White Horse Capital, LLC d/b/a Birch Gold Group v Namecheap Namecheap
Claim Number: FA1501001599701
Complainant is White Horse Capital, LLC d/b/a Birch Gold Group (“Complainant”), represented by Armen R. Vartian, California, USA. Respondent is Namecheap Namecheap (“Respondent”), Panama.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <birchgoldgroup.org>, registered with Enom, Inc. (R39-Lror).
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.
David E. Sorkin as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on January 14, 2015; the National Arbitration Forum received payment on January 14, 2015.
On January 16, 2015, Enom, Inc. (R39-Lror) confirmed by email to the National Arbitration Forum that the <birchgoldgroup.org> domain name is registered with Enom, Inc. (R39-Lror) and that Respondent is the current registrant of the name. Enom, Inc. (R39-Lror) has verified that Respondent is bound by the Enom, Inc. (R39-Lror) 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 16, 2015, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 5, 2015 by which Respondent could file a Response to the Complaint, via email to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@birchgoldgroup.org. Also on January 16, 2015, the Written Notice of the Complaint, notifying Respondent of the email 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 12, 2015, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed David E. Sorkin 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 markets gold, silver and other precious metals for investment purposes, doing business as Birch Gold Group. Complainant owns the U.S. registered trademark BIRCH GOLD GROUP, and has used this mark in connection with its business since 2011.
Respondent registered the disputed domain name <birchgoldgroup.org> in November 2013, after Complainant had already secured <birchgoldgroup.com> and other domain names reflecting its mark. Complainant states that the disputed domain name is being used for a website devoted to offers of precious metals and similar goods by Regal Assets, LLC, a direct competitor of Complainant. Complainant alleges that neither Respondent nor Regal Assets is commonly known by the disputed domain name, and that Respondent is using the domain name for commercial benefit by diverting Internet users who are seeking Complainant’s website to a website that offers competing goods and services. Complainant asserts that Respondent was aware of Complainant and its mark when it registered the disputed domain name, in light of Complainant’s prior use of its mark and the nature of Respondent’s use of the domain name.
On these grounds Complainant alleges that the disputed domain name is identical to a mark in which Complainant has rights; that Respondent has no rights or legitimate interests in respect of the disputed domain name; and that the disputed domain name was registered and is being used in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that the disputed domain name is identical to a mark in which Complainant has rights; that Respondent lacks rights or legitimate interests in respect of the disputed domain name; and that the disputed domain name was registered and has been used in bad faith.
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 disputed domain name is identical to Complainant’s registered trademark, but for the omission of spaces and the addition of the “.org” top-level domain, both of which are irrelevant for purposes of paragraph 4(a)(1) of the Policy. See, e.g., Boston Medical Center Corp. v. Ryan G Foo / PPA Media Services, FA 1586917 (Nat. Arb. Forum Dec. 23, 2014) (finding <bostonmedicalcenter.org> identical to BOSTON MEDICAL CENTER). The Panel finds that the disputed domain name is identical to Complainant’s mark.
Under the Policy, the Complainant must first make a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain name, and then the burden shifts to the Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006).
The disputed domain name is identical to Complainant’s mark, and apparently its sole use has been to promote goods and services that compete directly with those offered by Complainant. Complainant has made a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name, and Respondent has failed to come forward with any evidence of such rights or interests. Accordingly, the Panel finds that Complainant has sustained its burden of proving that Respondent lacks rights or legitimate interests in respect of the disputed domain name.
Finally, Complainant must show that the disputed domain name was registered and has been used in bad faith. Under paragraph 4(b)(iv) of the Policy, bad faith may be shown by evidence that “by using the domain name, [Respondent] intentionally attempted to attract, for commercial gain, Internet users to [Respondent’s] web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of [Respondent’s] web site or location or of a product or service
on [Respondent’s] web site or location.”
Respondent’s use of the disputed domain name to promote competing goods and services falls squarely within this provision of the Policy. In the absence of evidence to the contrary, the Panel infers that the domain name was registered for this bad faith use. The Panel therefore finds that Complainant has sustained its burden of proving that the disputed domain name was registered and has been used in bad faith.
Having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <birchgoldgroup.org> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: February 16, 2015
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