URS DEFAULT DETERMINATION
Add2Net, Inc. v. email biz pvt ltd
Claim Number: FA1706001734986
DOMAIN NAME
<lunarpages.xyz>
PARTIES
| Complainant: Add2Net, Inc. of Orange, CA, United States of America | |
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Complainant Representative: Cohen Business Law Group, apc
J. Cohen of Los Angeles, CA, United States of America
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| Respondent: email biz pvt ltd anshul goyal of ludhiana, punjab, II, IN | |
REGISTRIES and REGISTRARS
| Registries: XYZ.COM LLC | |
| Registrars: Tucows.com Co. |
EXAMINER
| 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 Examiner in this proceeding. | |
| Mr. Tomáš Abelovský, as Examiner |
PROCEDURAL HISTORY
| Complainant Submitted: June 7, 2017 | |
| Commencement: June 8, 2017 | |
| Default Date: June 23, 2017 | |
| Having reviewed the communications records, the Examiner finds that the Forum has discharged its responsibility under URS Procedure Paragraphs 3 and 4 and Rule 4 of the Rules for the Uniform Rapid Suspension System (the "Rules"). |
RELIEF SOUGHT
| Complainant requests that the domain name be suspended for the life of the registration. |
STANDARD OF REVIEW
| Clear and convincing evidence. |
FINDINGS and DISCUSSION
| Findings of Fact: Complainant has provided the following initial explanatory text, in his Complaint: “Add2Net, Inc. (Add2Net) is a world leader in a variety of web-hosting, web-design, web-traffic referral and web-based companies, including its wholly owned sub-division Lunarpages (Lunarpages). Since 2001 Lunarpages has been a been a highly respected provider of information technology, IT infrastructure and business process outsourcing including web hosting services from basic hosting to advanced enterprise level solutions (Services). Lunarpages serves some of the world’s most prestigious and well known consumer and industry brands. Lunarpages first registered and used in commerce the domain name <lunarpages.com> on March 29, 2001. Since that time, Lunarpages has remained a well- known and well respected brand in many countries throughout the world. Since as early as 2001 Add2Net, Inc. has had exclusive use of the trademark LUNARPAGES (Mark) for and in connection with the Services. Add2Net, Inc. is the owner of the federally registered trademark LUNARPAGES (U.S. Registration Numbers 4001196 and 3179173) (the “Mark”) for various international classes in association with such use. Both registrations have achieved section 8 and 15 incontestability status. On June 11, 2014, Add2Net registered the Mark with the Trademark Clearinghouse (TMCH); the Marks status with the TMCH is VERIFIED. On June 7, 2017, LUNARPAGES was notified by the TMCH through its TMCH agent JACO Digital that the Mark was registered as a domain name <lunarpages.xyz>. (“Domain Name”) The relevant part of the disputed domain name is <LUNARPAGES>; the added top-level domain being a required element of every domain name and the descriptive addition <xyz> being irrelevant as far as assessing whether or not a gTLD domain is identical or confusingly similar to a protected Mark. The addition of <xyz> does nothing to distinguish the disputed domain name from the LUNARPAGES trademark. Furthermore, there is no meaning for the word <LUNARPAGES> in Hindi, the language of the infringing registrant. There exists ample evidence of bad faith use and registration. The Registrant has never sought or been granted any right from Add2Net or anyone else to use the Mark. Registrant is not commonly known by the Mark or the Domain Name. Registrant acquired no legitimate interests in the Mark either by purchasing the Domain Name containing the Mark or by posting links for services under that Mark. This bad faith use and registration constitutes a complete disregard for the rights of the subject trademark registrant. The Registrant appears to be a serial cybersquatter. The attached reverse Whois search result shows Registrant owns 9877 domains, 963 of which are .XYZ domains alone. The purpose of these registration appears to be purely commissions. Because the Mark is registered in the Trademark-Clearinghouse, the Registrant would have received notification that the Domain Name matched a registered trademark. Registrant was required to click on a notice acknowledging the infringement. Registrant was therefore aware of the trademark rights when it registered the Domain Name. By posting affiliate links, Registrant has intentionally attempted to attract for commercial gain, Internet users to Registrant’s website by creating a likelihood of confusion with the Mark. Cancellation of the current registration is hereby requested.” Complainant has provided following evidences: (1) the Domain Name’s website screenshot; and (2) the trademark record (USPTO). Respondent has not provided its Response to the Complaint. |
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Even though the Respondent has defaulted, URS Procedure 1.2.6, requires Complainant to make a prima facie case, proven by clear and convincing evidence, for each of the following three elements to obtain an order that a domain name should be suspended.
[URS 1.2.6.1] The registered domain name(s) is/are identical or confusingly similar
to a word mark: Determined: Finding for Complainant Complainant has proven that he owns the trademark “LUNARPAGES” (USPTO). The Domain Name “LUNARPAGES.xyz” reproduces this trademark and is identical. Moreover, the new gTLD “.XYZ” does not reduce the similarity with the trademark. Therefore, the registered Domain Name is identical or confusingly similar to a word mark for which the Complainant holds valid registration/rights, which is in current use. [URS 1.2.6.2] Registrant has no legitimate right or interest to the domain name. Determined: Finding for Complainant Complainant has proven that Respondent has no rights or legitimate interests in the Domain Names. Furthermore, the Complainant has not authorized the Respondent to use his trademark.
[URS 1.2.6.3] The domain name(s) was/were registered and is being used in bad faith.
Determined: Finding for Complainant Respondent has registered and used the Domain Name in bad faith. Complainant has thus satisfied paragraph 1.2.6.3 of the URS Procedure. Passive possession of identical Domain Name consisting of protected word marks and without any manifest proof of purpose towards commercial benefit, can't represent a good faith use under overall circumstances presented in this case. FINDING OF ABUSE or MATERIAL FALSEHOOD The Examiner may find that the Complaint was brought in an abuse of this proceeding or that it contained material falsehoods. The Examiner finds as follows:
DETERMINATION
After reviewing the parties’ submissions, the Examiner determines that the Complainant
has demonstrated all three elements of the URS by a standard of clear and convincing
evidence; the Examiner hereby Orders the following domain name(s) be SUSPENDED for
the duration of the registration:
|
Mr. Tomáš Abelovský Examiner
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