
After all, even if Respondent were to assert that the subject domain was merely “parked”, resolves or resolved to a default website created by its Registrar and that no revenue was or is being generated, such “use” still supports a finding of bad faith registration and use. See AT&T Intellectual Property II, L.P. v. webmasters411.com, FA 1286049 (Nat. Arb. Forum Nov. 23, 2009) (holding that domain “parking” supports a determination of bad faith registration and use). Moreover, as explained above, it is irrelevant that the subject domain name resolves to a default website created by a third party or Respondent as Respondent is responsible for same. See Discovery Communications, LLC v. Tripp Wood, FA 1299987 (finding that the respondent’s argument that “he does not control the links generated by the parking service and he does not receive revenue from the parking service” unpersuasive because the respondent “is ultimately responsible for the content resolving from the disputed domain name. He has allowed the disputed domain name to resolve to the [registrar] sponsored site, which site has links to other commercial ventures. Other panels have decided, and I agree, that a respondent engages in bad faith registration and use when the respondent has authorized the use of the parking service and thus condoned its use of the disputed domain name. Respondent in this case has done this by entering into the agreement he entered into with [his registrar]…[Also,]…he did allow the disputed domain name to be used to attract, for commercial gain, Internet users who may be confused as to Complainant’s affiliation with those sites. This constitutes bad faith registration and use.”) (emphasis added); Vance Int’l., Inc. v. Abend, FA 970871 (finding bad faith registration and use where the “[r]espondent [was] adamant that he [was] not receiving click-through referral fees generated from the websites at which the Disputed Domains [were] ‘parked.’ …for a number of reasons, the Panel [found] that it [was] irrelevant whether or not [the r]espondent [was] personally receiving any of those click-through referral fees. The key fact here [was] that Respondent, in collaboration with the domain parking service providers, [was] exploiting Complainant’s goodwill”) (emphasis added); Larry Graham v. Company, S.E.E., FA 1268274 (Nat. Arb. Forum July 22, 2009) (“Even if Respondent was not benefiting from those PPC advertisements, the law is clear that Respondent permitted the registrar to post this improper content (or, at the minimum, failed to direct the registrar to remove these advertisements), and thus Respondent is ultimately responsible for the content the registrar posted on the website.”); see also, Baylor Univ. v. Red Hot Web Gems, Inc., FA 1082178 (Nat. Arb. Forum Dec. 3, 2007) (holding that, even if the respondent did not receive any revenues directly from the click-through fees, the respondent still registered and used the domain name in bad faith because the “revenues accrue to the domain name registrar who offers a ‘parking service’ for domain holders until they are ready to post their own content. However, Respondent has a choice to resolve the domains to blank or noncommercial pages and has chosen not to do so. In doing so, Respondent is spared the cost of website hosting fees, which inures to Respondent's commercial benefit. Therefore, Respondent has allowed the domains to be used to attract, for commercial gain, Internet users who may be confused as to Complainant’s affiliation with those sites.”) (emphasis added).
Further, and at the very least, Respondent’s improper use of Complainant’s SPEX mark to lure Complainant’s customers or Internet users looking for information on Complainant’s goods or services to an adult-oriented website tarnishes Complainant’s SPEX mark. See Microsoft Corp., FA 1390487 (holding that: (i) Complainant may utilize the entirety of the situation surrounding the Respondent’s registration and use of the disputed domain name; (ii) use in bad faith can be inferred from the totality of the circumstances even when the registrant has done nothing more than register the names; and (iii) using the confusingly similar microsoftporn.com domain name to resolve to a site offering adult-oriented materials is evidence of bad faith registration and use under Policy ¶4(a)(iii)); 3M Company, FA 1106749 (holding that use of the 3mporn.com domain name to resolve to an adult-oriented website constitutes bad faith registration and use pursuant to Policy ¶4(a)(iii)); Johnson & Johnson v. Pro Ser, FA 1290754 (holding that the use of ilovejohnsons.com to open to a site with pornographic material and to display links to third-party, adult-oriented websites where the respondent was likely profiting from such confusing use of the complainant’s mark established that the respondent registered and used the disputed domain name in bad faith pursuant to Policy ¶4(a)(iii)); AOL LLC, FA 1177320 (holding (i) respondent’s use of the confusingly similar “icqporn.net” domain name to display adult-oriented conduct “creates Internet user confusion as to Complainant’s affiliation with the website content”; (ii) respondent is attempting to profit from complainant’s mark; and (iii) such use is evidence of bad faith registration and use under Policy ¶¶4(b)(iv) and 4(a)(iii)) (emphasis added); see also, Wells Fargo & Co. v. Party Night, Inc., FA 144647 (Nat. Arb. Forum Mar. 18, 2003) (holding that respondent’s tarnishing use of the disputed domain names to redirect Internet users to adult-oriented websites was evidence that the disputed domain names were being used in bad faith) (emphasis added); Six Continents Hotels, Inc. v. Nowak, D2003-0022 (WIPO Mar. 4, 2003) (“[W]hatever the motivation of Respondent, the diversion of the domain name to a pornographic site is itself certainly consistent with the finding that the Domain Name was registered and is being used in bad faith.”).
In view of the above, Respondent has registered and used and/or uses the affairspex.net domain in bad faith under at least UDRP Policy ¶¶4(b)(i), (iii), and (iv).
B. Respondent
Respondent failed to submit a Response in this proceeding.
(1) the domain name registered by Respondent is NOT 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 NOT been registered and is NOT being used in bad faith.
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 Complainant prove the following three elements to obtain an order cancelling or transferring a domain name:
(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.”).
Complainant is the owner of the SPEX mark, as evidenced by its registration with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 1,312,902, registered Jan. 8, 1985). Complainant uses the SPEX mark in connection with its sample preparation equipment and supplies for spectroscopists. Complainant’s equipment is used to prepare samples for a wide range of analytical technologies, and for cutting-edge research in pharmaceuticals, superconductors, polymers, and genetics. Registration of a mark with the USPTO (or any other governmental authority) is sufficient to establish rights in the mark pursuant to Policy ¶4(a)(i). See Metro. Life Ins. Co. v. Bonds, FA 873143 (Nat. Arb. Forum Feb. 16, 2007) (finding that a USPTO trademark registration adequately demonstrates a complainant’s rights in a mark under Policy ¶4(a)(i)). Complainant’s USPTO registration is sufficient to prove its rights under Policy ¶4(a)(i).
Complainant claims the <affairspex.net> domain name is confusingly similar to the SPEX mark. This Panel does not agree. The domain name includes Complainant’s entire mark, adds the generic term “affair” at the beginning and simply adds the gTLD “.net” to the domain name. Domain names that feature the addition of a generic term to a complainant’s trademark have a high likelihood of confusing similarity. See Arthur Guinness Son & Co. (Dublin) Ltd. v. Healy/BOSTH, D2001-0026 (WIPO Mar. 23, 2001) (finding confusing similarity where the domain name in dispute contains the identical mark of the complainant combined with a generic word or term). However, the addition of this term (which the Panel would not describe as generic as to Complainant’s business) occurs at the beginning of the domain name. The resulting domain name just isn’t confusingly similar to Complainant’s mark. Complainant’s claim the phrase is pornographic isn’t convincing. The domain name just isn’t similar enough to Complainant’s mark to be confusing.
The Panel finds Policy ¶4(a)(i) NOT satisfied.
Complainant must first make a prima facie case Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶4(a)(ii). Then the burden shifts to Respondent to show it has rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under UDRP ¶4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name); see also AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006) (“Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.”).
Complainant claims Respondent has no rights or legitimate interests in the disputed domain name. According to the WHOIS information, Respondent is not commonly known by the disputed domain name. There is no obvious relationship between Respondent’s name (Biohistory Research) and the disputed domain name (Afairspex.net). The resolving website seems to operate under the name <modestrain.com> rather than <affairspex.net>. Complainant has not licensed or otherwise permitted Respondent to use the SPEX trademark in a domain name. Since Respondent has not refuted these allegations, Complainant’s claims are sufficient to establish Respondent’s lack of rights to the disputed domain name according to 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 domain names, and the complainant had not authorized the respondent to register a domain name containing its registered mark).
Complainant claims Respondent does not use and has never used the disputed domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use. Respondent’s <affairspex.net> domain name resolves to a website which invites users to “Submit Your Application Now !” by “enter[ing] your e-mail here.” This seems to be a phishing exercise of some kind, although Complainant did not make the claim. Respondent has not established a bona fide offering of goods or services or a legitimate noncommercial or fair use.
Complainant claims Respondent’s intended to register the domain name with the term “affair” which is to use the disputed domain name for a pornographic website, or at the very least, a website that promotes a married person to have an affair. Although the final web site certainly does not appear pornographic, neither of these uses would qualify as a bona fide offering of goods or services or a legitimate noncommercial or fair use. Complainant has provided no evidence the disputed domain is actually connected to pornographic content, other than its assertion that the Internet is largely used for pornography.
Respondent’s use for the domain name is unclear and elusive. Even Respondent’s identity is opaque. This means Respondent has no rights or legitimate interests in the disputed domain name.
The Panel finds Policy ¶4(a)(ii) satisfied.
Complainant failed to meet the burden of proof of bad faith registration and use under Policy ¶4(a)(iii), primarily because the disputed domain name is not confusingly similar to Complainant’s mark. See Starwood Hotels & Resorts Worldwide, Inc. v. Samjo CellTech.Ltd, FA 406512 (Nat. Arb. Forum Mar. 9, 2005) (finding that the complainant failed to establish that the respondent registered and used the disputed domain name in bad faith because mere assertions of bad faith are insufficient for a complainant to establish Policy ¶4(a)(iii); see also Graman USA Inc. v. Shenzhen Graman Indus. Co., FA 133676 (Nat. Arb. Forum Jan. 16, 2003) (finding that general allegations of bad faith without supporting facts or specific examples do not supply a sufficient basis upon which the panel may conclude that the respondent acted in bad faith).
There is no evidence Respondent registered and uses the domain name primarily for the purpose of selling it to Complainant under Policy ¶4(b)(i).
There is no evidence Respondent registered the domain name to prevent Complainant from reflecting Complainant’s mark in a domain name under Policy ¶4(b)(ii). After all, Complainant owns the spexcertiprep.com and spexcsp.com domain names.
There is no evidence Respondent registered and uses the domain name primarily for the purpose of disrupting a competitor under Policy ¶4(b)(iii).
Complainant has not alleged sufficient facts for this Panel to conclude Respondent registered and uses the domain name to attract (for commercial gain) Internet users to Respondent’s web site, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s web site under Policy ¶4(b)(iv).
The Panel finds Policy ¶4(a)(iii) NOT satisfied.
Having not established all three elements required under the ICANN Policy, the Panel concludes relief shall be DENIED.
Accordingly, it is Ordered the <affairspex.net> domain name REMAIN WITH Respondent.
Houston Putnam Lowry, Chartered Arbitrator, Panelist
Dated: Friday, July 31, 2015
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