Bloq, Inc. v. Kara Venecamp
Claim Number: FA1807001796115
Complainant is Bloq, Inc. (“Complainant”), represented by Patchen M. Haggerty of Perkins Coie LLP, Washington, USA. Respondent is Kara Venecamp (“Respondent”), Czech Republic.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <metronome.bz> (the “Domain Name”), registered with PDR Ltd. d/b/a PublicDomainRegistry.com.
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.
Dawn Osborne as Panelist.
Complainant submitted a Complaint to the Forum electronically on July 10, 2018; the Forum received payment on July 10, 2018.
On July 12, 2018, PDR Ltd. d/b/a PublicDomainRegistry.com confirmed by e-mail to the Forum that the <metronome.bz> domain name is registered with PDR Ltd. d/b/a PublicDomainRegistry.com and that Respondent is the current registrant of the name. PDR Ltd. d/b/a PublicDomainRegistry.com has verified that Respondent is bound by the PDR Ltd. d/b/a PublicDomainRegistry.com 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 16, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 6, 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@metronome.bz. Also on July 16, 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 August 7, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Dawn Osborne 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’s contentions can be summarised as follows:
Complainant is the owner of the unregistered trade mark for METRONOME for cryptocurrency first advertised in October 2017.
The Domain Name registered in 2018 is confusingly similar to Complainant’s trade mark, adding only the ccTLD .bz which does not distinguish the Domain Name from that mark.
Respondent has no license to use the METRONOME mark and is not commonly known by the Domain Name which has been attached to a web site mimicking he web site of Complainant for phishing or fraudulent purposes. This is not a bona fide use or non commercial legitimate fair use.
It is registration and use in bad faith as it confuses Internet users for commercial gain under Policy ¶¶ 4(b)(iv) and (iii). The copying of Complainant’s web site shows Respondent is aware of Complainant and its business.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant is the owner of the unregistered trade mark for METRONOME for cryptocurrency first advertised in October 2017.
The Domain Name registered in 2018 has been used for a site that mimics Complainant’s official site.
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 or Confusingly Similar
The Domain Name consists of the Complainant's METRONOME mark (first use recorded as 2017) in which it has demonstrated common law rights and secondary meaning and the ccTLD .bz which does not distinguish the Domain Name from Complainant’s mark.
The ccTLD does not serve to distinguish a Domain Name from a complainant’s mark. See ER Marks Inc. and QVC Inc v Stefan Hansmann, FA 1381755 (Forum May 6, 2011) (‘Neither the addition of country code top level domains …, nor the insertion of a gTLD has a distinctive function’).
Accordingly, the Panel holds that the Domain Name is identical for the purposes of the Policy to Complainant’s METRONOME unregistered mark.
As such the Panel holds that Paragraph 4(a)(i) of the Policy has been satisfied.
Rights or Legitimate Interests
Complainant has not authorised the use of its mark. There is no evidence or reason to suggest Respondent is commonly known by the Domain Name. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum September 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark).
The web site attached to the Domain Name has copied material from Complainant’s web site so that Respondent’s site appeared to be an official site of Complainant. As such it cannot amount to the bona fide offering of goods and services or a non commercial legitimate fair use. See iFinex Inc. v Yuri Heifetz/Genie-Solution, FA 1789385 (Forum July 9, 2018) (holding that the respondent’s mimicking the complainant’s web site in order to cause existing or potential customers of the Complainant’s to believe they are dealing with the complainant is prima facie evidence of the respondent’s lack of rights and legitimate interests in the disputed domain name).
As such the Panelist finds that Respondent does not have rights or a legitimate interest in the Domain Name and that Complainant has satisfied the second limb of the Policy.
Registration and Use in Bad Faith
In the opinion of the panelist the use made of the Domain Name in relation to Respondent’s site is confusing and disruptive in that visitors to the site might easily be deceived that it is connected to or approved by Complainant as it mimics Complainant’s web site without permission. This fact that material has been copied from Complainant’s web site shows that Respondent is aware of Complainant and its business. Accordingly, the Panel holds that Respondent has intentionally attempted to attract for commercial gain Internet users to its website by creating likelihood of confusion with Complainant's trade marks as to the source, sponsorship, affiliation or endorsement of the web site likely to disrupt the business of Complainant. See Allianz of AM. Corp v Bond, FA 680624 (Forum June 2, 2006) (finding bad faith registration and use where the respondent was diverting Internet users searching for the complainant to its own website).
As such, the Panelist believes that Complainant has made out its case that the Domain Name was registered and used in bad faith and has satisfied the third limb of the Policy under paras. 4(b)(iv) and 4(b)(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 <metronome.bz> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: August 8, 2018
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