DECISION

 

Liquid Web, LLC v. Dilmurot Adilboev

Claim Number: FA1809001805657

PARTIES

Complainant is Liquid Web, LLC (“Complainant”), represented by Kristie Bakkal of Liquid Web, LLC, Michigan, USA.  Respondent is Dilmurot Adilboev (“Respondent”), Russian Federation.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <liquidweb.info>, registered with NameCheap, Inc.

 

PANEL

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.

 

John J. Upchurch as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to the Forum electronically on September 12, 2018; the Forum received payment on September 12, 2018.

 

On September 13, 2018, NameCheap, Inc. confirmed by e-mail to the Forum that the <liquidweb.info> 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 September 17, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 9, 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@liquidweb.info.  Also on September 17, 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 October 10, 2018, 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.

 

RELIEF SOUGHT

Complainant requests that the domain name be transferred from Respondent to Complainant.

 

PARTIES' CONTENTIONS

Complainant:

Complainant, Liquid Web, LLC, is a high quality web hosting provider in the information technology industry. Complainant uses the LIQUID WEB mark to provide and market its goods and services. Complainant has rights in the mark based upon registration with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 2,413,808, registered Dec. 19, 2000). See Amend. Compl. Annex 3. Respondent’s <liquidweb.info> domain name is identical or confusingly similar to the mark as Respondent merely adds the “.info” generic top-level domain (“gTLD”) to Complainant’s mark.

 

Respondent does not have rights or legitimate interests in the <liquidweb.info> domain name. Respondent is not permitted or licensed to use Complainant’s LIQUID WEB mark and is not commonly known by the disputed domain name. Additionally, Respondent is not using the disputed domain name to make a bona fide offering of goods or services or for a legitimate non-commercial or fair use. Rather, Respondent uses the <liquidweb.info> domain name to divert Internet users to Respondent’s website that displays adult-oriented material.

 

Respondent has registered and used the <liquidweb.info> domain name in bad faith. Respondent attempts to disrupt Complainant’s business and attract, for commercial gain, users to the disputed domain name which features click-through advertisements to third party websites. Moreover, Respondent uses the website to host adult-oriented material.

 

Respondent:

Respondent failed to submit a Response in this proceeding.

 

FINDINGS

1.    Respondent’s <liquidweb.info> domain name is confusingly similar to Complainant’s LIQUID WEB mark.

2.    Respondent does not have any rights or legitimate interests in the <liquidweb.info> domain name.

3.    Respondent registered or used the <liquidweb.info> domain name in bad faith.

 

DISCUSSION

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 claims rights in the LIQUID WEB mark based upon its registration with the USPTO.  Registration with the USPTO is sufficient to establish rights in a mark pursuant to Policy ¶ 4(a)(i). See Haas Automation, Inc. v. Jim Fraser, FA 1627211 (Forum Aug. 4, 2015) (finding that Complainant’s USPTO registrations for the HAAS mark sufficiently demonstrate its rights in the mark under Policy ¶ 4(a)(i)). Complainant provides copies of its USPTO registrations for the LIQUID WEB mark (e.g., Reg. No. 2,413,808, registered Dec. 19, 2000). See Amend. Compl. Annex 3. Therefore, the Panel finds that Complainant has rights in the LIQUID WEB mark per Policy ¶ 4(a)(i).

 

Next, Complainant asserts that the <liquidweb.info> domain name is identical or confusingly similar to the LIQUID WEB mark as it merely adds the “.info” gTLD. The addition of a gTLD to a mark may not sufficiently distinguish a disputed domain name from a mark. See Trip Network Inc. v. Alviera, FA 914943 (Forum Mar. 27, 2007) (concluding that the affixation of a gTLD to a domain name is irrelevant to a Policy ¶ 4(a)(i) analysis). Accordingly, the Panel holds that Respondent’s <liquidweb.info> domain name is identical and/or confusingly similar to Complainant’s LIQUID WEB mark per Policy ¶ 4(a)(i).

 

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), then the burden shifts to Respondent to show it does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests”).

 

Complainant alleges that Respondent does not have rights or legitimate interests in the disputed domain name, as Respondent is not commonly known by the domain name and Complainant has not licensed or otherwise authorized Respondent to use its LIQUID WEB mark in any fashion. Absent contradicting evidence in the record that a respondent was authorized to use a complainant’s mark in a domain name or that a respondent is commonly known by the disputed domain name, the respondent may be presumed to lack rights and legitimate interests in the domain name. See IndyMac Bank F.S.B. v. Eshback, FA 830934 (Forum Dec. 7, 2006) (finding that the respondent failed to establish rights and legitimate interests in the <emitmortgage.com> domain name as the respondent was not authorized to register domain names featuring the complainant’s mark and failed to submit evidence that it is commonly known by the domain name). Under Policy ¶ 4(c)(ii), WHOIS information can be used to support a finding that a respondent is not commonly known by a disputed domain name. 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)). The WHOIS information of record for the <liquidweb.info> domain name lists “Dilmurot Adilboev” as the registrant. Therefore, the Panel concludes that Respondent is not commonly known by the <liquidweb.info> domain name.

 

Next, Complainant contends that Respondent uses the <liquidweb.info> domain name to resolve to a website that displays adult-oriented material. Use of a domain name to host adult-oriented material may not be considered to be a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii). See Altria Group, Inc. and Altria Group Distribution Company v. xiazihong, FA1732665 (Forum July 7, 2017) (holding that “[u]se of a domain name to display adult-oriented images is not considered a bona fide offering of goods or services or a legitimate noncommercial or fair use under the Policy.”). Here, Complainant provides screenshots of the <liquidweb.info> website, which show that the site displays adult-oriented material and links. See Amend. Compl. Annex 5. Therefore, the Panel concludes that Respondent fails to use the disputed domain name for a legitimate Policy ¶¶ 4(c)(i) or (iii) use.

 

Registration and Use in Bad Faith

Complainant argues that Respondent attempts to disrupt Complainant’s business and create confusion with Complainant’s mark for commercial gain by using the <liquidweb.info> domain name to resolve to a website featuring competing hyperlinks. Under Policy ¶¶ 4(b)(iii) and (iv), use of a domain name to disrupt a complainant’s business or create confusion with a complainant’s mark for commercial gain may evidence bad faith registration and use. See Health Republic Insurance Company v. Above.com Legal, FA1506001622088 (Forum July 10, 2015) (“The use of a domain name’s resolving website to host links to competitors of a complainant shows intent to disrupt that complainant’s business, thereby showing bad faith in use and registration under Policy ¶ 4(b)(iii).”); see also Associated Newspapers Ltd. v. Domain Manager, FA 201976 (Forum Nov. 19, 2003) (“Respondent's prior use of the <mailonsunday.com> domain name is evidence of bad faith pursuant to Policy ¶ 4(b)(iv) because the domain name provided links to Complainant's competitors and Respondent presumably commercially benefited from the misleading domain name by receiving ‘click-through-fees.’”). Complainant provided screenshots of the <liquidweb.info> website, which indicate that the site features click-through-links. See Amend. Compl. Annex 5. Accordingly, the Panel finds that Respondent registered and uses the disputed domain name in bad faith pursuant Policy ¶¶ 4(b)(iii) and/or (iv).

 

Moreover, Complainant contends that Respondent uses the <liquidweb.info> domain name to host adult oriented material. Use of a confusingly similar domain name to resolve to an adult-oriented site may be evidence of registration and use in bad faith under Policy ¶ 4(a)(iii). See White Oak Entertainment, LLC - DBA The Chateau at White Oak Vineyard v. Al Perkins, FA 1702045 (Forum Dec. 12, 2016) (finding the respondent’s use of the domain name to redirect users to a pornographic website constituted evidence of bad faith). Here, Complainant provides screenshots of the disputed domain name’s resolving website which displays the adult-oriented material. See Amend. Compl. Annex 5. Therefore, the Panel finds that Respondent registered and uses the disputed domain name in bad faith pursuant to Policy ¶ (a)(iii).  

 

DECISION

Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.

 

Accordingly, it is Ordered that the <liquidweb.info> domain name be TRANSFERRED from Respondent to Complainant.

 

John J. Upchurch, Panelist

Dated:  October 24, 2018