Research Now Group, Inc. v. Christine K. Hoyer / Four Leaf Inc.
Claim Number: FA1703001723137
Complainant is Research Now Group, Inc. (“Complainant”), represented by Denis V. Shamo of Baker & McKenzie LLP, Texas, USA. Respondent is Christine K. Hoyer / Four Leaf Inc. (“Respondent”), Massachusetts, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <researchnow.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.
Bruce E. Meyerson as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on March 22, 2017; the the National Arbitration Forum received payment on March 22, 2017.
On March 23, 2017, PDR Ltd. d/b/a PublicDomainRegistry.com confirmed by e-mail to the National Arbitration Forum that the <researchnow.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 March 23, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 12, 2017, by which Respondent could file a Response to the Complaint, was transmitted to Respondent via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@researchnow.us. Also on March 23, 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 National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On April 20, 2017, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration 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 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 National Arbitration 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, Research Now Group, Inc., is a provider of market research services. In connection with this business, Complainant uses the RESEARCH NOW mark to promote and provide these services worldwide. Complainant has rights in the RESEARCH NOW mark based upon registration with the United States Patent and Trademark Office (“USPTO”) (e.g. Reg. No. 4,025,122, registered Sept. 13, 2011).
2. Respondent’s <researchnow.us>[1] domain name is identical or confusingly similar to the Complainant’s RESEARCH NOW mark, as the domain name contains the mark in its entirety, less the space, merely omitting the space in the mark and appending the country code top level domain (“ccTLD”) “.us.”
3. Respondent has no rights or legitimate interests in the <researchnow.us> domain name. Respondent is not commonly known by the domain name nor has Respondent been authorized by Complainant to use the RESEARCH NOW mark in a domain name. Nothing in the record indicates that Respondent has rights in a mark identical to the <researchnow.us> domain name.
4. Further, Respondent is not making a bona fide offering of goods or services with the domain name, nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(ii) and (iv), respectively. Instead, the domain name resolves to a parked page which advertises that the domain name is available for sale.
5. Respondent has registered and/or used the <researchnow.us> domain name in bad faith. Respondent is offering the domain name for sale for an amount far in excess of out-of-pocket registration costs, which is evidence of bad faith per Policy ¶ 4(b)(i).
6. Also, Respondent’s registration of a domain name identical to Complainant’s mark is prima facie evidence of bad faith. Further, Respondent has failed to make an active use of the <researchnow.us> domain name. Finally, Respondent clearly had at least constructive knowledge of Complainant’s mark at the time it registered the domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant holds trademark rights for the RESEARCH NOW mark. Respondent’s domain name is confusingly similar to Complainant’s RESEARCH NOW mark. Complainant has established that Respondent lacks rights or legitimate interests in the use of the <researchnow.us> 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 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 UDRP precedent 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.”).
Complainant has rights in the RESEARCH NOW mark based upon registration of the mark with the USPTO (e.g. Reg. No. 4,025,122, registered Sept. 13, 2011). See Haas Automation, Inc. v. Jim Fraser, FA 1627211 (Forum Aug. 4, 2015) (finding that Complainant’s USPTO registrations for the HAAS mark sufficiently demonstrate its rights in the mark under Policy ¶ 4(a)(i)). The Panel therefore holds that Complainant’s registration of the RESEARCH NOW mark with the USPTO is sufficient to establish rights in the mark under Policy ¶ 4(a)(i).
Complainant next claims that Respondent’s <researchnow.us> is identical or confusingly similar to Complainant’s RESEARCH NOW mark, as the domain name contains the mark in its entirety—less the space—and merely appends the ccTLD “.us.” Omission of a space and addition of a ccTLD are both irrelevant to a Policy ¶ 4(a)(i) analysis for confusing similarity. See Health Republic Insurance Company v. Gustavo Winchester, FA 1622089 (Forum July 7, 2015) (finding, “Domain name syntax requires TLDs. Domain name syntax prohibits spaces. Therefore, omitted spacing and adding a TLD must be ignored when performing a Policy ¶4(a)(i) analysis.”); see also Farouk Systems, Inc. v. Jack King / SLB, FA 1618704 (Forum June 19, 2015) (finding, “The ccTLD “.us” designation is inconsequential to a Policy ¶ 4(a)(i) analysis.”). The Panel finds the <researchnow.us> domain name to be identical to the RESEARCH NOW mark per Policy ¶ 4(a)(i).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(i).
Complainant alleges that Respondent holds no rights or legitimate interests in the <researchnow.us> 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 (Ho Hyun Nahm 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.
Complainant argues that Respondent has no rights or legitimate interests in <researchnow.us> as Respondent is not commonly known by the domain name, nor has Complainant authorized Respondent to use the RESEARCH NOW mark in any way. Where a response is lacking, WHOIS information can support a finding that a respondent is not commonly known by the domain name at issue. See Chevron Intellectual Property LLC v. Fred Wallace, FA1506001626022 (Forum July 27, 2015) (finding that the respondent was not commonly known by the <chevron-europe.com> domain name, as the WHOIS information named “Fred Wallace” as registrant of the disputed domain name). The WHOIS information of record identifies Respondent as “Christine K. Hoyer” with “Four Leaf, Inc.” Additionally, there is nothing in the record to indicate that Respondent had been authorized to register a domain name using Complainant’s mark. See Navistar International Corporation v. N Rahmany, FA1505001620789 (Forum June 8, 2015) (finding that the respondent was not commonly known by the disputed domain name where the complainant had never authorized the respondent to incorporate its NAVISTAR mark in any domain name registration). The Panel therefore finds under Policy ¶ 4(c)(iii) that Respondent has not been commonly known by the <researchnow.us> domain name.
Complainant further argues Respondent’s lack of rights or legitimate interests in <researchnow.us> is shown by the failure to use the name for a bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, the domain name resolves to a parked page merely offering the domain name for sale. Failure to make an active use of a domain name is not indicative of rights or legitimate interests per Policy ¶¶ 4(c)(ii) or (iv). See Hewlett-Packard Co. v. Shemesh, FA 434145 (Forum Apr. 20, 2005) (“The Panel finds that the [failure to make an active use] of a domain name that is identical to Complainant’s mark is not a bona fide offering of goods or services pursuant to [Policy ¶ 4(c)(ii)] and it is not a legitimate noncommercial or fair use of the domain name pursuant to [Policy ¶ 4(c)(iv)].”). The Panel therefore finds that Respondent lacks rights and legitimate interests in the <researchnow.us> domain name pursuant to Policy ¶¶ 4(c)(ii) and (iv) for failure to make an active use of the name.
Complainant also contends that Respondent’s offering of <researchnow.us> for sale is further evidence of its lack of rights or legitimate interests. An attempt to sell a domain name can be evidence of a respondent’s lack of rights or legitimate interests per Policy ¶4(a)(iii). See Enterprise Holdings, Inc. v. Huang Jia Lin, FA1504001614086 (Forum May 25, 2015) (“Accordingly, the Panel finds that Respondent’s general attempt to sell the disputed domain name is further evidence of Respondent’s lack of rights and legitimate interests under [Policy ¶ 4(a)(iii)].”). The resolving website offers the disputed domain name for sale for $9,999.00. The Panel therefore finds Respondent lacks rights and legitimate interests in the <researchnow.us> domain name per Policy ¶ 4(c)(iii).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant contends that Respondent’s soliciting of bids for <researchnow.us> is evidence that Respondent registered the domain name for the sole purpose of selling it to the highest bidder and is evidence of bad faith. A general offer to sell a domain name for an amount in excess of out-of-pocket registration costs can be evidence of bad faith registration and/or use pursuant to Policy ¶ 4(b)(i). See George Weston Bakeries Inc. v. McBroom, FA 933276 (Forum Apr. 25, 2007) (concluding that the respondent registered and was using the <gwbakeries.mobi> domain name in bad faith according to Policy ¶ 4(b)(i) where it offered it for sale for far more than its estimated out-of-pocket costs it incurred in initially registering the disputed domain name). The Panel therefore finds Respondent registered and or used the <researchnow.us> domain name in bad faith per Policy ¶ 4(b)(i).
Complainant asserts that Respondent had notice of Complainant’s rights in the RESEARCH NOW mark prior to the registration of <researchnow.us> because Respondent included the entire mark in the <researchnow.us> domain name. Complainant asserts that because the domain name consists entirely of Complainant’s mark and a ccTLD, it is apparent that Respondent had actual knowledge of the mark. The Panel agrees and concludes that Respondent actually knew of Complainant’s rights and therefore engaged in bad faith under Policy ¶ 4(a)(iii). See, e.g., Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum Feb. 6, 2014) (“The Panel notes that although the UDRP does not recognize “constructive notice” as sufficient grounds for finding Policy ¶ 4(a)(iii) bad faith, the Panel here finds actual knowledge through the name used for the domain and the use made of it.”).
Complainant also contends that Respondent has failed to make an active use of <researchnow.us>, which is further evidence of Respondent’s bad faith. Failure to make an active use of a domain name can be evidence of a respondent’s bad faith per Policy ¶ 4(a)(iii). See Am. Broad. Cos., Inc. v. Sech, FA 893427 (Forum Feb. 28, 2007) (concluding that the respondent’s failure to make active use of its domain name in the three months after its registration indicated that the respondent registered the disputed domain name in bad faith). Complainant has shown that the domain name resolves to a website that is being used for no other reason than to offer the domain name for sale. Panel agrees that this amounts to bad faith.
The Panel finds Complainant has satisfied Policy ¶ 4(a)(iii).
Having established all three elements required under the usTLD Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <researchnow.us> domain name be TRANSFERRED from Respondent to Complainant.
Bruce E. Meyerson Panelist
Dated: May 1, 2017
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page