Micron Consumer Products Group, Inc. v. aloe plant / aloevera
Claim Number: FA1701001710752
Complainant is Micron Consumer Products Group, Inc. (“Complainant”), represented by John C. Cain of Fleckman & McGlynn, PLLC, Texas, USA. Respondent is aloe plant / aloevera (“Respondent”), India.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <lexarphotorecovery.org>, registered with Name.com, Inc.
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.
Bruce E. Meyerson as Panelist.
Complainant submitted a Complaint to the Forum electronically on January 4, 2017; the Forum received payment on January 4, 2017.
On January 5, 2017, Name.com, Inc. confirmed by e-mail to the Forum that the <lexarphotorecovery.org> domain name is registered with Name.com, Inc. and that Respondent is the current registrant of the name. Name.com, Inc. has verified that Respondent is bound by the Name.com, Inc. 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 January 6, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 26, 2017 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@lexarphotorecovery.org. Also on January 6, 2017, 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 3, 2017, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Bruce E. Meyerson 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
1. Complainant provides goods and services related to computer memory products and image file recovery. Complainant uses the LEXAR mark in conjunction with its business practices.
2. Complainant registered the LEXAR mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 2,905,053, registered Nov. 23, 2004).
3. Respondent’s <lexarphotorecovery.org> domain name[1] is confusingly similar to Complainant’s LEXAR mark because it uses the mark in its entirety, adding the descriptive term “photorecovery” and the “.org” generic top-level domain (“gTLD”). Specifically, Respondent’s use of “photorecovery” arguably shows a relationship to Complainant’s products and services.
4. Respondent does not have a right or legitimate interest in <lexarphotorecovery.org>. Respondent is not commonly known by the domain name. Complainant has not authorized or licensed Respondent to use the LEXAR mark in any respect, nor is Respondent affiliated with Complainant.
5. Respondent has not made a bona fide offering of goods and services, or a legitimate non-commercial or fair use of the domain name. Respondent’s <lexarphotorecovery.org> domain name resolves to a webpage that sells computer software products in direct competition with Complainant, presumably for Respondent’s profit.
6. Respondent registered and is using <lexarphotorecovery.org> in bad faith. The domain name directs internet users to a webpage offering products and services in direct competition with Complainant.
7. Respondent registered <lexarphotorecovery.org> with constructive and/or actual notice of Complainant and its rights to the LEXAR mark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant holds trademark rights for the LEXAR mark. Respondent’s domain name is confusingly similar to Complainant’s LEXAR mark. Complainant has established that Respondent lacks rights or legitimate interests in the use of the <lexarphotorecovery.org> domain name and that Respondent registered and uses the domain name 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 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.”).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(i).
Complainant alleges that Respondent holds no rights or legitimate interests in the <lexarphotorecovery.org> domain name. This allegation must be supported with a prima facie showing by Complainant under Policy ¶ 4(a)(ii). After a complainant successfully makes a prima facie case, a respondent is faced with the burden of proving it does have rights or legitimate interests in the domain name. In Swedish Match UK Ltd. v. Admin, Domain, FA 873137 (Nat. Arb. Forum Feb. 13, 2007), the panel held that when a complainant produces a prima facie case, the burden of proof then shifts to the respondent to demonstrate its rights or legitimate interests in the domain name under Policy ¶ 4(c); see also Compagnie Generale des Matieres Nucleaires v. Greenpeace Int’l, D2001-0376 (WIPO May 14, 2001) (“For the purposes of this sub paragraph, however, it is sufficient for the Complainant to show a prima facie case and the burden of proof is then shifted on to the shoulders of Respondent. In those circumstances, the common approach is for respondents to seek to bring themselves within one of the examples of paragraph 4(c) or put forward some other reason why they can fairly be said to have a relevant right or legitimate interests in respect of the domain name in question.”). The Panel holds that Complainant has made a prima facie case.
The Panel finds Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant asserts that Respondent registered and is using <lexarphotorecovery.org> in bad faith. As noted above, the domain name resolves to a webpage offering photo recovery software in direct competition with Complainant. Complainant claims that the domain name attracts internet users to a webpage offering products and services in direct competition with Complainant, thereby disrupting its business. In comparable situations, it has been found that such conduct demonstrates bad faith under Policy ¶ 4(b)(iii). Lambros v. Brown, FA 198963 (FORUM Nov. 19, 2003). Therefore, the Panel agrees that Respondent registered and is using <lexarphotorecovery.org> in bad faith under Policy ¶ 4(b)(iii).
Finally, Complainant claims that Respondent registered <lexarphotorecovery.org> with actual notice of Complainant and its rights to the LEXAR mark. Because the domain name contains Complainant’s mark in its entirety along with a word descriptive of Complainant’s business, the Panel easily concludes that Respondent registered the <lexarphotorecovery.org> domain name with knowledge of Complainant’s rights and therefore in bad faith according to Policy ¶ 4(a)(iii). See Immigration Equality v. Brent, FA 1103571 (FORUM Jan. 11, 2008) ("That Respondent proceeded to register a domain name identical to, and with prior knowledge of Complainant's mark is sufficient to prove bad faith registration and use under 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 <lexarphotorecovery.org> domain name be TRANSFERRED from Respondent to Complainant.
Bruce E. Meyerson, Panelist
Dated: February 7, 2017
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