Paul Torok v. Auroville / Hendrik van Poederooijen
Claim Number: FA1903001834283
Complainant is Paul Torok (“Complainant”), represented by Thomas F. Zuber of Thomas F. Zuber, California, USA. Respondent is Auroville / Hendrik van Poederooijen (“Respondent”), India.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <spirulinacrunchies.com>, registered with eNom, 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 Honourable Neil Anthony Brown QC as Panelist.
Complainant submitted a Complaint to the Forum electronically on March 15, 2019; the Forum received payment on March 15, 2019.
On March 19, 2019, eNom, LLC confirmed by e-mail to the Forum that the <spirulinacrunchies.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 29, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 18, 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@spirulinacrunchies.com. Also on March 29, 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.
Having received no response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.
On April 19, 2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed The Honourable Neil Anthony Brown QC 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 made the following contentions.
Complainant owns and operates a business that sells a food product made from blue-green algae. Complainant has rights in the SPIRULINA CRUNCHIES mark through its registration of the mark with the United States Patent and Trademark Office (“USPTO”) (e.g. Reg. No. 3,834,205, registered Aug. 17, 2010, filed Nov. 19, 2009). See Compl. Annex A. Respondent’s <spirulinacrunchies.com> domain name is confusingly similar to Complainant’s mark as it incorporates the mark in its entirety and merely adds the “.com” generic top-level domain (“gTLD”).
Respondent has no rights or legitimate interests in the <spirulinacrunchies.com> domain name. Respondent is not commonly known by the disputed domain name, nor has Complainant authorized, licensed, or otherwise permitted Respondent to use the mark. Respondent also does not use the disputed domain name in connection with a bona fide offering of goods or services or legitimate noncommercial or fair use. Rather, Respondent fails to use the domain name in connection with an active website. See Compl. Annexes E & F.
Respondent registered and uses the <spirulinacrunchies.com> domain name in bad faith. Respondent has consistently used the domain name to lead to a domain parking page or some other non-substantive web page. See Compl. Annexes E & F
B. Respondent
Respondent failed to submit a Response in this proceeding.
1. Complainant is a United States individual who owns and operates a business that sells a food product made from blue-green algae.
2. Complainant has established its trademark rights in the SPIRULINA CRUNCHIES mark through its registration of the mark with the United States Patent and Trademark Office (“USPTO”) (e.g. Reg. No. 3,834,205, registered Aug. 17, 2010, filed Nov. 19, 2009).
3. The <spirulinacrunchies.com> domain name was registered on November 11, 2009 and Respondent became the domain name holder on or about October 11, 2013.
4. Respondent fails to use the domain name in connection with an active website.
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 set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
The first question that arises is whether Complainant has rights in a trademark or service mark on which it may rely. Complainant claims rights in the SPIRULINA CRUNCHIES mark through its registration of the mark with the USPTO (e.g. Reg. No. 3,834,205, registered Aug. 17, 2010, filed Nov. 19, 2009). See Compl. Annex A. Registration of a mark with the USPTO sufficiently confers a complainant’s rights in a mark for the purposes of Policy ¶ 4(a)(i). See DIRECTV, LLC v. The Pearline Group, FA 1818749 (Forum Dec. 30, 2018) (“Complainant’s ownership of a USPTO registration for DIRECTV demonstrate its rights in such mark for the purposes of Policy ¶ 4(a)(i).”). Accordingly, the Panel finds that Complainant has established rights in the SPIRULINA CRUNCHIES mark for the purposes of Policy ¶ 4(a)(i).
The next question that arises is whether the disputed domain name is identical or confusingly similar to Complainant’s SPIRULINA CRUNCHIES mark. Complainant argues that Respondent’s <spirulinacrunchies.com> domain name is confusingly similar to Complainant’s mark as it incorporates the mark in its entirety and merely adds the “.com” gTLD. Similar changes in a registered mark have failed to distinguish a domain name sufficiently for the purposes of Policy ¶ 4(a)(i). See Tupelo Honey Hospitality Corporation v. King, Reggie, FA 1732247 (Forum July 19, 2017) (“Addition of a gTLD is irrelevant where a mark has been fully incorporated into a domain name and the gTLD is the sole difference.”). The Panel may therefore find that the <spirulinacrunchies.com> domain name is identical and/or confusingly similar to the SPIRULINA CRUNCHIES mark under Policy ¶ 4(a)(i).
Complainant has thus made out the first of the three elements that it must establish.
It is now well established that 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”).
The Panel finds that Complainant has made out a prima facie case that arises from the following considerations:
(a) Respondent has chosen to take Complainant’s SPIRULINA CRUNCHIES trademark and to use it in his domain name;
(b) Respondent became the domain name holder on or about October 11, 2013;
(c) Respondent fails to use the domain name in connection with an active website;
(d) Respondent has engaged in these activities without the consent or approval of Complainant;
(e) Complainant contends that Respondent has no rights or legitimate interests in the <spirulinacrunchies.com> domain name, as Respondent is not commonly known by the disputed domain name, nor has Complainant authorized, licensed, or otherwise permitted Respondent to use the mark. Relevant information includes the WHOIS, assertions by a complainant regarding the nature of its relationship with a respondent, and other evidence in the record to support these assertions. See Amazon Technologies, Inc. v. Suzen Khan / Nancy Jain / Andrew Stanzy, FA 1741129 (Forum Aug. 16, 2017) (finding that respondent had no rights or legitimate interests in the disputed domain names when the identifying information provided by WHOIS was unrelated to the domain names or respondent’s use of the same); see also Google LLC v. Bhawana Chandel / Admission Virus, FA 1799694 (Forum Sep. 4, 2018) (concluding that Respondent was not commonly known by the disputed domain name where “the WHOIS of record identifies the Respondent as “Bhawana Chandel,” and no information in the record shows that Respondent was authorized to use Complainant’s mark in any way.”). The WHOIS identifies “Auroville / Hendrik van Poederooijen” as the registrant, and nothing in the record indicates that Complainant authorized Respondent to use the mark for any purpose. Accordingly, the Panel agrees that Respondent is not commonly known by the <spirulinacrunchies.com> domain name under Policy ¶ 4(c)(ii);
(f) Complainant argues that Respondent fails to use the domain name in connection with an active website. Failure to make active use of a confusingly similar domain name can evince a lack of rights and legitimate interests under Policy ¶¶ 4(c)(i) and (iii). See Dell Inc. v. link growth / Digital Marketing, FA 1785283 (Forum June 7, 2018) (“Respondent’s domain names currently display template websites lacking any substantive content. The Panel finds that Respondent has does not have rights or legitimate interests with respect of the domain name per Policy ¶¶ 4(c)(i) or (iii).”). Complainant provides a screenshot of the resolving webpage, which displays no content. See Compl. Annex E. Complainant also provides a historical screenshot of the resolving webpage from May 18, 2013, which displays an image of a woman and a search bar with no other content. See Compl. Annex F. Accordingly, the Panel finds that Respondent fails to make use of the domain name, failing to use the domain name in connection with 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).
All of these matters go to make out the prima facie case against Respondent. As Respondent has not filed a Response or attempted by any other means to rebut the prima facie case against it, the Panel finds that Respondent has no rights or legitimate interests in the disputed domain name.
Complainant has thus made out the second of the three elements that it must establish.
It is clear that to establish bad faith for the purposes of the Policy, Complainant must show that the disputed domain name was registered in bad faith and has been used in bad faith. It is also clear that the criteria set out in Policy ¶ 4(b) for establishing bad faith are not exclusive, but that Complainants in UDRP proceedings may also rely on conduct that is bad faith within the generally accepted meaning of that expression.
Having regard to those principles, the Panel finds that the disputed domain name was registered and used in bad faith. That is so for the following reasons.
First, the examples of bad faith registration and use set forth in paragraph 4(b) of the Policy are not meant to be exhaustive of all circumstances from which bad faith may be found. See, e.g., Telstra Corporation Limited v. Nuclear Marshmallows, D2000-0003 (WIPO Feb. 18, 2000). The overriding objective of the Policy is to curb the abusive registration of domain names in circumstances where the registrant seeks to profit from and exploit the trademark of another. See, e.g., Match.com, LP v. BillZag and NWLAWS.ORG, D2004-0230 (WIPO June 2, 2004). While Complainant has not made any arguments that would fit within the specific criteria in Policy ¶ 4(b), the Panel finds Respondent’s actions amount to bad faith under the nonexclusive inquiry that may be made under Policy ¶ 4(a)(iii).
In particular, Complainant argues that Respondent has consistently used the domain name to lead to a domain parking page or some other non-substantive web page. Inactively holding a confusingly similar domain name can evince bad faith under Policy ¶ 4(a)(iii). See VideoLink, Inc. v. Xantech Corporation, FA1503001608735 (Forum May 12, 2015) (“Failure to actively use a domain name is evidence of bad faith registration and use pursuant to Policy ¶ 4(a)(iii).”). The Panel is reminded of Complainant’s provided screenshots, which shows that the domain name’s current resolving webpage displays no content, and the previous webpage from May 18, 2013 displays an image of a woman and a search bar with no other content. See Compl. Annexes E & F. As such, the Panel agrees that Respondent’s failure to use the domain name demonstrates Respondent’s bad faith under the Policy.
Finally, in addition and having regard to the totality of the evidence, the Panel finds that, in view of Respondent’s registration of the disputed domain name using the SPIRULINA CRUNCHIES mark and in view of the conduct of Respondent since acquiring the disputed domain name, Respondent registered and used it in bad faith within the generally accepted meaning of that expression.
Complainant has thus made out the third of the three elements that it must establish.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <spirulinacrunchies.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honourable Neil Anthony Brown QC
Panelist
Dated: April 21, 2019
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