Splunk Inc. v. Jerome Mol / LEANDER
Claim Number: FA1601001658856
Complainant is Splunk Inc. (“Complainant”), represented by Pamela S. Chestek, North Carolina, USA. Respondent is Jerome Mol / LEANDER (“Respondent”), Netherlands.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <splunkmasters.net>, registered with Key-Systems GmbH.
The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.
David A. Einhorn appointed as Panelist.
Complainant submitted a Complaint to the Forum electronically on January 30, 2016; the Forum received payment on January 30, 2016.
On February 2, 2016, Key-Systems GmbH confirmed by e-mail to the Forum that the <splunkmasters.net> domain name is registered with Key-Systems GmbH and that Respondent is the current registrant of the name. Key-Systems GmbH has verified that Respondent is bound by the Key-Systems GmbH 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 February 3, 2016, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 23, 2016 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@splunkmasters.net. Also on February 3, 2016, 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 February 25, 2016, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed David A. Einhorn 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 owns the SPLUNK mark through its trademark registrations with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 3269249, registered July 24, 2007). Complainant uses the SPLUNK mark in connection with computer software. The addition of the generic term “masters” does not remove the disputed domain name from the realm of confusing similarity.
Respondent lacks rights or legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name nor has it been licensed or authorized to use the SPLUNK mark. Respondent has failed to provide a bona fide offering of goods or services, or a legitimate noncommercial or fair use of the disputed domain name. Rather, Respondent uses the disputed domain name in order to sell services related to Complainant and its products.
Respondent has registered and is using the disputed domain name in bad faith. Respondent uses the disputed domain name to disrupt and compete with Complainant by offering products similar to those of Complainant. Similarly, Respondent presumably commercially gains from such behavior. Respondent must have had knowledge of Complainant and its rights in the SPLUNK mark when registering the disputed domain name due to the obvious connection between Complainant and Respondent’s websites.
B. Respondent
Respondent failed to submit a Response in this proceeding. The Panel notes that Respondent registered the domain name on January 29, 2015.
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(f), 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 uses the SPLUNK mark in connection with computer software. Complainant claims to own the SPLUNK mark through its trademark registrations with the USPTO (e.g., Reg. No. 3269249, registered July 24, 2007). Previous panels have held, and this Panel similarly agrees, that a complainant’s registration with the USPTO is sufficient in establishing rights in a mark under Policy ¶ 4(a)(i). See Paisley Park Enters. v. Lawson, FA 384834 (Nat. Arb. Forum Feb. 1, 2005) (concluding that the complainant had established rights in the PAISLEY PARK mark under Policy ¶ 4(a)(i) through registration of the mark with the USPTO).
Complainant also argues that the disputed domain name is confusingly similar to Complainant’s SPLUNK mark, as Respondent has simply attached a generic term. Past panels have held that such additions are insignificant under Policy ¶ 4(a)(i). See Mead Johnson & Company, LLC v. Chau, FA 1497581 (Nat. Arb. Forum Jun. 18, 2013) (concluding that the addition of the generic term “coupons” did not remove the disputed domain name from the realm of confusing similarity). The Panel agrees that Respondent’s disputed domain name is confusingly similar to the SPLUNK mark per Policy ¶ 4(a)(i).
It is Complainant’s position that Respondent lacks rights or legitimate interests in the disputed domain name. In so arguing, Complainant posits that Respondent is not commonly known by the disputed domain name. Complainant notes that Respondent has been neither licensed nor authorized to use Complainant’s SPLUNK mark in any way. Further, Complainant points to the available WHOIS information, which lists “Jerome Mol” as registrant of the disputed domain name. Given the lack of evidence to infer otherwise, the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See IndyMac Bank F.S.B. v. Eshback, FA 830934 (Nat. Arb. Forum Dec. 7, 2006) (finding that the respondent failed to establish rights and legitimate interests in the <emitmortgage.com> domain name as the respondent was not authorized to register domain names featuring the complainant’s mark and failed to submit evidence that it is commonly known by the domain name).
Next, Complainant also argues that Respondent has failed to provide a bona fide offering of goods or services, or a legitimate noncommercial or fair use of the disputed domain name. Rather, Complainant argues that Respondent uses the disputed domain name to redirect Internet users to Respondent’s own website, which supposedly offers services similar to that of Complainant. The Panel agrees, and finds that Respondent has failed to provide 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 4(c)(iii), respectively.
Thus, Complainant has also satisfied Policy ¶ 4(a)(ii).
Complainant urges that Respondent has registered and is using the disputed domain name in bad faith. Complainant claims that Respondent’s use of the disputed domain name to redirect Internet users to its own website, which offers competing services and products to that of Complainant for Respondent’s own commercial gain, demonstrates bad faith under Policy ¶ 4(b)(iii) and Policy ¶ 4(b)(iv). Past panels have agreed with similar arguments, and this Panel so finds. See DatingDirect.com Ltd. v. Aston, FA 593977 (Nat. Arb. Forum Dec. 28, 2005) (“Respondent is appropriating Complainant’s mark to divert Complainant’s customers to Respondent’s competing business. The Panel finds this diversion is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iii).”); see also Am. Online, Inc. v. Fu, D2000-1374 (WIPO Dec. 11, 2000) (finding that the respondent violated Policy ¶ 4(b)(iv) by displaying the complainant’s mark on its website and offering identical services as those offered by the complainant).
Finally, Complainant argues that due to the obvious connection between Respondent’s website and Complainant’s business, Respondent must have had knowledge of Complainant’s mark when registering the disputed domain name. This Panel infers that Respondent had actual knowledge of Complainant's rights in the mark prior to registering the disputed domain name, supporting a finding of bad faith registration under Policy ¶ 4(a)(iii).
Thus, Complainant has also satisfied Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <splunkmasters.net> domain name be TRANSFERRED from Respondent to Complainant.
David A. Einhorn, Panelist
Dated: March 10, 2016
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