ETI Sound Systems, Inc., a California corporation d/b/a Boutique Amps Distribution v. Arctic Marketing / Arctic Marketing Ltd
Claim Number: FA1602001661877
Complainant is ETI Sound Systems, Inc., a California corporation d/b/a Boutique Amps Distribution (“Complainant”), represented by Mark B. Mizrahi of Wolf, Rifkin, Shapiro, Schulman & Rabkin, LLP, California, USA. Respondent is Arctic Marketing / Arctic Marketing Ltd (“Respondent”), Malta.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <65amps.com>, registered with Wild West Domains, 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.
Kenneth L. Port as Panelist.
Complainant submitted a Complaint to the Forum electronically on February 19, 2016; the Forum received payment on February 19, 2016.
On February 22, 2016, Wild West Domains, LLC confirmed by e-mail to the Forum that the <65amps.com> domain name is registered with Wild West Domains, LLC and that Respondent is the current registrant of the name. Wild West Domains, LLC has verified that Respondent is bound by the Wild West Domains, 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 February 24, 2016, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 15, 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@65amps.com. Also on February 24, 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 March 18, 2016, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Kenneth L. Port as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant uses the 65 AMPS trademark in connection with its business in the manufacture of ring guitars, amplifiers, and cabinets. Complainant has rights in the 65 AMPS mark through its registration with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 4,487,143, registered on February 25, 2014). See Compl., at Attached Ex. C. Respondent’s <65amps.com> domain name is identical to the mark as it incorporates the mark in its entirety while removing the space and adding the generic top level domain (“gTLD”) “.com.”
Respondent does not have rights or legitimate interests in or to the disputed domain name. Respondent is not commonly known by the domain name, nor is Respondent a licensee of Complainant. Further, the disputed domain name resolves to a blog promoting online gambling websites. Also, Complainant has previously owned the registration for the disputed domain name.
Respondent has engaged in bad faith registration and use of the disputed domain name. Respondent uses the resolving website to capitalize on the confusion of Internet users as to Respondent’s identity in order to profit commercially. Complainant previously owned the <65amps.com> domain name and Respondent only acquired it when Complainant inadvertently allowed the registration to lapse. Complainant attempted to purchase the domain name back from Respondent, however, Respondent asked for compensation in excess of out-of-pocket costs.
B. Respondent
Respondent failed to submit a Response in this proceeding. The <65amps.com> domain name was acquired on July 19, 2015.
The Panel finds that the disputed domain name is confusingly similar to Complainant’s registered trademark; that the Respondent has no rights or legitimate interests in or to the disputed domain name, and that the Respondent has engaged in bad faith use and registration of the disputed domain name.
Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable."
Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:
(1) the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(2) Respondent has no rights or legitimate interests in respect of the domain name; and
(3) the domain name has been registered and is being used in bad faith.
In view of Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representations pursuant to paragraphs 5(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.”).
The Panel finds that there can be little doubt that the disputed domain name is confusingly similar to the Complainant’s registered and subsisting trademark. To arrive at the disputed domain name, the Respondent merely deleted a space and added the gTLD “.com” to the trademark. In such a well-pleaded case, it is obvious that the disputed domain name is confusingly similar to the registered trademark.
As such, the panel finds the disputed domain name to be confusingly similar to Complainant’s trademark.
Equally obvious is the fact that the Respondent has no rights or legitimate interests in or to the disputed domain name. It is not commonly known by the disputed domain name and it has no permission to register the disputed domain name. The WHOIS information lists “Wild West Domains, LLC” as Registrant. Respondent has failed to provide further evidence to indicate being commonly known by the disputed domain name.
As such, the Panel finds that the Respondent has no rights or legitimate interests in or to the disputed domain name.
The Panel finds that the Respondent has registered and is using the disputed domain name in bad faith under Policy ¶ 4(a)(iii). Complainant apparently contacted the Respondent regarding its lapsed domain name that Respondent had registered to buy it back. Respondent demanded $10,000 for the disputed domain name. Attached Exhibits O, P, and Q demonstrate this exchange. Such an offer to sell a domain name in excess of out of pocket expenses is presumptive bad faith under the Policy.
As such, the Panel finds that the Respondent has engaged in bad faith use and registration of the disputed domain name.
Further, Respondent has displayed bad faith under Policy ¶ 4(b)(iv) by attempting to commercially profit from a likelihood of confusion. Internet users are likely to be confused as to the source or origin of the resolving webpage. Respondent apparently is profiting in the process by linking to online casinos and other online gaming websites. See Compl., at Attached Exs. M-N (clickable “CasinoJEFE” banner which redirects Internet users to online gaming website).
As such, the Panel finds that the Respondent has created confusion in the minds of Internet users regarding the source or origin of the disputed domain name; therefore, the Panel finds that the Respondent has engaged in bad faith use and registration of the disputed domain name.
Additionally, Complainant alleges that it previously owned the registration for the <65amps.com> domain name, and that Respondent only acquired it when Complainant inadvertently allowed its registration to lapse. Complainant asserts that it held the registration until its expiration in June of 2015, at which point Respondent immediately purchased it. Past panels have found that when a complainant has previously used a disputed domain name, subsequent use by anyone else indicates bad faith, unless there is evidence to the contrary. See InTest Corp. v. Servicepoint, FA 95291 (Nat. Arb. Forum Aug. 30, 2000) (“Where the domain name has been previously used by the Complainant, subsequent registration of the domain name by anyone else indicates bad faith, absent evidence to the contrary.”). Further, panels have found that purchasing a domain immediately after a complainant has failed to renew it is evidence of bad faith. See RH-Interactive Jobfinance v. Mooburi Servs., FA 137041 (Nat. Arb. Forum Jan. 16, 2003) (finding that the respondent’s registration of the <jobfinance.com> domain name “immediately after Complainant failed to timely renew the domain name registration” was evidence of bad faith).
Accordingly, the Panel finds that Respondent registered and uses the <65amps.com> domain name in bad faith pursuant to Policy ¶ 4(a)(iii).
Respondent has engaged a privacy service and in doing so withholds identifying information. The consensus view amongst panels is that use of a privacy service, without more, cannot reach the threshold of bad faith registration and use. See WWF-World Wide Fund for Nature aka WWF International v. Moniker Online Services LLC and Gregory Ricks, D2006-0975 (WIPO November 1, 2006) (finding use of proxy registration service does not of itself indicate bad faith; there are many legitimate reasons for proxy registration services); see also Divex Limited v. ZJ, Sam Chang and Tim NG, D2007-0861 (WIPO September 21, 2007) (finding privacy services may be justified by the need to avoid spam and identity theft). However, the totality of the circumstances which surround a respondent’s engagement of a privacy service may give rise to a finding of bad faith registration and use. See, e.g., HSBC Finance Corporation v. Clear Blue Sky Inc. and Domain Manager, D2007-0062 (WIPO June 4, 2007) (finding a change of privacy service after notice of complaint indicative of bad faith); see also Sermo, Inc. v. CatalystMD, LLC, D2008-0647 (WIPO July 2, 2008) (stating that use of privacy shield can be “treated as evidence of bad faith . . . when serial registrants use privacy shields to mask each registrant’s actual date of registration”).
The Panel finds that, given the totality of the circumstances, Respondent has utilized a privacy shield in a manner which materially adversely affects or obscures the facts of this proceeding. As such, the Panel finds that Respondent has registered and used the disputed domain name in bad faith under Policy ¶ 4(a)(iii).
Finally, given the totality of the circumstances, it is apparent to the Panel that the Respondent proceeded to register the disputed domain name with full knowledge of Complainant’s prior rights in or to its registered and subsisting trademark.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be granted.
Accordingly, it is Ordered that the <65amps.com> domain name be transferred from the Respondent to the Complainant.
Kenneth L. Port, Panelist
Dated: March 23, 2016
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