BroadPath Healthcare Solutions / Jerry Robertson v. Maria Piro / Nova Nordisk
Claim Number: FA1709001748692
Complainant is BroadPath Healthcare Solutions / Jerry Robertson
(“Complainant”), represented by Rhyan Schefus, Arizona, USA. Respondent is Maria Piro / Nova Nordisk (“Respondent”), New York, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <broad-path.org>, registered with Google Inc..
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.
John J. Upchurch as Panelist.
Complainant submitted a Complaint to the Forum electronically on September 12, 2017; the Forum received payment on September 12, 2017.
On September 15, 2017, Google Inc. confirmed by e-mail to the Forum that the <broad-path.org> domain name is registered with Google Inc. and that Respondent is the current registrant of the name. Google Inc. has verified that Respondent is bound by the Google 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 September 26, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 16, 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 email@example.com. Also on September 26, 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 October 18, 2017, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed John J. Upchurch 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.
1. Complainant registered the BROADPATH mark with the United States Patent and Trademark Office (“USPTO”) (e.g. Reg. No. 3,668,700, registered Aug. 18, 2009). See Compl. Annex.
2. Respondent has no rights or legitimate interests in the <broad-path.org> domain name. Respondent is not commonly known by the disputed domain name, nor has Complainant authorized, licensed, or otherwise permitted Respondent to use the mark. Respondent also does not use the disputed domain name in connection with a bona fide offering of goods or services or legitimate noncommercial or fair use. Rather, Respondent attempts to pass off as Complainant to facilitate fraud on Internet users. See Compl. Annex.
3. Respondent registered and uses the <broad-path.org> domain name in bad faith. Respondent passes off as Complainant for Respondent’s commercial gain via a fraudulent work opportunity.
1. Respondent failed to submit a response in this proceeding.
1. Complainant has failed to establish an essential element of the policy.
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.”).
Identical and/or Confusingly Similar
Complainant registered the BROADPATH mark with the USPTO (e.g. Reg. No. 3,668,700, registered Aug. 18, 2009). Registration with the USPTO is sufficient to establish rights in a mark per Policy ¶ 4(a)(i). See Humor Rainbow, Inc. v. James Lee, FA 1626154 (Forum Aug. 11, 2015) (stating, “There exists an overwhelming consensus amongst UDRP panels that USPTO registrations are sufficient in demonstrating a complainant’s rights under Policy ¶ 4(a)(i) and its vested interests in a mark. . . . Due to Complainant’s USPTO registration on the principal register at Exhibit 1, the Panel agrees that it has sufficiently demonstrated its rights per Policy ¶ 4(a)(i).”). The Panel therefore finds Complainant has rights in the BROADPATH mark.
Although Complainant fails to assert whether the <broad-path.org> domain name is identical or confusingly similar to Complainant’s BROADPATH mark, it is apparent that it is identical or confusingly similar to Complaint’s mark.
Rights or Legitimate Interests
Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), and then the burden shifts to Respondent to show it does have rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name); see also AOL LLC v. Gerberg, FA 780200 (Forum Sept. 25, 2006)
(“Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain
Complainant fails to make a legally cognizable Policy ¶ 4(a)(ii) argument. Failure to establish that a respondent lacks rights and legitimate interests in a disputed domain name allows the panel to decline transfer of the disputed domain name. See Graman USA Inc. v. Shenzhen Graman Indus. Co., FA 133676 (Forum Jan. 16, 2003) (finding that absent a showing of any facts by the complainant that establish the respondent lacks rights or legitimate interests in the disputed domain name, the panel may decline to transfer the disputed domain name). Complainant does not demonstrate that Respondent is not commonly known by the disputed domain name nor that Respondent failed to use <broad-path.org> in connection with a bona fide offer of goods and services or for a legitimate noncommercial or fair use. Having failed to establish this essential element, the Panel shall disregard analysis of the remaining element.
Having failed to establish an essential element required under the ICANN Policy, the Panel concludes that relief shall be DENIED. It is so Ordered.
John J. Upchurch, Panelist
Dated: October 31, 2017
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