URS DEFAULT DETERMINATION
Pinterest Inc. v. 1&1 Internet Limited
Claim Number: FA1706001736727
DOMAIN NAME
<pinterest.cloud>
PARTIES
Complainant: Pinterest Inc. of San Francisco, CA, United States of America | |
Complainant Representative: Baker McKenzie of London, United Kingdom
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Respondent: 1&1 Internet Limited 1&1 Internet Limited of Gloucester, GLS, II, GB | |
REGISTRIES and REGISTRARS
Registries: ARUBA S.p.A. | |
Registrars: 1&1 Internet SE |
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. | |
Saravanan Dhandapani, as Examiner |
PROCEDURAL HISTORY
Complainant Submitted: June 21, 2017 | |
Commencement: June 22, 2017 | |
Default Date: July 7, 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
Procedural Findings: | ||
Multiple Complainants: Multiple Complainants: No multiple Complainants are involved in this proceeding. This Complaint and findings relate to the domain name <pinterest.cloud>. No domain name is dismissed from this Complaint. | ||
Multiple Respondents: Multiple Respondents: No multiple Respondents are involved in this proceeding. This Complaint and findings relate to the domain name <pinterest.cloud>. No domain name is dismissed from this Complaint. |
Findings of Fact: The case of the Complainant is as follows: The Complainant is the owner of, amongst others, US and Community trade mark registrations for the PINTEREST mark, as shown in the supporting documents. These registrations cover a range of goods and services in Classes, 9, 35, 38, 41, 42, and 45. The Domain Name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights pinterest.cloud (the "Domain Name") is identical or confusingly similar to the Complainant's rights in the PINTEREST name and mark because the Domain Name wholly incorporates the Complainant's PINTEREST mark. The Complainant has not authorized the Respondent to register or use its well-known PINTEREST mark or any confusingly similar sign as part of any business or other activities including in any domain name. The Respondent has no legitimate right or interest to the Domain Name. The Respondent has no rights or legitimate interests in respect of the Domain Name and has never been commonly known by the Domain Name. It is the Complainant's submission that they are merely seeking, and have sought, to exploit the PINTEREST name and mark in which the Complainant has rights to create a commercial gain for itself on the internet. It must be fully aware that the PINTEREST name and mark is a well-known global brand and so the Respondent cannot claim that its conduct amounts to bona fide commercial or fair use sufficient to legitimise any right or interest in the Domain Name. The Respondent has used the Domain Name to divert traffic to an unconnected site and to utilise the reputation of the Complainant's PINTEREST brand to generate business and redirect to www.heypster.com. This use will undoubtedly cause damage to the reputation of the Complainant as this is likely to confuse users and create a connection between Pinterest and the linked website that does not exist, causing damage to the Complainant's reputation. The Domain Name does not contain any reference setting out the identity of the Respondent or indicating that it is otherwise associated in any way with the name "pinterest". In the event that the Respondent has adopted a domain name identical to the well-known PINTEREST name and trade mark in other instances, it can only have done so to create a commercial advantage for itself. The Domain Name has been registered and is being used in bad faith. By using the Domain Name, the Respondent intentionally attempted to attract for commercial gain, Internet users to the Respondent's website by creating a likelihood of confusion with the Complainant's marks as to source, sponsorship, affiliation or endorsement of the Respondent's website. The Respondent's intention in acquiring the Domain Name can only be to take unfair advantage of the substantial global reputation in the PINTEREST name and mark with a view to attracting for itself a commercial gain. Given the Complainant's rights and goodwill in the PINTEREST mark, the Respondent must at all material times have been fully aware of this reputation. |
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 The Complainant has proved by documentary evidences that they are the registered owner of trademark “PINTEREST” under various classifications. As noted, the disputed domain name <pinterest.cam> composes “pinterest” and “.cloud”. Thus the word “pinterest” in disputed domain name is identical to Complainant’s registered trademark “pinterest”. The “.cloud” in disputed domain name is a generic code top-level domain name (gTLD) suffix which mean the space on the web where you can store data and programs. It is non-distinctive and is incapable of differentiating the disputed domain name from the Complainant’s registered trademark. Based on the fact that “pinterest” being a registered trademark of the Complainant, the Examiner determines that URS 1.2.6.1(i) covers the domain name at issue in this Complaint. [URS 1.2.6.2] Registrant has no legitimate right or interest to the domain name. Determined: Finding for Complainant The Complainant owns trademark “pinterest” under various classifications in various countries throughout the world. The Complainant’s adoption and first use of the registered trademark is for quite some time. In such case, the burden lies on the Respondent to prove that he/she has legitimate rights and/or interests in the disputed domain name. The Respondent is in default and has not filed any response. Although, the Complainant is not entitled to relief simply by default of the Respondent to submit a Response, the Examiner can however and does draw evidentiary inferences from the failure of the Respondent to respond. In view of the above, the Complainant has established a prima facie case of lack of rights and legitimate interest. Based on the record, the Respondent does not have rights or legitimate interests in the disputed domain name. Hence, the Examiner determines that URS 1.2.6.2 covers the domain name at issue in this Complaint and that the Respondent has no legitimate right or interest to the domain name.
[URS 1.2.6.3] The domain name(s) was/were registered and is being used in bad faith.
Determined: Finding for Complainant It is the specific case of the Complainant that the Respondent is not affiliated with Complainant in any manner and never authorized the Respondent to register or use any domain name incorporating “pinterest”. The Respondent has not responded in spite of the notice of complaint and notice of default under this URS determination process. It is well established that the registration and use of the disputed domain name must involve malafides where the registration and use of it was continued to be made in full knowledge of the Complainant’s prior rights in the “pinterest” registered trademark and in circumstances where the registrant did not seek permission from the Complainant, as the owner of trademark, for such registration and use. Thus the Panel Examiner comes to an irresistible determination that (i) the disputed domain name is identical to the Complainant’s “pinterest” trademark; (ii) the Respondent’s name does not correspond to the disputed domain name; (iii) the Respondent was aware of the Complainant and its trademark when it registered the disputed the domain name; (iv) there is no indication of any authorization to use the Complainant’s mark. Hence, it is lawful to conclude that the disputed domain name was registered in bad faith. Thus the Examiner determines that URS 1.2.6.3 (a) and (d) covers the domain name at issue in this Complaint and the domain name was registered and is being used in bad faith. 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:
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Saravanan Dhandapani Examiner
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