Surecom Corporation, NV. v. Primejde Valentin
Claim Number: FA1711001759832
Complainant is Surecom Corporation, NV. (“Complainant”), represented by Paul T. Eidsness, Florida, USA. Respondent is Primejde Valentin (“Respondent”), Romania.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <cam4world.com>, registered with NameCheap, Inc..
The undersigned certifies that she has acted independently and impartially and to the best of her knowledge has no known conflict in serving as Panelist in this proceeding.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to the Forum electronically on November 23, 2017; the Forum received payment on November 23, 2017.
On November 24, 2017, NameCheap, Inc. confirmed by e-mail to the Forum that the <cam4world.com> domain name is registered with NameCheap, Inc. and that Respondent is the current registrant of the name. NameCheap, Inc. has verified that Respondent is bound by the NameCheap, 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 November 30, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 20, 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@cam4world.com. Also on November 30, 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 December 22, 2017, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Sandra J. Franklin 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.
A. Complainant
1. Respondent’s <cam4world.com> domain name is confusingly similar to Complainant’s CAM4 mark.
2. Respondent does not have any rights or legitimate interests in the <cam4world.com> domain name.
3. Respondent registered and uses the <cam4world.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant holds a registration for the CAM4 mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 4,062,460, registered Nov. 29, 2011).
Respondent registered the <cam4world.com> domain name on October 19, 2017, and uses it to pass itself off as Complainant.
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.”).
The Panel finds that Complainant has established rights in the CAM4 mark based upon registration with the USPTO (e.g. Reg. No. 4,062,460, registered Nov. 29, 2011). 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 attached USPTO registration on the principal register at Exhibit 1, the Panel agrees that it has sufficiently demonstrated its rights per Policy ¶ 4(a)(i).”).
Respondent’s <cam4world.com> domain name incorporates the CAM4 mark, and merely adds the geographic term “world” and the “.com” gTLD. Similar changes in a registered mark have failed to sufficiently distinguish a domain name for the purposes of Policy ¶4(a)(i). See Doosan Corporation v. philippe champain, FA 1636675 (Forum Oct. 13, 2015) (finding that geographic designations or terms descriptive of a complainant’s business operations do not remove a domain name from the realm of confusing similarity.); see also Reese v. Morgan, FA 917029 (Forum Apr. 5, 2007) (finding that the mere addition of the generic top-level domain “.com” is insufficient to differentiate a disputed domain name from a mark). The Panel therefore finds that Respondent’s <cam4world.com> domain name is confusingly similar to Complainant’s CAM4 mark.
The Panel finds that Complainant has satisfied Policy ¶4(a)(i).
Once Complainant makes a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), 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 names.”).
Complainant
argues that Respondent has no rights or legitimate interests in the <cam4world.com> domain
name and is
not commonly known by the disputed domain name. Complainant has not authorized
Respondent to use the CAM4 mark. Where a
response is lacking, WHOIS information can support a finding that the respondent
is not commonly known by the disputed domain name, especially where a
privacy service has been engaged. See State
Farm Mutual Automobile Insurance Company v. Dale Anderson, FA1504001613011
(Forum May 21, 2015) (concluding
that because the WHOIS record lists “Dale Anderson” as the registrant of the
disputed domain name, the respondent was not commonly known by the
<statefarmforum.com> domain name pursuant to Policy ¶ 4(c)(ii)); see
also Kohler Co. v. Privacy Service, FA1505001621573 (Forum
July 2, 2015) (holding that the respondent was not commonly known by the
disputed domain name pursuant to Policy ¶ 4(c)(ii) where “Privacy Service” was
listed as the registrant of the disputed domain name). The Panel notes
that a privacy service was used by Respondent, but was lifted as a result of
the commencement of this proceeding. The WHOIS information of record now identifies
“Primejde Valentin” as the registrant of the disputed domain name. The Panel therefore
finds under Policy ¶ 4(c)(ii) that Respondent is not commonly known by the <cam4world.com> domain name under Policy ¶ 4(c)(ii). 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).
Complainant contends Respondent fails to use the disputed domain name in connection with a bona fide offering of goods or services or legitimate noncommercial or fair use. Complainant argues, unopposed, that Respondent attempts to pass itself off as Complainant or an affiliate of Complainant before linking to a competitor of Complainant. Use of a disputed domain name to pass off as a complainant for a respondent’s commercial gain does not represent a bona fide offer per Policy ¶ 4(c)(i) or a noncommercial fair use per Policy ¶ 4(c)(iii). See Mortgage Research Center LLC v. Miranda, FA 993017 (Forum July 9, 2007) (“Because [the] respondent in this case is also attempting to pass itself off as [the] complainant, presumably for financial gain, the Panel finds the respondent is not using the <mortgageresearchcenter.org> domain name for a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).”). The Panel finds that Respondent has failed to provide a bona fide offering of goods or services under Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use per Policy ¶ 4(c)(iii).
The Panel finds that Complainant has satisfied Policy ¶4(a)(ii).
Complainant alleges that Respondent intentionally attempts to attract, for commercial gain, Internet users to its own website by creating confusion as to the source, sponsorship, affiliation or endorsement of Respondent’s website. Complainant contends that Respondent diverts Internet users to Respondent’s own website where it then displays advertising in competition with Complainant. The Panel finds that Respondent attempts to commercially benefit off Complainant’s mark in bad faith under Policy ¶ 4(b)(iv). See Citadel LLC and its related entity, KCG IP Holdings, LLC v. Joel Lespinasse / Radius Group, FA1409001579141 (Forum Oct. 15, 2014) (“Here, the Panel finds evidence of Policy ¶ 4(b)(iv) bad faith as Respondent has used the confusingly similar domain name to promote its own financial management and consulting services in competition with Complainant.”); see also Xylem Inc. and Xylem IP Holdings LLC v. YinSi BaoHu YiKaiQi, FA1504001612750 (Forum May 13, 2015) (“The Panel agrees that Respondent’s use of the website to display products similar to Complainant’s, imputes intent to attract Internet users for commercial gain, and finds bad faith per Policy ¶ 4(b)(iv).”).
Respondent also failed to respond to Complainant’s cease and desist letter, which can be additional evidence of bad faith. See Garrison Keillor, Minnesota Public Radio, Inc. v. Paul Stanton, FA 98422 (Forum Aug. 28, 2001) (Respondent’s failure to respond to Complainant's June 12, 2001, letter further demonstrates Respondent's lack of good faith intent in registration and use of the domain name.). The Panel notes that Complainant sent Respondent notice of Respondent’s trademark violations on November 14, 2017 and Respondent failed to respond; the Panel finds that this is further evidence of bad faith.
The Panel finds that Complainant has satisfied Policy ¶4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <cam4world.com> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: December 22, 2017
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page