Samherji hf. v. Oscar / Ossy & Co Ltd
Claim Number: FA1612001709094
Complainant is Samherji hf. ("Complainant"), represented by Sigurgeir Bįršarson of Lex Law Offices, Iceland. Respondent is Oscar / Ossy & Co Ltd ("Respondent"), Nigeria.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <icefresh.us>, registered with PDR Ltd. d/b/a PublicDomainRegistry.com.
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 E. Sorkin as Panelist.
Complainant submitted a Complaint to the Forum electronically on December 22, 2016; the Forum received payment on December 22, 2016.
On December 23, 2016, PDR Ltd. d/b/a PublicDomainRegistry.com confirmed by email to the Forum that the <icefresh.us> domain name is registered with PDR Ltd. d/b/a PublicDomainRegistry.com and that Respondent is the current registrant of the name. PDR Ltd. d/b/a PublicDomainRegistry.com has verified that Respondent is bound by the PDR Ltd. d/b/a PublicDomainRegistry.com registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with the U.S. Department of Commerce's usTLD Dispute Resolution Policy (the "Policy").
On December 30, 2016, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 19, 2017 by which Respondent could file a Response to the Complaint, via email to all entities and persons listed on Respondent's registration as technical, administrative, and billing contacts, and to postmaster@icefresh.us. Also on December 30, 2016, the Written Notice of the Complaint, notifying Respondent of the email 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 1, 2017, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed David E. Sorkin 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 to the usTLD Dispute Resolution Policy ("Rules"). Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the usTLD Policy, usTLD 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 an international seafood company based in Iceland. Complainant uses ICEFRESH, ICE FRESH SEAFOOD, and related marks in connection with its business. Complainant owns various registrations for these marks in Iceland and other jurisdictions, with registration dates as early as 1993.
Respondent registered the disputed domain name <icefresh.us> in December 2016. The domain name does not resolve to a website, but it has been used within an email address to impersonate Complainant in a fraudulent payment request sent to one of Complainant's customers. Complainant states that Respondent is not affiliated with or related to Complainant in any way, and is not licensed or authorized to use Complainant's mark. On these grounds Complainant contends that the disputed domain name is confusingly similar to its marks; that Respondent has no rights or legitimate interests in respect of the disputed domain name; and that Respondent registered and is using the disputed domain name in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that the disputed domain name is identical or confusingly similar to a mark in which Complainant has rights; that Respondent lacks rights or legitimate interests in respect of the disputed domain name; and that the disputed domain name was registered or is 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 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 or is being used in bad faith.
Given the similarity between the Uniform Domain Name Dispute Resolution Policy ("UDRP") and the usTLD Policy, the Panel will draw upon decisions rendered under the UDRP as applicable in rendering its decision.
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.").
The disputed domain name <icefresh.us> corresponds to Complainant's ICEFRESH mark and the distinctive portion of Complainant's ICE FRESH SEAFOOD mark, adding only the ".us" top-level domain. It is thus identical or confusingly similar to Complainant's marks. See, e.g., Samherji hf. v. Vista Print Technologies Ltd., DCO2014-0030 (WIPO Dec. 30, 2014) (finding <icefresh.co> identical to ICEFRESH and confusingly similar to ICEFRESH SALMON); Illycaffe S.p.A. v. Esteban c/o Esteban Remecz, FA 1291938 (Forum Dec. 22, 2009) (finding <illy.us> identical to ILLY, and finding Italian trademark registration sufficient). The Panel so finds.
Under the Policy, the Complainant must first make a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain name, and then the burden shifts to the Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm't Commentaries, FA 741828 (Forum Aug. 18, 2006).
The disputed domain name corresponds to Complainant's mark; it was registered without authorization from Complainant; and its only apparent use has been in connection with what appears to be a fraudulent phishing scheme. See Brambles Ltd. v. Martin Lee, FA 1701695 (Forum Dec. 7, 2016) (finding a lack of rights or legitimate interests in similar circumstances). Complainant has made a prima facie case that Respondent lacks rights and legitimate interests in the domain name, and Respondent has failed to come forward with any evidence of such rights or interests. Accordingly, the Panel finds that Complainant has sustained its burden of proving that Respondent lacks rights or legitimate interests in respect of the disputed domain name.
Finally, Complainant must show that the disputed domain name was registered and has been used in bad faith. Under paragraph 4(b)(iii) of the Policy, bad faith may be shown by evidence that Respondent registered the disputed domain name "primarily for the purpose of disrupting the business of a competitor." Under paragraph 4(b)(iv), bad faith may be shown by evidence that "by using the domain name, [Respondent] intentionally attempted to attract, for commercial gain, Internet users to [Respondent's] web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of [Respondent's] web site or location or of a product or service on [Respondent's] web site or location."
Respondent's registration and use of a domain name corresponding to Complainant's mark, with the apparent intention to pass itself off as Complainant and thereby defraud one or more of Complainant's customers, is indicative of bad faith under both of these provisions. See Brambles Ltd. v. Martin Lee, supra (finding bad faith under similar circumstances). The apparent lack of any nexus between Respondent and the United States, as required by the usTLD Nexus
Requirements Policy, is also suggestive of bad faith. See La-Z-Boy Inc. v. Mohammed Iqbal, FA 1355601 (Forum Dec. 21, 2010); Illycaffe S.p.A. v. Esteban c/o Esteban Remecz, supra. The Panel finds that the disputed domain name was registered and is being used in bad faith.
Having considered the three elements required under the usTLD Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <icefresh.us> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: February 3, 2017
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