Phusion Projects, LLC v. Eric Vogt
Claim Number: FA2004001892938
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <fourloko.net>, registered with Google 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.
Darryl C. Wilson, as Panelist.
Complainant submitted a Complaint to the Forum electronically on April 20, 2020; the Forum received payment on April 21, 2020.
On April 22, 2020, Google LLC confirmed by e-mail to the Forum that the <fourloko.net> domain name is registered with Google LLC and that Respondent is the current registrant of the name. Google LLC has verified that Respondent is bound by the Google 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 April 23, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 13, 2020 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@fourloko.net. Also, on April 23, 2020, 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 May 15, 2020, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Darryl C. Wilson 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 is in the adult-beverages industry and has over 100 employees and over $1 billion worldwide revenue. Complainant has rights in the FOUR LOKO mark through its registration with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 4,428,131, registered Nov. 5, 2013). Respondent’s <fourloko.net> domain name is identical to Complainant’s FOUR LOKO mark. Respondent incorporates the mark in its entirety and only adds the “.net” generic top-level domain (“gTLD”).
Respondent lacks rights or legitimate interests in the <fourloko.net> domain name as Respondent is not commonly known by the disputed domain name nor did Complainant authorize Respondent to use the mark in any way. Respondent fails to make a bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent’s domain name resolves to a personal Twitter account that is not affiliated with Complainant in any way in an attempt to divert internet users.
Respondent registered and used the <fourloko.net> domain name in bad faith as Respondent’s domain name redirects internet users to an unrelated webpage. Respondent had actual knowledge of Complainant’s rights in the FOUR LOKO mark prior to the registration of the disputed domain name.
B. Respondent
Respondent failed to submit responsive pleadings in this case. Respondent did provide correspondence to Complainant and Complainant’s counsel, as well as to the Forum, indicating the Complainant can have the domain name.
Complainant is Phusion Projects, LLC (“Complainant”), of Chicago, IL, USA. Complainant is the owner of domestic registrations for the mark FOUR LOKO which it has continuously used since at least as early as 2008, in connection with its provision of various alcoholic beverages and distilled spirits as well as on various types of clothing and headgear. Complainant also operates on the internet at its <fourloko.com> website.
Respondent is Eric Vogt (“Respondent”), of Catonsville, MD, USA. Respondent’s registrar, Google LLC, has no address provided. The Panel notes that the <fourloko.net> domain name was registered on or about March 28, 2020.
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”).
PRELIMINARY ISSUE: CONSENT TO TRANSFER
The Forum was copied on documentation submitted from Respondent to Complainant, which is identified in this proceeding as “Other Correspondence.” In this document, Respondent purports to consent to the transfer of the <fourloko.net> domain name. However, after the initiation of this proceeding, GOOGLE, LLC placed a hold on Respondent’s account and therefore Respondent cannot transfer the disputed domain name while this proceeding is still pending. Considering the current circumstances, the Panel finds that since Respondent has not contested the transfer of the disputed domain name but instead agrees to transfer the domain name in question to Complainant, the Panel will forego the traditional UDRP analysis and order an immediate transfer of the <fourloko.net> domain name. See Boehringer Ingelheim Int’l GmbH v. Modern Ltd. – Cayman Web Dev., FA 133625 (Forum Jan. 9, 2003) (transferring the domain name registration where the respondent stipulated to the transfer); see also Malev Hungarian Airlines, Ltd. v. Vertical Axis Inc., FA 212653 (Forum Jan. 13, 2004) (“In this case, the parties have both asked for the domain name to be transferred to the Complainant . . . Since the requests of the parties in this case are identical, the Panel has no scope to do anything other than to recognize the common request, and it has no mandate to make findings of fact or of compliance (or not) with the Policy.”); see also Disney Enters., Inc. v. Morales, FA 475191 (Forum June 24, 2005) (“[U]nder such circumstances, where Respondent has agreed to comply with Complainant’s request, the Panel felt it to be expedient and judicial to forego the traditional UDRP analysis and order the transfer of the domain names.”). The Panel here orders the immediate transfer of the disputed domain name from Respondent to Complainant.
Respondent has consented to transfer.
Respondent has consented to transfer.
Respondent has consented to transfer.
As the Respondent has consented to transfer the domain name, the Panel concludes that Complainant’s requested relief shall be GRANTED.
Accordingly, it is Ordered that the <fourloko.net> domain name be immediately TRANSFERRED from Respondent to Complainant.
Darryl C. Wilson, Panelist
Dated: May 29, 2020
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