Research Now Group, Inc. v. Amy Hill
Claim Number: FA1703001723138
Complainant is Research Now Group, Inc. (“Complainant”), represented by Denis V. Shamo of Baker & McKenzie LLP, Texas, USA. Respondent is Amy Hill (“Respondent”), Massachusetts, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <valuedopinions.us>, registered with PDR Ltd. d/b/a PublicDomainRegistry.com.
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 March 22, 2017; the Forum received payment on March 22, 2017.
On March 23, 2017, PDR Ltd. d/b/a PublicDomainRegistry.com confirmed by e-mail to the Forum that the <valuedopinions.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 24, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 13, 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@valuedopinions.us. Also on March 24, 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 April 21, 2017, 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 usTLD 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 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, Research Now Group, Inc., is a major customer research firm based in Plano, Texas. Complainant uses the VALUED OPINIONS mark in connection with this business. Complainant has rights in the VALUED OPINIONS mark based upon registration with the United States Patent and Trademark Office (“USPTO”) (e.g. Reg. No. 4,128,422, registered Apr. 17, 2012). See Compl., at Attached Annex 5. Respondent’s domain name, <valuedopinions.us>, is confusingly similar to Complainant’s mark as it fully incorporates the mark in its entirety—less the space—and adds the country-code top-level domain (“ccTLD”) “.us.”
Respondent has no rights or legitimate interests in the <valuedopinions.us> domain name. Respondent is not commonly known by the domain name, nor has Complainant authorized Respondent to register a domain name containing the VALUED OPINIONS mark. No fact within the record reflects a finding that Respondent has rights in a mark identical to the disputed domain name. Respondent has failed to use <valuedopinions.us> in connection with a bona fide offering of goods or services, or a legitimate noncommercial or fair use. Instead, the disputed domain name resolves to an inactively held domain parking page that lists <valuedopinions.us> for sale for “an asking price of 9999 USD.” See Compl., at Attached Annex 6.
Respondent registered and/or has used <valuedopinions.us> in bad faith. Respondent had constructive knowledge of Complainant’s VALUED OPINIONS mark at the time of registration. Respondent’s sole use of the resolving page has been to offer the domain for sale in excess of Respondent’s out-of-pocket costs.
B. Respondent
Respondent failed to submit a Response in this proceeding. The disputed domain name, <valuedopinions.us>, was registered September 12, 2016
The Panel finds that the disputed domain name is confusingly similar to Complainant’s valid and subsisting trademark; that Respondent has no rights or legitimate interests in or to the disputed domain name; and 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 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.”).
The Panel finds that there can be no doubt that the disputed domain name is confusingly similar to Complainant’s valid and subsisting trademark. Complainant has made an adequate showing of its rights and interests in and to that trademark. Respondent arrives at the disputed domain name by incorporating the mark in its entirety—less the space—and adding the country-code top-level domain (“ccTLD”) “.us.” This is insufficient to distinguish the disputed domain name from Complainant’s trademark.
As such, the Panel finds that the disputed domain name is confusingly similar to Complainant’s trademark.
The Panel further finds that Respondent has no rights or legitimate interests in and to the disputed domain name. Respondent has no license or permission to register the disputed domain name. Respondent is not commonly known by the disputed domain name. The WHOIS information on record lists the Registrant as “Amy Hill.”
As such, the Panel finds that Respondent is not commonly known by the disputed domain name and that the record is devoid of any information that would imply otherwise.
Complainant argues that Respondent has failed to use <valuedopinions.us> in connection with a bona fide offering of goods or services, or a legitimate noncommercial or fair use. Instead, the disputed domain name resolves to an inactively held domain parking page that lists <valuedopinions.us> for sale for “an asking price of 9999 USD.” See Compl., at Attached Annex 6. Inactive holding of a domain name supports a finding that a respondent has not used a domain for a bona fide offering or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(ii) & (iv). See Bloomberg L.P. v. SC Media Servs. & Info. SRL, FA 296583 (FORUM Sept. 2, 2004) (“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)].”).
Accordingly, the Panel finds that Respondent has failed to use <valuedopinions.us> in connection with a bona fide offering of goods or services, or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(ii) & (iv).
The Panel further finds that Respondent’s offer to sell the disputed domain name is evidence of its lack of rights and legitimate interests. Advertisement for sale of a domain name containing a complainant’s mark can further support a finding that a respondent lacks rights or legitimate interests in the domain name. 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)(ii).”). The disputed domain name resolves to a website offering the domain name for sale. See Compl., at Attached Annex 6.
The Panel therefore finds under Policy ¶ 4(a)(ii) that Respondent lacks rights and legitimate interests in the disputed domain name.
The Panel further finds that it appears that Respondent has solely registered the disputed domain name, <valuedopinions.us>, to sell it in excess of out-of-pocket costs. Registration of a domain name containing a complainant’s mark for the purpose of sale can indicate bad faith per Policy ¶ 4(b)(i). See Citigroup Inc. v. Kevin Goodman, FA 1623939 (Forum July 11, 2015) (holding that the evidence showed that the respondent registered the disputed domain name primarily for the purpose of transferring it for a profit and demonstrates the respondent’s bad faith registration and use of the disputed domain name pursuant to Policy ¶ 4(b)(i).). Additionally, Complainant alleges that the cost of the domain, 9999 USD, is in excess of out-of-pocket costs. See Compl., at Attached Annex 6. Sale of a domain name in excess of out-of-pocket costs can further support a finding that a respondent registered and used a domain name in bad faith 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); see also Campmor, Inc. v. GearPro.com, FA 197972 (Forum Nov. 5, 2003) (“Respondent registered the disputed domain name and offered to sell it to Complainant for $10,600. This demonstrates bad faith registration and use pursuant to Policy ¶ 4(b)(i).”).
Accordingly, the Panel finds that Respondent has registered and used the domain name in bad faith per Policy ¶ 4(b)(i).
Complainant also asserts that its trademark registration for the VALUED OPINIONS mark existed well before the registration of the disputed domain name. As such and because there is no evidence to the contrary in the record, the Panel concludes that Respondent had actual notice of Complainant’s trademark and its rights and interests thereto.
Complainant also contends that Respondent’s bad faith is evident from its failure to make an active use of the disputed domain name. Failure to make an active use of a disputed domain name can be evidence of 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). The disputed domain name resolves only to a parked page offering the disputed domain name for sale. See Compl., at Attached Annex 6. Complainant contends that this does not amount to an active use. The Panel agrees and finds Respondent to have acted in bad faith per 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 <valuedopinions.us> domain name transferred from Respondent to Complainant.
Kenneth L. Port, Panelist
Dated: April 22, 2017
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