Sandhills Publishing Company v. Pavel Paul Ilii
Claim Number: FA1607001682122
Complainant is Sandhills Publishing Company (“Complainant”), represented by Kathryn M. Moore, Nebraska, USA. Respondent is Pavel Paul Ilii (“Respondent”), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <auction-time.com>, registered with GODADDY.COM, LLC.
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.
The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Complainant submitted a Complaint to the Forum electronically on June 30, 2016; the Forum received payment on July 6, 2016.
On July 1, 2016, GODADDY.COM, LLC confirmed by e-mail to the Forum that the <auction-time.com> domain name is registered with GODADDY.COM, LLC and that Respondent is the current registrant of the name. GODADDY.COM, LLC has verified that Respondent is bound by the GODADDY.COM, 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 July 6, 2016, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 26, 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@auction-time.com. Also on July 6, 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 August 2, 2016, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed the Honorable Charles K. McCotter, Jr. (Ret.) 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 a publisher that serves a variety of industries including trucking, agriculture, construction, and aviation. In connection with these industries, Complainant operates the <AuctionTime.com> website which connects buyers and sellers and assists in moving equipment at auction values. Complainant’s rights in the AUCTIONTIME mark stem from registration of the mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 3,770,878, registered Apr. 6, 2010). Respondent’s domain <auction-time.com> is confusingly similar to the AUCTIONTIME mark and the <AuctionTime.com> website through the addition of a hyphen.
Respondent has no rights or legitimate interests in the disputed domain name. Respondent has not been commonly known by the disputed domain name or acquired any trademark rights in the domain. Further, Respondent’s use of the domain, clearly demonstrates an intent to commercially benefit from impersonating Complainant.
Respondent has registered and is using the disputed domain name in bad faith. Respondent’s bad faith is evident from using the disputed domain name to impersonate Complainant and commercially benefit from internet users who mistakenly believe that Respondent’s website is affiliated with or sponsored by Complainant.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant, Sandhills Publishing Company, is a publisher that serves a variety of industries including trucking, agriculture, construction, and aviation. In connection with these industries, Complainant operates the <AuctionTime.com> website which connects buyers and sellers and assists in moving equipment at auction values. Complainant has rights in the AUCTIONTIME mark through registration with the USPTO (Reg. No. 3,770,878, registered Apr. 6, 2010). Respondent’s domain <auction-time.com> is confusingly similar to the AUCTIONTIME mark and the <AuctionTime.com> website.
Respondent, Pavel Paul Ilii, registered the <auction-time.com> domain name on
on January 29, 2016.
Respondent has no rights or legitimate interests in the <auction-time.com> domain name. Respondent has not been commonly known by the disputed domain name or acquired any trademark rights in the domain. Further, Respondent’s use of the domain shows an intent to commercially benefit from impersonating Complainant.
Respondent has registered and is using the <auction-time.com> domain name in bad faith. Respondent uses the disputed domain name to impersonate Complainant and commercially benefit from internet users who mistakenly believe that Respondent’s website is affiliated with or sponsored by Complainant.
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 (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.”).
Respondent’s disputed domain <auction-time.com> is confusingly similar to the AUCTIONTIME mark under Policy ¶ 4(a)(i). The disputed domain differs from the AUCTIONTIME mark by the addition of a hyphen and the generic top-level domain (“gTLD”) “.com.”
Respondent has not been commonly known by the disputed domain name under Policy ¶ 4(c)(ii) or acquired any trademark rights in the domain. The WHOIS information the <auction-time.com> domain name lists “Pavel Paul llii” as the registrant. See Instron Corp. v. Kaner, FA 768859 (Forum Sept. 21, 2006) (finding that the respondent was not commonly known by the disputed domain names because the WHOIS information listed “Andrew Kaner c/o Electromatic a/k/a Electromatic Equip't” as the registrant and there was no other evidence in the record to suggest that the respondent was commonly known by the domain names in dispute).
Respondent is not making a bona fide offering of goods or services or a legitimate noncommercial or fair use through the <auction-time.com> domain. Respondent’s domain resolves to a website that offers competing auction services. Panels have concluded that a respondent is making neither a bona fide offering of goods or services or a legitimate noncommercial or fair use where a potentially infringing domain is being used to offer competing services. See General Motors LLC v. MIKE LEE, FA 1659965 (Forum March 10, 2016) (finding that “use of a domain to sell products and/or services that compete directly with a complainant’s business does not constitute a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).”).
Respondent registered and is using the disputed domain name in bad faith. Respondent uses the domain to compete with services that Complainant offers, presumably for a commercial profit. Panels have found bad faith under Policy ¶ 4(b)(iv) where a respondent used a confusingly similar domain to operate a website that offered services or products similar to those offered by a complainant. See Identigene, Inc. v. Genetest Labs., D2000-1100 (WIPO Nov. 30, 2000) (finding bad faith where the respondent's use of the domain name at issue to resolve to a website where similar services are offered to Internet users is likely to confuse the user into believing that the complainant is the source of or is sponsoring the services offered at the site).
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <auction-time.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: August 10, 2016
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