Notice of Withdrawal of Decision
The November 13, 2015 decision of the Panel in the following UDRP proceeding is hereby withdrawn in full pursuant to the order and Consent Judgment, dated July 10, 2017, from the U.S. District Court for the Central District of California in Virtualpoint, Inc., dba Captive Media v. Poarch Band of Creek Indians, dba PCI Gaming Authority, Case 8:15-cv-02025-CJC-KES (C.D. Cal. July 10, 2017):
Poarch Band of Creek Indians dba PCI Gaming Authority v.
Tech Admin, Virtual Point, No. 1639763 (November 13, 2015).
Decision: Withdrawn in full
Director of Arbitration
6465 Wayzata Blvd., Suite 480
Minneapolis, MN 55405
Poarch Band of Creek Indians dba PCI Gaming Authority v. Tech Admin, Virtual Point
Claim Number: FA1509001639763
Complainant is Poarch Band of Creek Indians dba PCI Gaming Authority (“Complainant”), represented by William B. Dyer III of Finnegan, Henderson, Farabow, Garrett & Dunner, L.L.P., Georgia, USA. Respondent is Tech Admin, Virtual Point (“Respondent”), represented by Brian P. Kinder, California, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <windcreek.com>, registered with Dynadot, 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 Panelist in this proceeding.
Antonina Pakharenko-Anderson as Panelist.
Complainant submitted a Complaint to the Forum electronically on September 28, 2015; the Forum received payment on September 28, 2015.
On September 30, 2015, Dynadot, LLC confirmed by e-mail to the Forum that the <windcreek.com> domain name is registered with Dynadot, LLC and that Respondent is the current registrant of the name. Dynadot, LLC has verified that Respondent is bound by the Dynadot, 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 September 30, 2015, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 20, 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 email@example.com. Also on September 30, 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.
A timely Response was received and determined to be complete on October 20, 2015.
Complainant submitted a timely additional submission, which was received by the Forum on October 25, 2015.
Responding to new arguments raised by Complainant, Respondent submitted his additional submission on October 30, 2015, which was timely according to The Forum's Supplemental Rule #7.
On October 30, 2015, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Antonina Pakharenko-Anderson 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.
Complainant requests that the domain name be transferred from Respondent to Complainant.
Complainant, Poarch Creek Indian Gaming Authority, which is a business enterprise created by the Poarch Band of Creek Indians, the only federally recognized Indian Tribe in the state of Alabama, manages three gaming facilities in this state, including: the Wind Creek Casino & Hotel in Atmore; Creek Casino Wetumpka; and Creek Casino Montgomery.
PCI has been extensively promoting its casino and hotel services under the WIND CREEK trademarks on the Internet via its websites, the domains names for which were created back in 2007, through press releases, via LinkedIn and Facebook.
Wind Creek Casino & Hotel Atmore was opened in 2009, and shortly after this was designated a AAA Four-Diamond resort.
Complainant’s rights in its WIND CREEK mark are based on both its common law rights acquired through the substantial and continuous use of the WIND CREEK mark since at least as early as January 2009, and on Complainant’s trademark registrations.
Complainant has registered the standard character WIND CREEK trademark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 4,485,354, first use in commerce Jan. 6, 2009, filed Sept. 11, 2013, registered Feb. 18, 2014).
Complainant is also a holder of the standard character mark WIND CREEK
CASINO & HOTEL (Reg. no. No. 3,643,523 first used Jan. 6, 2009, filed Feb. 6, 2009, registered June 23, 2009); and the standard character mark ESCAPE AT WIND CREEK (Reg. No. 4,161,444, first used Nov. 23, 2011, filed Jan. 18, 2012, issued June 19, 2012).
The <windcreek.com> domain name is identical or confusingly similar to the WIND CREEK mark because the only difference between the domain name and the mark is the addition of the generic top-level domain (“gTLD”) “.com.”
Respondent has no rights or legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii). Respondent is not commonly known by the disputed domain name, nor is Respondent a licensee of Complainant as demonstrated by the available WHOIS information and other evidence in the record. Further, Respondent is not making a bona fide offering of goods or services or a legitimate noncommercial or fair use because the domain name is being used to display competing hyperlinks.
Respondent has engaged in bad faith registration and use under Policy ¶ 4(a)(iii). Respondent has displayed bad faith under Policy ¶ 4(b)(ii) by engaging in a pattern of bad faith registrations. By displaying competing hyperlinks on the resolving webpages, Respondent is disrupting Complainant’s business in bad faith under Policy ¶ 4(b)(iii). Also, Respondent has created a likelihood of confusion from which it is or is attempting to profit, which consists of bad faith under Policy ¶ 4(b)(iv).
Respondent contends that Complainant’s trademark registration is fraudulent because Complainant failed to disclose the generic nature of the words making up the WIND CREEK mark. Moreover, Complainant concealed and misrepresented facts pertinent to the case, as well as manipulated evidences.
Respondent does not contest whether the domain name is identical or confusingly similar to the WIND CREEK mark under Policy ¶ 4(a)(i).
Respondent has rights or legitimate interests according to Policy ¶ 4(a)(ii). Respondent is a generic domain name reseller, which means Respondent is making a bona fide offering of goods or services. Further, the disputed domain name is a name which has a geographic significance and does not connote any one particular source. The generic nature of the term is evidenced by the fact that there are also numerous uses of the phrase “wind creek” in other domain names and by entities spread throughout the United States and abroad.
Complainant ignores the facts that the creation date of the domain is in 2003, while the date October 23, 2014 on which it relies as the registration date is the time when changes were made in the WHOIS records, which have nothing do with the change of ownership and particularly acquisition of the domain name by Respondent. Respondent updated the records so that communications would be directed to the “Tech Admin” for Virtual Point (Respondent’s corporate name) rather than the “Support Desk” of Captive Media (a dba for a division within Respondent’s corporation), which appears in Exhibit 6. Thus, in any event, Respondent’s registration of the domain name predates any rights Complainant may have in the WIND CREEK trademark.
Complainant is fully aware about this, since it was in communication with Respondent as far back as June 11, 2013 – i.e., almost a year and half prior to the date that Complainant alleges to be Respondent’s registration date. On June 11, 2013, Complainant’s representative contacted Respondent via email and inquired about purchasing the Disputed Domain Name.
Respondent has not engaged in bad faith registration or use pursuant to Policy ¶ 4(a)(iii). The domain name consists of generic terms over which Complainant does not have a monopoly. Also, the disputed domain name’s registration predates any date on which Complainant could have acquired trademark rights in the WIND CREEK mark, thereby demonstrating that Respondent could not have registered the disputed domain name in bad faith under Policy ¶ 4(a)(iii).
C. Additional Submissions
In its additional submission, Complainant denies that the terms comprising the <windcreek.com> trademark are geographically descriptive. According to Complainant, examples of the use of the term “Wind Creek”, which had to support Respondent’s allegations of the geographical descriptiveness of the term, are, in fact, examples of concurrent trademark usage by other sellers.
Complainant was not aware about the fact Captive Media and Respondent were related company.
Complainant did not respond to communication from Captive Media asking them to quote an offer for purchasing the domain.
Regarding the domain name registration date, the original registrant of the domain in 2003 was likely Andrew Neyhart of Commend Technologies in Keller, Texas. The company Crosspath acquired the domain name from Andrew Neyhart in May 2012, and Captive Media (Respondent’s alleged predecessor-in-interest) acquired the domain name from Crosspath in October 2012. Although Respondent insists that the Domain Name registration history reflects a “creation date” of 2003, even taking as true Respondent’s claim that Captive Media is a related entity to Virtual Point, WHOIS records confirm that Captive Media was not listed as registrant of the Domain Name until October 2012, namely over three years after PCI began using its WIND CREEK Mark.
In its turn, Respondent made an attempt to rebut further arguments of Complainant by bringing its additional submission, which is mostly reiterating the arguments raised in the response, focusing on the geographical nature of the domain and accusations of reverse domain name hijacking.
Complainant has shown that it has rights in a trademark or service mark which are recognizable under Policy ¶ 4(a)(i).
Respondent acquired the disputed domain not earlier than in October 9, 2012.
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.
As follows from Exhibit 5 to Complaint, Complainant is a holder of various trademarks incorporating the term “Wind Creek”.
Particularly, Complainant is a holder of the trademark WIND CREEK CASINO & HOTEL (“casino and hotel” disclaimed) (Reg. no. No. 3,643,523, first used Jan. 6, 2009, filed Feb. 6, 2009, registered June 23, 2009).
Complainant has also registered the WIND CREEK trademark with the USPTO (e.g., Reg. No. 4,485,354, first use in commerce Jan. 6, 2009, filed Sept. 11, 2013, registered Feb. 18, 2014). The mark is used in connection with entertainment services (casino gambling) as well as hotel accommodation services.
These federal registrations are taken to be due evidences of Complainant’s trademark rights, which is in line with the position of previous panels finding that registration with the USPTO is sufficient to establish rights in a trademark according to Policy ¶ 4(a)(i). See Vivendi Universal Games v. XBNetVentures Inc., FA 198803 (Nat. Arb. Forum Nov. 11, 2003) (“Complainant's federal trademark registrations [with the USPTO] establish Complainant's rights in the BLIZZARD mark.”). Moreover, previous panel decisions have generally held that trademark registrations are valid and constitute prima facie evidence of ownership, validity and the exclusive right to their use. See Microsoft Corporation v. J. Holiday Co. (WIPO case no. D2000-1493 February 20 2000).
Complainant further asserts common law rights in the WIND CREEK mark dating back to January 6, 2009.
However, the Panel finds that the evidences in this case, particularly screenshots from Complainant’s websites, as well as social media websites where Complainant has advertised the WIND CREEK mark (See Compl., at Attached Ex. 4), are not sufficient to establish common law rights dating back to January 6, 2009, since they do not give an idea on the time of commencement of trademark use, length and scope of such use, as well as the extent of advertising. Complainant has not provided any consumer surveys or confirmation for media recognition either, other than mere mention of the fact that the hotel was designated a AAA Four-Diamond resort shortly after its opening in 2009.
Prior panels have agreed that in order to establish common law rights under the Policy, the complainant must show that the mark has acquired secondary meaning. See Mary’s Futons, Inc. v. Tex. Int’l Prop. Assocs., FA 1012059 (Nat. Arb. Forum Aug. 13, 2007) (stating that only through the establishment of secondary meaning can a complainant be granted common law rights). Relevant evidence of secondary meaning includes, but is not limited to, “length and amount of sales under the mark, the nature and extent of advertising, consumer surveys and media recognition.” See Gourmet Depot v. DI S.A., FA 1378760 (Nat. Arb. Forum June 21, 2011).
Based on the aforesaid and the evidences on the records of the case, it is found that Complainant established trademark rights deriving from its federal registrations with the USPTO. Particularly, the Panel finds that the earliest relevant date for which the trademark rights have been confirmed and which pre-dates the domain name acquisition by Respondent, is February 6, 2009, which is the filing date in the reg. no. 3,643,523 for the WIND CREEK CASINO & HOTEL trademark. See Hershey Co. v. Reaves, FA 967818 (Nat. Arb. Forum June 8, 2007) (finding that the complainant’s rights in the KISSES trademark through registration of the mark with the USPTO “date back to the filing date of the trademark application and predate [the] respondent’s registration”).
The generic terms “casino” and “hotel” were expressly disclaimed in the mentioned Complainant’s registration for the WIND CREEK CASINO & HOTEL trademark. The remaining part of the mark “Wind Creek” is dominant and distinctive. The addition of the generic terms “casino” and “hotel” to the trademark is secondary and descriptive of the services which Complainant provides.
When assessing a domain name's identity or confusing similarity under the first element of the UDRP, textual content, which has been expressly disclaimed in a complainant's relevant trademark registration, is generally disregarded by panels. See Islamic Bank of Britain v. Ifena Consulting, Charles Shrimpton, D2010-0509 (WIPO May 28 2010) (stating that the disputed domain name omits the words “of Britain”, which is part of the Complainant's trade mark, and which is also a geographic reference. This is not of itself sufficient to prevent a finding of confusing similarity because the words “Islamic Bank” are more distinctive than “of Britain” in this Panel's view. The use of “Britain” in the trade mark is geographic in the sense that it refers to the place where the organisation is based); see also Asset Loan Co. Pty Ltd v. Gregory Rogers, D2006-0300 (WIPO May 2 2006) (finding the domain name confusingly similar to the Complainant’s registered trademark, since “the dominant thrust of the trademark is to convey to the reader the name Asset Loan Co and it is this concept that makes up the entirety of the domain name. The fact that the trademark adds that the Asset Loan Co provides alternative financing with discretion is clearly secondary and subsidiary to the name itself and simply qualifies it”).
It is also well established that the suffix “.com” can be ignored for the purpose of identity/confusing similarity test.
Respectively, the disputed domain name is confusingly similar to Complainant’s earlier trademark.
As follows from the WHOIS records for the disputed domain, the Registrant of record is listed as Tech Admin, while Registrant Organization is designated as Virtualpoint. These or any other records in this case are devoid of any evidence indicating that Respondent is either commonly known under the disputed domain name, or holds any licensing rights. Previous Panels found that under such circumstances Respondent cannot have rights or legitimate interests under Policy ¶ 4(c)(ii). See M. Shanken Commc’ns v. WORLDTRAVELERSONLINE.COM, FA 740335 (Nat. Arb. Forum Aug. 3, 2006) (finding that the respondent was not commonly known by the <cigaraficionada.com> domain name under Policy ¶ 4(c)(ii) based on the WHOIS information and other evidence in the record).
The case records also show that the disputed domain name resolves to a webpage with hyperlinks reading “Hotels,” “Hotel Deals,” “Bed and Breakfast,” “Hotel Reservations,” and “Beach Hotels.” See Compl., at Attached Ex. 7.
In the past, panels have declined to find rights under Policy ¶¶ 4(c)(i) and (iii) where the respondent used a confusingly similar domain name to operate a website that displayed competing hyperlinks. See United Servs. Auto. Ass’n v. Savchenko, FA 1105728 (Nat. Arb. Forum Dec. 12, 2007) (“The disputed domain name, <usaa-insurance.net>, currently resolves to a website displaying Complainant’s marks and contains links to Complainant’s competitors. The Panel finds this to be neither a bona fide offering of goods or services pursuant to Policy ¶4(c)(i) nor a legitimate noncommercial or fair use pursuant to Policy ¶4(c)(iii).”).
In view of the aforesaid, the Panel finds that Complainant made a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii). Thus, the burden of proof shifts to Respondent to show it does have rights or legitimate interests.
Respondent builds its defense on the recent Cambridge.com case, see
Univ. of Cambridge v. Kirkland Holdings, D2015-1278 (WIPO October 5, 2015).
Particularly, Respondent states:
“As confirmed in the Cambridge.com decision, it is simply not possible to find that Respondent lacks rights or legitimate interests under such circumstances. See University of Cambridge v. Kirkland Holdings LLC, WIPO Case No. D2015-1278 (October 5, 2015) (“[T]he Panel emphasizes that the term “Cambridge” itself does not have a high degree of distinctiveness or originality, since it refers to geographical locations in the United Kingdom and the United States. Thus, the use of this term may not be forbidden to other companies, whether they are direct competitors of the Complainant, or active in other business branches.”).
Thus, the key argument is based on attacking Complainant’s trademark on the basis of fraud before the USPTO and geographic descriptiveness of the trademark itself.
Both parties go into lengthy discussions of this subject in their additional submissions. All the arguments concerning the geographic nature of the trademark must be dismissed by the Panel, as well as the accusation of committed fraud before the USPTO, since, as duly noted by Complainant’s counsel,
“Respondent’s attack on Complainant’s trademark on the basis of fraud and geographic descriptiveness is well outside the scope of UDRP proceedings, and prior UDRP panels have declined to consider the merits of such a defense. Prior panels acknowledge that the extensive written record and discovery required to make such a determination would vastly outpace the scope and intent of the UDRP. Moreover, such ex parte attacks are not within the purview of UDRP panels and are for the appropriate administrative body or judicial forum to determine. SPX Corporation v. Hevun Diversified Corporation, Case No. FA0609000791657 (NAF Nov. 13, 2006) (“Questions of trademark invalidity, including questions of whether a mark is primarily geographically descriptive or generic, are simply not within the purview of a UDRP proceeding and are best left for either court adjudication or inter-partes adjudication before appropriate governmental bodies having requisite jurisdiction and competence to handle such matters. Not only are such questions outside the very limited and focused jurisdiction afforded to UDRP panels under the Policy but moreover the summary and rather abbreviated nature of UDRP proceedings totally precludes the establishment of a fully developed factual record that must underlie the determination of such questions.”
Being convinced that geographical descriptiveness must preclude the finding of the lack of Respondent’s rights or legitimate interests in the disputed domain by the Panel, what Respondent either intentionally, or unintentionally overlooked is that it is not geographical descriptiveness that ultimately served as a ground for finding in favor of Respondent in the cited case, but the “modus operandi”, the way in which the website, to which the domain name resolved, was used.
In the cited case, Respondent had used the disputed domain name in the context of its travel and exchange-related business, offering information about education, accommodations, restaurants and courses etc. for interested consumers, which is not competitive with the services Complainant was offering. The use of the disputed domain name for business purposes began before any notification from Complainant regarding any possible illegal conduct by Respondent.
In addition, the Panel noted that the evidence presented show that the content of the website was not likely to misleadingly divert consumers or to tarnish the trademark at issue. There were no elements that would lead the user to make a direct connection between the service available on the website and Complainant, which was due to the fact that Respondent expressly informed, in the texts related to the University of Cambridge, that there was no link between the website and Complainant.
Unlike in the cited case, Respondent’s website resolves to competing hyperlinks, there is a likelihood that the user might associate Respondent’s website with the activities of Complainant.
Thus, the circumstances are quite different in both cases, and the Panel finds that Respondent failed to establish that it has rights or legitimate interests in the disputed domain name.
Therefore, the Panel finds that the second element of the Policy under paragraph 4(a)(ii) has been satisfied.
What becomes apparent from Respondent’ additional submission is that it no longer claims that the registration of the disputed domain name predates Complainant’s trademarks rights. Instead, the key focus shifts to developing further arguments illustrating that Complainant’s trademarks do not meet the requirements for the grant of protection, and accusing Complainant of fraud, manipulation of evidences and attempts to deceive the Panel. As already noted by the Panel in the discussions above, any allegations concerning non-registrability and fraud are not within its competence, since the UDRP Panel is not a proper Forum to address this sort of issues.
The Panel also notes that the Respondent has modified the DNS settings for the
domain name to re-direct the domain away from the earlier pay-per-click site to a blank parked page at <windcircle.com>.
Having faced this argument in Complainant’s additional submission, Respondent does not find any better way to rebut this, but to again attack Complainant relying on its previous arguments that Complainant made its first attempts to purchase the disputed domain name from Respondent 2.5 years ago (the argument which is not reliable, since there are no evidences on the record that Complainant was aware about the affiliation between the registrant of record in 2013, Captive Media, and Respondent. Moreover, it is only in Respondent’s response to complaint that this is brought to light by Respondent itself), and thus manipulated the data. According to Respondent, it didn’t keep the parking service live so that Complainant could not further manipulate the evidence.
Thus, Respondent decided to turn off the parking service, but, at the same time, it attached a declaration to its additional submission in which it represents how the page must have looked if one had not manipulated the evidences. To this end, Respondent allegedly “briefly turned on the parking service on his private IP address and then clicked on the ‘Hotels’ link as Complainant suggested”. According to Respondent, Supplemental Declaration of Dave Lahoti, Ex. A, shows that “the links are not to ‘popular hotels’ as Complainant speculated. Instead, the links are to general travel sites such as <booking.com/Hotels>, <search.yahoo.com>, <trivago.com>, and <whatscheaper.com>.”
The Panel views the fact that, under the circumstances, Respondent decides to conceal the actual look of its website as yet one more evidence of his operation in bad faith.
Based on the evidences in the case records, the Panel finds that the landing page related to the disputed domain name features links to sponsored ads for services in the hospitality industry, namely hotels, resorts, B&B’s, and restaurants competing with those of Complainant. The Panel also agrees that there is no ground for arguments over related search queries, since those were generated by the algorithm used by Respondent’s privacy service, and thus the content and/or sponsored links these search queries generate is relevant to the bad faith analysis, which in the present case shows that the domain name is also used to direct Internet users to competing links for profit. The relevance of the sponsored links cannot be rejected by an attempt to shift responsibility to the parking service provider as ultimate responsibility for the content of a “parked” website always lies with the registrant. See, e.g., Ashley Furniture Industries, Inc. v. Steve Olson a/k/a Beth Moser for Steve Olson / AZ Home Furniture, FA1622176 (Nat. Arb. Forum July 21, 2015) (“A respondent is always responsible for the content of a parked webpage.”).
As a summation of the aforesaid, the case records show that the domain name is used by Respondent to display hyperlinks to competing services and to create a likelihood of confusion for commercial gain.
Prior panels have found bad faith under Policy ¶ 4(b)(iii) where the resolving webpage displayed competing hyperlinks. See Univ. of Texas Sys. v. Smith, FA 1195696 (Nat. Arb. Forum July 7, 2008) (finding that using the resolving website to divert Internet users to the complainant’s competitors constituted bad faith registration and use under Policy ¶ 4(b)(iii)).
Prior panels have also found bad faith under Policy ¶ 4(b)(iv) where a likelihood of confusion for commercial gain existed. See Allianz of Am. Corp. v. Bond, FA 680624 (Nat. Arb. Forum June 2, 2006) (finding bad faith registration and use under Policy ¶ 4(b)(iv) where the respondent was diverting Internet users searching for the complainant to its own website and likely profiting).
Thus, the Panel finds that the domain name was registered and is being used in bad faith under Policy ¶¶ 4(b)(iii) and (iv).
Finally, the Panel cannot overlook the fact that Respondent has engaged in a pattern of bad faith registration and use. Respondent has already been subjected to more than one UDRP proceedings, resulting in adverse finding against it. Prior panels have found bad faith under Policy ¶ 4(b)(ii) where the respondent was party to prior UDRP proceedings. See Liberty Mut. Ins. Co. v. Bin g Glu, FA 1036129 (Nat. Arb. Forum Sept. 2, 2007) (holding prior UDRP proceedings were sufficient evidence of a pattern of bad faith registrations).
In view of the aforesaid, it is found that the third element of the Policy under paragraph 4(a)(iii) has been satisfied.
Reverse Domain Name Hijacking
Since Complainant has satisfied all of the elements of Policy ¶ 4(a), there are no grounds for Respondent’s allegations of reverse domain name hijacking. See World Wrestling Fed’n Entm’t, Inc. v. Ringside Collectibles, D2000-1306 (WIPO Jan. 24, 2001) (“Because Complainant has satisfied [all of] the elements of the Policy, Respondent’s allegation of reverse domain name hijacking must fail”).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <windcreek.com> domain name be TRANSFERRED from Respondent to Complainant.
Antonina Pakharenko-Anderson, Panelist
Dated: November 13, 2015
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