Housecanary, Inc. v. Domain Admin / Whois Privacy Corp.
Claim Number: FA2007001902694
Complainant is Housecanary, Inc. (“Complainant”), represented by Don C. Moody, US. Respondent is Domain Admin / Whois Privacy Corp. (“Respondent”), Bahamas.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <housecanery.com>, registered with Internet Domain Service BS Corp.
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.
James Bridgeman SC as Panelist.
Complainant submitted a Complaint to the Forum electronically on July 1, 2020; the Forum received payment on July 1, 2020.
On July 3, 2020, Internet Domain Service BS Corp confirmed by e-mail to the Forum that the <housecanery.com> domain name is registered with Internet Domain Service BS Corp and that Respondent is the current registrant of the name. Internet Domain Service BS Corp has verified that Respondent is bound by the Internet Domain Service BS Corp 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 8, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 28, 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@housecanery.com.
Also on July 8, 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 July 30, 2020 pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed James Bridgeman SC 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 disputed domain name <housecanery.com> be transferred from Respondent to Complainant.
A. Complainant
Complainant claims rights in the HOUSECANARY mark acquired by its ownership of the United States trademark registration described below and its use of the mark in the provision of its data analytics and consultancy business including online at its primary website to which its <housecanary.com> domain name resolves.
Complainant alleges that the disputed domain name <housecanery.com> is confusingly similar to Complainant’s HOUSECANARY mark arguing that the relevant comparison is to be made with the second level portion of the disputed domain name. (i.e.“housecanery” only). Complainant submits that it is well-established that the top-level domain name extension (i.e. “.com”) should be disregarded for purposes of UDRP analysis. See Mick Jagger v. Denny Hammerton, FA 095261 (<mickjagger.com>) (Forum Sept. 11, 2000).
Complainant argues that as the second-level portion of the disputed domain name contains the HOUSECANARY mark in its entirety, with only one letter substituted (“e” for “a”), the registration of the disputed domain name amounts to “typo-squatting” which has repeatedly been held sufficient for a finding of confusing similarity under the Policy. See, e.g., Anheuser - Busch, Inc. v. Innovation Interactive, FA 152422 (<budwiser.com>) ( Forum Apr. 9, 2008).
Additionally, Complainant argues that both “e” and “a” are English vowels that could, in certain uses, sound virtually identical to one another (e.g. the word “very” rhymes with “dictionary”) and submits that this further supports a finding of confusing similarity. See Liberty Mutual Insurance Company v. Richard Jones, FA 330673 <libertymutuel.com>) (Forum July 23, 2010).
Complainant submits that the requirements of Policy ¶ 4(a)(i) have been met.
Complainant alleges that Respondent has no rights or legitimate interests in the disputed domain name arguing that Complainant is unable, after a good faith investigation, to locate any meaningful evidence showing that Respondent is “commonly known” by the term “HOUSECANARY,” or any stylistic variation thereof, whether as a business, or an individual proper name.
Additionally, Complainant asserts that Respondent is not in any way affiliated with Complainant, nor has it been licensed or permitted to use Complainant’s HOUSECANARY mark, or any domain name incorporating said mark, in interstate or global commerce.
Complainant submits that as it has therefore made a prima facie showing that Respondent has no rights or legitimate interests in respect of the disputed domain name and the burden of production now shifts to Respondent to demonstrate otherwise. See Lockheed Martin Corporation v. Grassroots Fitness Project, FA 1504539 (<lockheedmartian.net>) (Forum July 15, 2013).
Complainant alleges that the disputed domain name was registered and is being used in bad faith as it currently points to a “parking” page, displaying various “sponsored link” advertisements.
The text of these advertisements even refer to subjects such as “Vacation Rentals,” and “House Design Plans,” each readily call to mind real estate-related services. Complainant submits that real estate is one of the primary markets served by Complainant’s data analytics software and technology consulting services and argues that this alone could be sufficient to support a finding of bad faith under UDRP ¶ 4(a)(iii). See Bayerische Motoren Werke (BMW) AG v. Kang M. D2011-1086, (<shopbmw.com>) (WIPO Aug. 19, 2011).
Complainant argues that there is every reason to expect that Respondent (and/or its anonymous “customer”) registered the disputed domain name in order to create a likelihood of consumer of confusion with Complainant’s goods and services.
Complainant adds that the disputed domain name appears to have been specifically selected for not only its visual but also its phonological similarity, attempting to capitalize on some consumers who might accidentally misspell “canary” with an “e” instead of an “a.”
Complainant concludes that the circumstances indicate that there was a deliberate misspelling of Complainant’s mark with the specific intent by the registrant to confuse consumers into visiting the website to which the disputed domain name <housecanery.com> resolves instead of Complainant’s site, so as to obtain click-through commissions or some other “commercial gain” by exploiting the goodwill inherent in another’s trademark. See Wachovia Corporation v. Peter Carrington, D2002-0775, (<wochovia.com>) (WIPO Oct. 2, 2002).
Complainant also asks the Panel to note that Respondent is using a WHOIS “privacy” listing service and argues that this means the registrant of the domain name is only a mere “nominee who holds bare legal title for an undisclosed beneficiary (who is the real party in interest). Complainant argues that in a commercial context, this raises the rebuttable presumption of bad faith registration and use of the domain name. See Kinnser Software, Inc. v. Domain May Be for Sale, Check Afternic.Com Domain Admin et al, FA 618122 (<kinnser.org>)(Forum June 16, 2015).
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant provides data analytics software and consulting services and owns and uses the HOUSECANARY mark in the provision of its goods and services.
Complainant is the registered owner of United States registered trademark, HOUSECANARY, registration number 4,937,801, registered on April 12, 2016 on the Principal Register for goods in international class 9.
Complainant has an established Internet presence and uses its domain name <housecanary.com> as the address of its principal website as well as and maintain several social networking accounts using the HOUSECANARY brand, including on Facebook, Instagram and other platforms.
The disputed domain name <housecanery.com> was registered on June 22, 2020 and resolves to a webpage with what appears to be pay-per-click links and no other content.
There is no information available about Respondent except for that provided in the Complaint, the Registrar’s WhoIs and the Registrar’s response to the Forum’s request for verification of the registration details of the disputed domain name.
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”).
Complainant has adduced uncontested, clear and convincing evidence that it has rights in the HOUSECANARY mark acquired by its ownership of the United States trademark registration described above and its use of the mark in the provision of its data analytics and consultancy business including online at its primary website to which its <housecanary.com> domain name resolves.
The disputed domain name is almost identical to Complainant’s having only one letter substituted (“e” for “a”).
The combination of the elements “house” and “canary” in Complainant’s trademark references bird, whereas the combination of the words “house” and “canary” have not obvious reference. There is an English language word “cannery” which Complainant does not mention, but this has a double “n” in the spelling.
Having compared both the disputed domain name and Complainant’s mark this Panel finds that the substituted letter creates no distinguishing difference and the disputed domain name is both visually and aurally confusingly similar to the HOUSECANARY mark in which Complainant has rights.
For the purposes of comparison, the gTLD <.com> extension may be ignored in the circumstances of this Complaint as a domain extension, is recognized as a technical necessity for a domain name and serves no other purpose or meaning in the context.
This Panel finds therefore that Complainant has succeeded in the first element of the test in Policy ¶ 4(a)(i).
Complainant has made out a prima facie case that Respondent has no rights or legitimate interests in the disputed domain name arguing that Complainant is unable, after a good faith investigation, to locate any meaningful evidence showing that Respondent is “commonly known” by the term “HOUSECANARY,” or any stylistic variation thereof, whether as a business, or an individual proper name; and that Respondent is not in any way affiliated with Complainant, nor has it been licensed or permitted to use Complainant’s HOUSECANARY mark, or any domain name incorporating said mark, in interstate or global commerce.
It is well established that if Complainant makes out a prima facie case, the burden of production shifts to Respondent to prove his rights or legitimate interests in the disputed domain name. Respondent has failed to file any Response to the Complaint or provide any defense to Complainant’s allegations and so has not discharged the burden. In the circumstances this Panel must find that on the balance of probabilities Respondent has no rights or legitimate interests in the disputed domain name.
Complainant has therefore succeeded in the second element of the test in Policy ¶ 4(a)(ii).
The disputed domain name is almost identical to Complainant’s trademark HOUSECANARY and to Complainant’s domain name <housecanary.com> domain name which is the address of Complainant’s primary website.
The element “canery” in the disputed domain name has no obvious meaning in itself.
Therefore this Panel finds that on the balance of probabilities the registrant of the disputed domain name was aware of Complainant, its name, mark, domain name and website when the disputed domain name was registered. In the absence of any Response or explanation, this Panel also finds that on the balance of probabilities the disputed domain name was registered to target Complainant and its goodwill and reputation to divert Internet traffic.
On the information in the record, it is most probable that Respondent is engaged in typosquatting as alleged by Complainant.
This Panel finds therefore that on the balance of probabilities, by causing, permitting or allowing the disputed domain name to resolve to a parking page as described above, Respondent is intentionally attempting to attract, for commercial gain, Internet users to its web site by creating a likelihood of confusion with Complainant's mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s web site and is therefore using the disputed domain name in bad faith.
Complainant has therefore succeeded in the third element of the test in Policy ¶ 4(a)(iii) and is entitled to succeed in this Complaint.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <housecanery.com> domain name be TRANSFERRED from Respondent to Complainant.
_____________________________________
James Bridgeman SC
Panelist
Dated: July 31, 2020
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