Gorilla Trades, Inc. v. Domain Network Solutions LLC
Claim Number: FA1401001539218
Complainant is Gorilla Trades, Inc. (“Complainant”), represented by Marc S. Dobin of Dobin Law Group, P.A., Florida, USA. Respondent is Domain Network Solutions LLC (“Respondent”), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <gorillatrades.net>, registered with ENOM, INC.
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.
Paul M. DeCicco, as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on January 14, 2014; the National Arbitration Forum received payment on January 14, 2014.
On January 15, 2014, ENOM, INC. confirmed by e-mail to the National Arbitration Forum that the <gorillatrades.net> domain name is registered with ENOM, INC. and that Respondent is the current registrant of the name. ENOM, INC. has verified that Respondent is bound by the ENOM, 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 January 15, 2014, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 4, 2014 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@gorillatrades.net. Also on January 15, 2014, 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 National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On February 7, 2014, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Paul M. DeCicco as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration 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 National Arbitration 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 contends as follows:
Complainant, Gorilla Trades, Inc. uses its GORILLATRADES mark in connection with its financial services subscription newsletter.
Complainant is the owner of a servicemark registration with the United States Patent and Trademark Office (“USPTO”) for the GORILLATRADES mark (e.g., Reg. No. 3,118,819, registered July 25, 2006).
The at-issue domain name is identical to Complainant’s primary domain name, <gorillatrades.com> other than the generic top-level domain (“gTLD”) of “.net” instead of the gTLD of “.com.”
Respondent has no rights or legitimate interests in the disputed domain name. Respondent is not nor has it ever been known by the domain name. Respondent has registered the at-issue domain name and directs users to a parking page where Respondent is offering the domain for sale both on the parking page and on registrant’s own website. The parking page offers other stock picking services and general investing websites in addition to offering <gorillatrades.net> for sale.
Respondent registered and is using the disputed domain name in bad faith. Respondent is offering the domain for sale both on the parking page and on registrant’s own website. Respondent has registered the at-issue domain name and directs users to a parking page where Respondent is offering the domain for sale both on the parking page and on registrant’s own website. The parking page offers other stock picking services and general investing websites in addition to offering <gorillatrades.net>, for sale.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns a USPTO registered servicemark for the GORILLATRADES mark.
Respondent is not affiliated with Complainant and had not been authorized to use the GORILLATRADES mark in any capacity.
Respondent registered the at-issue domain name after Complainant acquired rights in GORILLATRADES.
Respondent uses the <gorillatrades.net> domain name to direct Internet users to a parking page where Respondent is offering the domain for sale both on the parking page and on registrant’s own website and where links to vendors with similar services as those of Complainant are displayed.
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(e), 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 (Nat. Arb. 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.”).
The at-issue domain name is identical to a servicemark in which Complainant has rights.
Complainant demonstrates that it has rights in a mark for the purposes of the Policy by virtue of its USPTO registration for the GORILLATRADES mark. See Microsoft Corp. v. Burkes, FA 652743 (Nat. Arb. Forum Apr. 17, 2006) (“Complainant has established rights in the MICROSOFT mark through registration of the mark with the USPTO.”). Moreover, Respondent’s at issue <gorillatrades.net> domain name is identical to Complainant’s GORILLATRADES servicemark since the second level domain name is Complainant’s servicemark and the addition of a top level domain name, here “.net,” is irrelevant to the Panel’s analysis under Policy ¶4(a)(i). See Pomellato S.p.A v. Tonetti, D2000-0493 (WIPO July 7, 2000) (finding <pomellato.com> identical to the complainant’s mark because the generic top-level domain (gTLD) “.com” after the name POMELLATO is not relevant).
Respondent lacks both rights and legitimate interests in respect of the at-issue domain name. Respondent is not authorized to use Complainant’s servicemark in any capacity and, as discussed below, there are no Policy ¶4(c) circumstances from which the Panel might find that Respondent has rights or interests in respect of the at‑issue domain name.
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 affirmative evidence of its rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006). Since Respondent failed to respond and as discussed below there is no evidence supporting any finding pursuant to Policy 4(c) suggesting that Respondent has rights in the at-issue domain name, Complainant’s prima facie showing acts conclusively.
WHOIS information for the at-issue domain name identifies Respondent as “Domain Network Solutions” and the record before the Panel contains no evidence that might otherwise tends to prove that Respondent is commonly known by the at-issue domain name notwithstanding the contrary WHOIS information. The Panel therefore finds that Respondent is not commonly known by the <gorillatrades.net> domain name for the purposes of Policy ¶ 4(c)(ii). See Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Nat. Arb. Forum July 17, 2006) (concluding that the respondent was not commonly known by the <coppertown.com> domain name where there was no evidence in the record, including the WHOIS information, suggesting that the respondent was commonly known by the disputed domain name).
Respondent uses the <gorillatrades.net> domain name to direct users to a parking page where Respondent is offering the domain for sale both on the parking page and on registrant’s own website. Additionally, the parking page offers other stock picking services and general investing websites. To wit, the parking page displays competing hyperlinks titled “Penny Stock Investment,” “Trading Risk,” “Stock Market News Today,” and others. Respondent’s use of the at-issue domain name in this manner is neither a bona fide offering of goods or services under Policy ¶¶ 4(c)(i), nor a legitimate or fair use of the domain name under Policy ¶¶ 4(c)(iii). See Expedia, Inc. v. Compaid, FA 520654 (Nat. Arb. Forum Aug. 30, 2005)(finding that respondent’s use of the <expediate.com> domain name to redirect Internet users to a website featuring links to travel services that competed with complainant was not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii)).
In light of the uncontroverted evidence, Complainant satisfies its initial burden and conclusively demonstrates Respondent’s lack of rights and interests in respect of the at-issue domain name pursuant to Policy ¶4(a)(ii).
The at-issue domain name was registered and is being used in bad faith. As discussed below Policy ¶4(b) bad faith circumstances are present and urge that Respondent acted in bad faith pursuant to Policy ¶4(a)(iii).
First, as mentioned above Respondent is offering the <gorillatrades.net> domain name for sale both on Respondent’s parking page and on Respondent’s own website. Respondent’s general offer for sale of a domain name that is identical to Complainant’s servicemark suggests bad faith use and registration pursuant to Policy ¶ 4(b)(i). See Bank of Am. Corp. v. Nw. Free Cmty. Access, FA 180704 (Nat. Arb. Forum Sept. 30, 2003) (“Respondent's general offer of the disputed domain name registration for sale establishes that the domain name was registered in bad faith under Policy ¶ 4(b)(i).”).
Furthermore, and as also mentioned above, in addition to offering <gorillatrades.net> for sale Respondent registered and uses the <gorillatrades.net> domain name to direct Internet users to a parking page offering links to stock picking services and general investing websites. Such use of the domain name demonstrates Respondents bad faith pursuant to Policy ¶4(b)(iv). See AltaVista Co. v. Krotov, D2000-1091 (WIPO Oct. 25, 2000) (finding bad faith under Policy ¶ 4(b)(iv) where the respondent’s domain name resolved to a website that offered links to third-party websites that offered services similar to complainant’s services and merely took advantage of Internet user mistakes).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <gorillatrades.net> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: February 11, 2014
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