Wiluna Holdings, LLC v. HERMANN HOCHMAYER
Claim Number: FA1806001794775
Complainant is Wiluna Holdings, LLC (“Complainant”), represented by John O’Malley of Volpe and Koenig, P.C., Pennsylvania, USA. Respondent is HERMANN HOCHMAYER (“Respondent”), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <clips4szle.com>, registered with GoDaddy.com, LLC.
The undersigned certifies that he has acted independently and impartially and, to the best of his knowledge, has no known conflict in serving as Panelist in this proceeding.
The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Complainant submitted a Complaint to the Forum electronically on June 30, 2018; the Forum received payment on June 30, 2018.
On July 2, 2018, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <clips4szle.com> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, LLC 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 July 5, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 25, 2018 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@clips4szle.com. Also on July 5, 2018, 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 July 27, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed the Honorable Charles K. McCotter, Jr. (Ret.) 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
Complainant, Wiluna Holdings, LLC, is the owner and operator of the website operating at the URL “www.clips4sale.com.” Complainant uses the CLIPS4SALE.COM mark in connection with adult-entertainment media. Complainant has rights in the mark based upon its registration of the mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 3,508,680, registered Sep. 30, 2008). Respondent’s <clips4szle.com> domain name is confusingly similar to Complainant’s mark because Respondent wholly incorporates Complainant’s mark in the disputed domain name and replaces the letter “a” with a “z.”
Respondent lacks rights and legitimate interests in the <clips4szle.com> domain name because Respondent is not commonly known by the disputed domain name nor has Complainant authorized Respondent to use the mark. Additionally, Respondent fails to use the disputed domain name in connection with a bona fide offering of goods and services or for a legitimate noncommercial or fair use. Instead, Respondent uses the disputed domain name to divert internet users and profit from the goodwill associated with Complainant’s mark.
Respondent registered and uses the <clips4szle.com> domain name in bad faith. Respondent attempts to disrupt Complainant’s business and attract, for commercial gain, users to the disputed domain name’s website which redirects them to a webpage that contains pay-per-click advertisements. Furthermore, Respondent’s deliberate misspelling of the name constitutes typosquatting.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant, Wiluna Holdings, LLC, is the owner and operator of the website operating at the URL <www.clips4sale.com>. Complainant uses the CLIPS4SALE.COM mark in connection with adult-entertainment media. Complainant has rights in the mark based upon its registration of the mark with the USPTO (e.g., Reg. No. 3,508,680 registered Sep. 30, 2008). Respondent’s <clips4szle.com> domain name is confusingly similar to Complainant’s mark.
Respondent registered the <clips4szle.com> domain name on September 21, 2017.
Respondent lacks rights and legitimate interests in the <clips4szle.com> domain name.
Respondent registered and uses the <clips4szle.com> domain name in bad faith.
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., 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., D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
Complainant has rights in the CLIPS4SALE.COM mark under Policy ¶ 4(a)(i) based upon its registration of the mark with the USPTO. Registration of a mark with the USPTO is sufficient to establish a Complainant’s rights in a mark under Policy ¶ 4(a)(i). See Home Depot Product Authority, LLC, FA 1738124 (Forum July 28, 2017) (finding that registration with the USPTO was sufficient to establish the complainant’s rights in the HOME DEPOT mark).
Respondent’s <clips4szle.com> is confusingly similar to Complainant’s mark because Respondent incorporates the entire mark in the disputed domain name and swaps out a letter.
Respondent lacks rights and legitimate interests in the <clips4szle.com> domain name. Respondent is not authorized to use Complainant’s CLIPS4SALE.COM mark. The WHOIS information lists the Registrant of the domain name as “Herman Hochmayer.” Respondent is not commonly known by the disputed domain name. Where a response is lacking, relevant WHOIS information may be used to identify the respondent per Policy ¶ 4(c)(ii). See State Farm Mutual Automobile Insurance Company, FA 1613011 (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)). Additionally, lack of authorization from complainant to use its’ marks may be further evidence that a respondent is not commonly known by a disputed domain name. See Indeed, Inc., FA 1739470 (Forum Aug, 3, 2017) (”Respondent lacks both rights and legitimate interests in respect of the at-issue domain name. Respondent is not authorized to use Complainant’s trademark in any capacity and, as discussed below, there are no Policy ¶4(c) circumstances from which the Panel might find that Respondent has rights or interests in respect of the at-issue domain name.”).
The <clips4szle.com> domain name resolves to a parked GoDaddy web page. The failure to make an active use of a disputed domain name that is confusingly similar to a complainant’s registered mark is not a bona fide offering of goods or services or a legitimate noncommercial or fair use of the domain name. See Thermo Electron Corp., FA 713851 (Forum July 12, 2006) (finding that the respondent’s non-use of the disputed domain names demonstrates that the respondent is not using the disputed domain names for a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii)).
Respondent registered and uses the <clips4szle.com> domain name in bad faith.
The disputed domain name resolves to a parked website. Failure to make an active use of a confusingly similar domain name constitutes bad faith use and registration under Policy ¶ 4(a)(iii). See Caravan Club, FA 95314 (Forum Aug. 30, 2000) (failure to make active use of a domain name permits an inference of registration and use in bad faith).
Respondent has engaged in typosquatting. Use of a domain name to engage in typosquatting is evidence of bad faith under Policy ¶ 4(a)(iii). See Homer TLC, Inc., FA 1623825 (Forum July 20, 2015) (“Typosquatting is independent evidence of bad faith in the registration and use of a domain name.”).
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <clips4szle.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: August 10, 2018
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