AASKI Technology, Inc. v. carl geo
Claim Number: FA1903001833265
Complainant is AASKI Technology, Inc. (“Complainant”), represented by William R. Samuels of Scarinci Hollenbeck, LLC, New York, USA. Respondent is carl geo (“Respondent”), Minnesota, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <aaskitreason.com>, registered with eNom, LLC.
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.
Nathalie Dreyfus as Panelist.
Complainant submitted a Complaint to the Forum electronically on March 8, 2019; the Forum received payment on March 8, 2019.
On March 12, 2019, eNom, LLC confirmed by e-mail to the Forum that the <aaskitreason.com> domain name is registered with eNom, LLC and that Respondent is the current registrant of the name. eNom, LLC has verified that Respondent is bound by the eNom, 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 March 18, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 12, 2019 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@aaskitreason.com. Also on March 18, 2019, 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.
A timely Response was received and determined to be complete on April 11, 2019.
On April 16, 2019, Complainant sent additional submissions further to Respondent’s Response. On April 19, 2019, Respondent replied to said additional submissions.
On April 15, 2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Nathalie Dreyfus 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.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant is a company founded in 1997 and specialized in providing software, information technology (“IT”) and engineering services, mostly to the United States Government. Due to the extensive use of the sign, Complainant considers having common law trademark rights for the signs “AASKI” and “AASKI TECHNOLOGY”. The latter also uses the domain name <aaski.com>, registered in October 2002. Complainant provides numerous information in support of its claim for common law rights.
Complainant considers that Respondent has registered the disputed domain name for the sole purpose of tarnishing Complainant’s name as well as its CEO’s, Mr. Bharat Parikh, further to a business transaction, which was never sealed, between Mr. Parikh’s company Primetime Basketball League and Champions League, Inc.
Complainant contends that Mr. Carl George, Chairman of Champions League, sent threats to Complainant, including the registration of a domain name to publish content, that Complainant considers to be defamatory. Complainant also indicates that Respondent has sent e-mails to the US Army, AASKI employees and the Government Accountability to damage Complainant and its CEO’s reputation.
Complainant alleges that Mr. George has already attempted to extort a settlement in a civil case by setting up websites to distribute injurious information and that Complainant has already filed an UDRP complaint against the latter, regarding the domain names <aaskifraud.com> and <aaskicollusion.com> (See decision AASKI Technology, INC. v. Technology Department /Cloud Service, Inc., October 26, 2018, FA 1809001807368), which resulted in the transfer of the domain names. The Panel notes however that the dispute was not precisely filed against Mr. George.
In view of the above, Complainant deems that the disputed domain name <aaskitreason.com> is confusingly similar with its “AASKI” trademark, in spite of the addition of a pejorative term (“treason”).
Besides, Complainant considers that Respondent does not have any right nor legitimate interest in the disputed domain name, since Respondent is not commonly known under the name “AASKI” and that Complainant and Respondent have no legal link nor did Complainant authorize Respondent to register the disputed domain name. Complainant considers that Respondent could have exercised his right to free speech through another domain name which does not misuse its trademark.
Finally, Complainant indicates that the disputed domain name has been registered and used in bad faith as it is confusingly similar to its trademark and resolves to a website featuring “false and derogatory statements” about Complainant and its practices.
B. Respondent
Respondent first specifies that Complainant’s CEO has filed a lawsuit in the State of Minnesota against him and, in the course of said lawsuit, has sought to gain a Restraining Order against the website <aaskitreason.com>. The Judge ordered that the Plaintiff should request further hearings in case the revised website still contained defamatory material. Respondent notes that, in 160 days after the ruling, Complainant has not raised any objection against the website. Therefore, Respondent contends that Complainant has lied when assessing that it could not determine whether any other legal proceeding has been commenced or terminated in relation to the disputed domain name.
Secondly, Respondent argues that Complainant cannot pretend to any trademark right for the sign “AASKI”, on the one hand as it is identical on a phonetic level to the name “ASCII”, on the other hand because Complainant mainly earns its revenues from a single customer (that is to say the United States Government).
Respondent states that Complainant’s CEO, Mr. Parikh, lied to him about a certain Mr. Scott still being the CEO of Champions League (where Respondent is a Chairman, according to the Complaint). Then, Respondent indicates that Mr. Parikh approved and allowed false cease-and-desist letters to be sent to Champions League’s adverse party’s Counsel in a “major litigation”. Such letters were apparently used by Champions League’s adverse party to ruin Respondent’s reputation. Respondent indicates that the litigation between him, Mr. Parikh and other individuals is set for trial in September 2019. Respondent deems that Mr. Parikh committed treason considering that he was allegedly disloyal to Champions League whereas he was an insider.
Respondent argues that all information stated on the website set on the disputed domain name is true and accurate. He also contends that, contrary to Complainant’s assertions, Champions Basketball League and Primetime Basket League are owned by AASKI Sports, LLC. In addition, he mentions that he did not “threaten” Complainant but rather informed it that he had completed an investigation and that, if the deal was not sealed, then the results of the investigation would be propagated.
C. Additional Submissions
On April 16, 2019, Complainant answered Respondent’s observations. Complainant indicates that the legal action implicates four plaintiffs, none of which is Complainant, and that this UDRP matter does not relate to the question of free speech but to the registration and use of a domain name reproducing its trademark.
Respondent replied to said observations, by insisting on the Ruling of Judge Peterson as regards the contents on the website <aaskitreason.com> and by arguing that Mr. Parikh is directly concerned by this case. Finally, he also highlights his appreciation that Complainant could not succeed in the UDRP primarily because it cannot pretend to trademark rights in the sign “AASKI” (See section Parties Contentions, B. Respondent).
Complainant, AASKI Technology, Inc., is a US company founded in 1997 and specialized in providing software, information technology (“IT”) and engineering services, mostly to the United States Government. Complainant enjoys Intellectual Property rights for the “AASKI” sign, through its extensive use, resulting in common law rights. “AASKI” is also Complainant’s company name (“AASKI Technology”).
Respondent is Carl Geo (actually Mr. Carl George), an individual from Minnesota, in the Unites States. Respondent has registered the disputed domain name, <aaskitreason.com>, on September 28, 2018.
In view of the evidence submitted to the Panel, the Panel considers the disputed domain name to be confusingly similar to the “AASKI” mark, as it fully incorporates the mark with the mere addition of a generic term. Albeit pejorative, such term does not dispel the likelihood of confusion between the prior mark and the disputed domain name. The Panel also notes that Respondent – without prejudice to the result of a lawsuit – does not have right nor legitimate interest in the disputed domain name and that such domain name was primarily registered and used to disrupt Complainant’s business, whereas Respondent’s free speech (i.e. the website set on the disputed domain name) could have been exercised on another domain name, which would not reproduce Complainant’s trademark.
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.
Procedural Issue: Concurrent Court Proceedings
Respondent asserts that there is a concurrent lawsuit. However, the indications provided by the latter show that the litigation relates to a claim in liaison with defamation, initiated by individuals, including Mr. Parikh (CEO of Complainant) against Respondent. The Complainant itself is not part of such proceeding. Further, in the course of this proceeding, arose questions regarding the content of the <aaskitreason.com> website. However, it seems that the question of ownership of the disputed domain name was not at stake, at least from the evidence submitted in the present case.
Previous Panels have already chosen to proceed with a UDRP case despite concurrent court proceeding (See for instance Western Florida Lighting, Inc. v. Samantha Ramirez, SamiRami, SESCO Lighting, Inc., and Cynthia Parker-Chillemi, October 2, 2008 WIPO case No. D2008-122: “the Panel does not find that it is necessary or advantageous to await a judicial determination of the issues raised in the federal litigation in order to reach a decision strictly under the Policy. This administrative proceeding under the Policy concerns only control of the Domain Name, not any of the other remedies at issue in the federal litigation. It is not binding on the court, and it does not preclude the prosecution of any claims, defenses, or counterclaims in the federal litigation”).
Hence, the Panel decides to pursue with the present case and issue a decision in the matter.
Complainant has, to the view of the Panel, shown valid trademark right for the “AASKI” sign. First of all, the said sign is the company and commercial name of the company and Complainant has been using this sign in connection with its software related activities for numerous years, namely since 1997. Secondly, the fact that the “AASKI” sign is not a registered trademark does not preclude the finding that Complainant owns rights for this sign. Indeed, due to the extensive use of the “AASKI” sign by Complainant – the Panel inter alia notes that all first results on Google’s databases relate to Complainant – establishes Common Law rights in its favor. Previous Panels have already acknowledged that the Policy does not state that owning a registered trademark is a mandatory factor to consider that a Complainant owns rights (See for instance the decision Microsoft Corporation v. Story Remix / Inofficial, FA 1734934, July 10, 2017).
The disputed domain name, <aaskitreason.com>, fully incorporates the “AASKI” sign, associated to the generic negative term “treason”. Although some Panels consider that the addition of a negative term shows per se that the domain name does not emanate from a Complainant, numerous Panels rather adopt the vision that it is sufficient for a Complainant’s trademark to be recognizable in the disputed domain name to consider that the first condition of the UDRP is satisfied.
A previous Panel has for instance considered that “the affixation of negative terms does not defeat a finding of confusing similarity” (See the decision Chevron Intellectual Property LLC v. andrew toro, FA 1487014, April 11, 2013).
Neither does a gTLD, such as <.com> in the present case, allows to dispel the likelihood of confusion between the disputed domain name and Complainant’s prior rights for the sign “AASKI”.
In view of the above, the Panel finds that the disputed domain name is confusingly similar to the “AASKI” mark under the Policy ¶ 4(a)(i).
Complaint is required to make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name. If the prima facie case is successful, then the burden of proof shifts to Respondent.
Here, several elements raised by Complainant establish such prima facie case.
First, Complainant contends that it has no legal link with the Respondent and that the latter was never authorized to register the disputed domain name. Secondly, Complainant indicates that the disputed domain name is used for a website propagating “denigrations, accusations, and actions that the Respondent made against the company bearing this name and its trademarks”.
Respondent tries to rebut Complainant’s assessments, inter alia by stating that Mr. Parikh has filed an “extensive lawsuit (…) against Mr. George and as part of the fraudulent complaint sought to gain Restraining Order against this very same website” and by indicating that after the Judge’s order in this case, did not contest that any of the remaining material on the website was not accurate, whereas the Judge has invited him to identify and prove fake information on the website if any.
Furthermore, Respondent considers that it has right in the disputed domain name since it is using the same to enjoy his right to free speech, to explain elements as to how Mr. Parikh, managing director of AASKI, allegedly frauded him.
Both Parties have put forward various arguments as to who is lying, who is stating true facts, as to judicial proceedings pertaining to a deal that was not sealed, which are quite complex. However, the Panel deems that, despite all discontent Respondent seems to feel toward Complainant, whether justified or not, no element tends to show that the latter had right nor legitimate interest in registering and using a domain name including Complainant’s rights for the sign “AASKI”, inter alia since the litigation between the Parties pertain to a defamation matter between individuals.
Previous Panels have already considered free speech of the Respondent and its “legitimate interest in criticizing the activities of organizations like the Complainant (…) is a very different thing from having a right or legitimate interest in respect of [a domain name]” (See WIPO case Compagnie Generale des Matieres Nucleaires v. Greenpeace International, D2001-0376, March 14, 2001).
In conclusion, the Panel considers that Respondent does not show any right nor legitimate interest in the disputed domain name in accordance with Paragraph 4(a)(ii) of the Policy.
Paragraph 4(a)(iii) of the Policy requires that Complainant show that the disputed domain name has been registered and is being used in bad faith.
There is no doubt that Respondent specifically targeted Complainant’s company name and “AASKI” trademark when registering the disputed domain name. Complainant indicates that Respondent informed it that it would register a domain name to broadcast information about the transaction that was contemplated but not settled, before doing so. Respondent confirmed this allegation. Also through the use made of the website, it is clear that Respondent had actual knowledge of Complainant’s rights (See for instance the decision Orbitz Worldwide, LLC v. Domain Librarian, February 6, 2019, FA 1535826).
Therefore, the Panel considers that the disputed domain name was registered in
bad faith. The website that is set on the disputed domain name relates to a failed
deal and to practices that Respondent considers fraudulent maneuvers emanating
from several individuals, including Complainant’s CEO, Mr. Parikh, pertaining
to that deal. The Panel wishes to clearly states that it is not in a position
to assess whether the content on the website is true or false.
The answer to the question of whether the disputed domain name is used in bad faith is in itself difficult in view of all elements provided by the Parties and is further complicated by the fact that both Parties are from the United States and that the US Constitution, in its First Amendment, guarantees the right to free speech.
Nonetheless, the Panel considers the disputed domain name has been used in bad faith as it incorporates the “AASKI” trademark to propagate information which factually rather relate to individuals (such as Mr. Parikh). It could be argued that such information also relates to AASKI Sports, LLC, but not to the AASKI Group as a whole. Hence, the use of such a domain name to assess that Complainant’s CEO, among others, committed fraud (lots of documentation, not always crystal clear, are provided) is in the nature of harming the “AASKI” activity is a whole. The registration and use of the disputed domain name is likely to cause disruption to Complainant’s activities, even those relating to software and not related to the failed transaction.
It also seems that at some point the content on the website had to be modified further to a Court order, which shows Respondent’s will to tarnish Complainant and its trademark. Such goal is also supported by the fact that Respondent sent e-mails to Complainant’s employees, the US Army, and the Government Accountability Office to “warn” them about Complainant.
In view of the above, the Panel considers that the disputed domain name has been registered and used in bad faith, in the sense of the Policy Paragraph 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED, without prejudice of a future judicial decision.
Accordingly, it is Ordered that the <aaskitreason.com> domain name be TRANSFERRED from Respondent to Complainant.
Nathalie Dreyfus, Panelist
Dated: April 29, 2019
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