NATIONAL ARBITRATION FORUM
URS FINAL DETERMINATION
PayPal Inc. v. ENAME.GURU INC. et al.
Claim Number: FA1407001572119
DOMAIN NAME
<paypal.wiki>
PARTIES
| Complainant: PayPal Inc. of San Jose, CA, United States of America | |
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Complainant Representative: Hogan Lovells (Paris) LLP
David Taylor of Paris, France
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| Respondent: Ename.Guru Inc., a subsidiary of Hyper Media Group Inc. of Ocala, FL, United States of America | |
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Respondent Representative: Hyper Media Group Inc.
Matthew O'Byrne of Ocala, FL, United States of America
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REGISTRIES and REGISTRARS
| Registries: Top Level Design, LLC | |
| Registrars: NETIM |
EXAMINER
| The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Examiner in this proceeding. | |
| Ho-Hyun Nahm, as Examiner |
PROCEDURAL HISTORY
| Complainant Submitted: July 29, 2014 | |
| Commencement: July 29, 2014 | |
| Response Date: August 12, 2014 | |
| Having reviewed the communications records, the Examiner finds that the National Arbitration Forum has discharged its responsibility under URS Procedure Paragraphs 3 and 4 and Rule 4 of the Rules for the Uniform Rapid Suspension System (the "Rules"). |
RELIEF SOUGHT
| Complainant requests that the domain name be suspended for the life of the registration. |
STANDARD OF REVIEW
| Clear and convincing evidence. |
FINDINGS and DISCUSSION
| Findings of Fact: [OptionalComment] |
|
URS Procedure 1.2.6, requires Complainant to prove, by clear and convincing evidence, each of the following three elements to obtain an order that a domain name should be suspended.
[URS 1.2.6.1] The registered domain name(s) is/are identical or confusingly similar
to a word mark: Determined: Finding for Complainant Complainant prevailed on (i) in that the Complainant holds a valid national or regional registration and that is in current use. The record makes clear that “the Complainant holds a valid national or regional registration and that [it] is in current use,” and that the registration is identical to the second-level portion of the disputed domain name, as required by paragraph 1.2.6.1 of the URS. Accordingly, Complainant has satisfied the first element of the URS. The Examiner finds Respondent’s argument to the contrary being groundless. [URS 1.2.6.2] Registrant has no legitimate right or interest to the domain name. Determined: Finding for Complainant Complainant contends that i) Respondent has no rights or legitimate interests in the Domain Name, ii) it is not commonly known by the Domain Name, and iii) Respondent cannot assert that it is making a bona fide offering of goods or services or a legitimate non-commercial or fair use of the Domain Name as it is pointing to a holding page. Respondent argues that the Domain Name was created for people to collaboratively share their commentary, technical support, and news updates relating to the PayPal service and as protected under the First Amendment right to freedom of speech. It contends that the use of the trademark in PayPal.WiKi is justified under its nominative fair use and descriptive rather than infringing nature. The Examiner finds that the uploaded content to the website of the Domain Name is not enough to justify the Respondent’s nominative fair use of the Complainant’s mark as a part of its Domain Name. Furthermore, it appears that the content to which the Domain Name is now pointing was uploaded after Respondent had received Complaint. As such, the Examiner does not admit the legitimate interest argument of Respondent to use a trademark that belongs to a third party.
[URS 1.2.6.3] The domain name(s) was/were registered and is being used in bad faith.
Determined: Finding for Complainant The Examiner finds element (b) above is appicable. Under the URS Procedure, essentially the same considerations that make it clear that Registrant has no rights to or legitimate interests in the contested Domain Name is also pertinent to an analysis of whether the Domain Name has been registered and is being used in bad faith. A finding of bad faith in the registration and use of the Domain Name therefore follows directly from the above discussion of the absence of any rights or legitimate interests accruing to Registrant from the facts presented in the Complaint and Response filed in this proceeding. FINDING OF ABUSE or MATERIAL FALSEHOOD The Examiner may find that the Complaint was brought in an abuse of this proceeding or that it contained material falsehoods. Respondent has alleged that the Complaint was brought in an abuse of this proceeding or that it contained material falsehoods. The Examiner finds as follows:
DETERMINATION
After reviewing the parties’ submissions, the Examiner determines that the Complainant
has demonstrated all three elements of the URS by a standard of clear and convincing
evidence; the Examiner hereby Orders the following domain name(s) be SUSPENDED for
the duration of the registration:
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Ho-Hyun Nahm
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