Splunk Inc. v. Steven Kamis / Kamis Investments, Inc.
Claim Number: FA1404001555591
Complainant is Splunk Inc. (“Complainant”), represented by Pamela S. Chestek, North Carolina, USA. Respondent is Steven Kamis / Kamis Investments, Inc. (“Respondent”), Florida, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <splunkdata.com>, registered with GoDaddy.com, 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.
Debrett G. Lyons as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on April 23, 2014; the National Arbitration Forum received payment on April 23, 2014.
On April 23, 2014, GoDaddy.com, LLC confirmed by e-mail to the National Arbitration Forum that the <splunkdata.com> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, 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 24, 2014, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 14, 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@splunkdata.com. Also on April 24, 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 May 19, 2014, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Debrett G. Lyons 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 a formal response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant asserts trademark rights in SPLUNK and alleges that the disputed domain name is confusingly similar to that trademark.
Complainant alleges that Respondent has no rights or legitimate interests in the disputed domain name.
Complainant alleges that Respondent registered and used the disputed domain name in bad faith.
B. Respondent
No formal Response was received. When notified of the Complaint Respondent sent a particularly offensive email to the Forum.
The factual findings pertinent to the decision in this case are that:
1. Complainant sells a computer program by reference to the trademark SPLUNK;
2. the program is designed to search bulk data quickly;
3. the trademark SPLUNK is the subject of United States Patent and Trademark Office (“USPTO”) Reg. No 3,269,249 registered July 24, 2007;
4. the disputed domain name was registered on January 26, 2014;
5. the domain name directs Internet users to a website with links to pages from eBay and Amazon where Complainant’s goods are offered for sale; and
6. there is no commercial agreement between the parties and Complainant has not authorized Respondent to use its trademark or to register any domain name incorporating its 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.
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.”).
Paragraph 4(a)(i) of the Policy requires a two-fold enquiry – a threshold investigation into whether a complainant has rights in a trademark, followed by an assessment of whether the disputed domain name is identical or confusingly similar to that trademark.
It is well established by decisions under paragraph 4(a)(i) of the Policy that a trademark registered with a national authority is evidence of trademark rights (see State Farm Mut. Auto. Ins. Co. v. Periasami Malain, FA 705262 (Nat. Arb. Forum June 19, 2006) (“Complainant’s registrations with the United States Patent and Trademark Office of the trademark, STATE FARM, establishes its rights in the STATE FARM mark pursuant to Policy, paragraph 4(a)(i).”). Since Complainant provides evidence of its registration with the USPTO, Panel is satisfied that Complainant has trademark rights in the term SPLUNK.
Panel also finds that the disputed domain name is confusingly similar to the trademark since, for the purposes of comparison, the gTLD, “.com”, can be ignored and, within the context of Complainant’s business under the trademark, the added word “data” is purely descriptive and of no source distinguishing value (see Rollerblade, Inc. v. McCrady, D2000-0429 (WIPO June 25, 2000) finding that the top level of the domain name such as “.net” or “.com” does not affect the domain name for the purpose of determining whether it is identical or confusingly similar; Am. Express Co. v. MustNeed.com, FA 257901 (Nat. Arb. Forum June 7, 2004) finding <amextravel.com> confusingly similar to AMEX; Westfield Corp. v. Hobbs, D2000-0227 (WIPO May 18, 2000) finding <westfieldshopping.com> confusingly similar to WESTFIELD; Gillette Co. v. RFK Assocs., FA 492867 (Nat. Arb. Forum July 28, 2005) finding <duracellbatteries.com> confusingly similar to DURACELL).
Panel finds that Complainant has satisfied the requirements of paragraph 4(a)(i) of the Policy.
Paragraph 4(c) of the Policy states that any of the following circumstances, in particular but without limitation, if found by the Panel to be proved based on its evaluation of all evidence presented, shall demonstrate rights or legitimate interests to a domain name for purposes of paragraph 4(a)(ii) of the Policy:
(i) before any notice to you of the dispute, your use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) you (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or
(iii) you are making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trade mark or service mark at issue.
Complainant need only make out a prima facie case that Respondent has no rights or legitimate interests in the disputed domain name, after which the onus shifts to Respondent to rebut that case by demonstrating those rights or interests (see Do The Hustle, LLC v. Tropic Web, D2000‑0624 (WIPO Aug. 21, 2000).
The publicly available WHOIS information identifies Respondent as “Steven Kamis / Kamis Investments, Inc.”. This does not provide any prima facie evidence that Respondent might be commonly known by the disputed domain name.
There is no evidence that Respondent has any trademark rights and there is no evidence that Complainant has authorized Respondent to use the trademark. Complainant denies any such authorization.
There is no clear evidence that the disputed domain name has been used in connection with a bona fide offering of goods or services prior to notice of the dispute. On the contrary, Complainant provides evidence that the domain name directs Internet users to a website with links to Complainant’s products offered for sale on the eBay and Amazon websites. The website carries the heading “Splunk Data” as well as the subheadings “Hot New Releases,” and “Top Rated Products” and offers products such as “Exploring Splunk By David Carasso” and “Implementing Splunk: Big Data Reporting and Development For Operational Intelligence” both with listed prices and product descriptions. Complainant’s submission that Respondent is attempting to pass itself off as Complainant is not unreasonable (see Mortgage Research Center LLC v. Miranda, FA 993017 (Nat. Arb. Forum July 9, 2007) (“Because [the] respondent in this case is also attempting to pass itself off as [the] complainant, presumably for financial gain, the Panel finds the respondent is not using the <mortgageresearchcenter.org> domain name for 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).”).
Panel finds that Complainant has established a prima facie case. The onus shifts to Respondent to establish a legitimate interest in the domain name. In the absence of a Response, that onus has not been discharged and Panel finds that Respondent has no rights or interests. Complainant has satisfied the second limb of the Policy.
Complainant must prove on the balance of probabilities both that the disputed domain name was registered in bad faith and used in bad faith.
Further guidance on that requirement is found in paragraph 4(b) of the Policy, which sets out four scenarios of per se bad faith but in this case there is no need to examine Respondent’s conduct against those criteria since it is manifestly clear that Respondent both registered and then used the domain name in bad faith.
Panel finds it more likely than not that Respondent targeted Complainant’s trademark at the time of registration of the domain name. The domain name itself provides partial evidence of that finding as does Panel’s acceptance of the claim made by Complainant that Respondent shows a pattern of registering domain names featuring other’s trademarks. Panel finds that Respondent registered the domain name in bad faith.
Respondent then used the disputed domain name to display hyperlinks to sales of Complainant’s products on eBay and Amazon websites. That use, amongst other things, has the likely result of diverting Internet users interested in Complainant’s goods away from Complainant’s website, thereby at one level disrupting Complainant’s business. Additionally, the resolving website carries the fraudulent copyright notice, “© 2010-2014 Splunk Data, Inc.”. The use of the domain name has been in bad faith.
Complainant has established the third and final aspect of the Policy.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <splunkdata.com> domain name be TRANSFERRED from Respondent to Complainant.
Debrett G. Lyons, Panelist
Dated: May 28, 2014
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