Klabzuba Oil & Gas, Inc. v. Desmond c Cole / icapital
Claim Number: FA1506001625753
Complainant is Klabzuba Oil & Gas, Inc. (“Complainant”), represented by Mike A. McArthur of Haynes and Boone, LLP, Texas, USA. Respondent is Desmond c Cole / icapital (“Respondent”), Georgia, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <klazuba.com>, registered with Web4Africa Inc..
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 Panelist in this proceeding.
Kenneth L. Port as Panelist.
Complainant submitted a Complaint to the Forum electronically on June 23, 2015; the Forum received payment on June 23, 2015.
On June 29, 2015, Web4Africa Inc. confirmed by e-mail to the Forum that the <klazuba.com> domain name is registered with Web4Africa Inc. and that Respondent is the current registrant of the name. Web4Africa Inc. has verified that Respondent is bound by the Web4Africa 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 June 30, 2015, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 20, 2015 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@klazuba.com. Also on June 30, 2015, 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 24, 2015, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Kenneth L. Port 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 domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant has established common law rights in the KLABZUBA mark through longstanding and continuous use of the KLABZUBA mark since its first use of the mark in 1997 in connection with its business in gas and oil industry and since 2004 in the realty industry. Respondent’s <klazuba.com> domain name is confusingly similar to the KLABZUBA mark. Respondent’s domain merely deletes the letter “b” and adds the generic top-level domain “.com,” which do not diminish the confusing similarity of the disputed domain name.
Complainant argues that Respondent has no rights or legitimate interests in the disputed domain name. First, Respondent has never been commonly known by the disputed domain name, nor has Respondent received permission from Complainant to use the KLABZUBA mark. Second, Respondent’s use of the <klazuba.com> domain name, to host a parked website and as part of a scheme to fraudulently receive money from job-seeking individuals, is not a bona fide offering of goods or services or a legitimate noncommercial or fair use.
Complainant argues that Respondent’s registration and use of the disputed domain name was in bad faith. Respondent has used the confusing similarity between the <klazuba.com> domain name and KLABZUBA mark to fraudulently obtain personal information from people who believe that Respondent is affiliated with Complainant. Respondent’s registration and use of the disputed domain name to falsely act as a recruiter of Complainant also shows that Respondent had actual knowledge of Complainant’s rights in the KLABZUBA mark at the time of registration.
B. Respondent
Respondent failed to submit a Response in this proceeding. The Respondent registered the disputed domain name on December 31, 2014
As the Respondent has failed to file a Response to this matter, the Panel shall make its determination based on the reasonable representations of the Complainant. As such, the Panel finds that the disputed domain name is confusingly similar to Complainant’s common law trademark, that the Respondent has no rights or legitimate interests in or to the disputed domain name, and that the Responded engaged in bad faith use and registration 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(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.”).
In this matter, the Complainant does not have registered trademark rights with any governmental authority; however, the Policy does not require that Complainant’s trademark be registered by a government authority or agency to establish rights in the mark under ¶ 4(a)(i). In order to establish rights in an unregistered trademark, the Complainant must show that the mark has secondary meaning.
Complainant asserts that it has common law rights in the KLABZUBA mark through continuous use of the mark and the extensive recognition the mark has received related to Complainant’s business in the oil and realty industries. Complainant prominently displays the KLABZUBA mark on its website, letterhead, business cards, and brochures that it uses in its business. Panels have found that a complainant has common law rights in a mark due to the extensive and continuous use of the mark. In addition, in Exhibit G, Complainant demonstrates unsolicited media coverage of its trademark.
As such, the Panel finds that Complainant’s various uses of the KLABZUBA mark are sufficient to establish common law rights in the mark.
Complainant alleges that Respondent’s <klazuba.com> domain name is confusingly similar to Complainant’s KLABZUBA mark. Respondent’s <klazuba.com> domain merely removes the letter “b” and adds the gTLD “.com”. Deleting a single letter from a mark does not differentiate the disputed domain from the mark it resembles. In addition, past panels have routinely held that adding a gTLD to a mark does not save an otherwise confusingly similar disputed domain name.
Accordingly, the Panel concludes that Respondent’s <klazuba.com> domain is confusingly similar to Complainant’s KLABZUBA mark under Policy ¶ 4(a)(i).
Complainant claims that Respondent has never been commonly known by the disputed domain name nor has Respondent received permission from Complainant to use the KLABZUBA mark. WHOIS information indicates that Respondent registered the <klazuba.com> domain using the name “Desmond c Cole” of the organization “icapital,” neither of which resemble the KLABZUBA mark. Based on WHOIS information and lack of authorization to use the mark, it is clear that the Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).
Complainant proceeds to contend that Respondent’s use of the <klazuba.com> domain name, to host a parked website and as part of a scheme to fraudulently receive money from job-seeking individuals, is not a bona fide offering of goods or services or a legitimate noncommercial or fair use. See Complainant’s Attached Ex. K & M. Respondent appears to be using an email associated with the disputed <klazuba.com> domain name to trick internet users into sending money and personal information to process fake visa applications so they can obtain lucrative employment working for Complainant’s company at a position that does not exist. See Complainant’s Attached Ex. K. Using a confusingly similar domain name to fraudulently receive personal information is not a bona fide offering of goods or services or a legitimate noncommercial or fair use of a disputed domain name. Respondent’s use of the disputed domain name does not constitute a bona fide offering of goods or services or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(i) and Policy ¶ 4(c)(iii), respectively.
Accordingly, the Panel finds that Respondent has no rights or legitimate interests in or to the disputed domain name.
Complainant argues that Respondent has exploited the confusing similarity between the <klazuba.com> domain name and KLABZUBA mark to fraudulently obtain personal and financial information from internet users who believe that Respondent is affiliated with Complainant. See Complainant’s Attached Ex. K. Panels have found that a respondent acted in bad faith under Policy ¶ 4(b)(iv) where a respondent took advantage of the similarity between a disputed domain name and a complainant’s mark. See AOL LLC v. iTech Ent, LLC, FA 726227 (Nat. Arb. Forum July 21, 2006) (finding that the respondent took advantage of the confusing similarity between the <theotheraol.com> and <theotheraol.net> domain names and the complainant’s AOL mark, which indicates bad faith registration and use pursuant to Policy ¶ 4(b)(iv)).
Accordingly the Panel finds that Respondent’s use of the disputed <klazuba.com> domain is indicative of bad faith use and registration under Policy ¶ 4(b)(iv).
Complainant argues that Respondent had actual and/or constructive knowledge of Complainant's rights in the KLABZUBA mark. Complainant argues that Respondent’s use of the domain name to falsely pretend to be recruiting on Complainant’s behalf also shows that Respondent had actual knowledge of Complainant’s rights in the KLABZUBA mark at the time of registration. Although panels have not generally regarded constructive notice to be sufficient for a finding of bad faith, the Panel finds that Respondent had actual knowledge of Complainant's mark and rights.
Accordingly, the Panel finds that Respondent engaged in bad faith use and registration of the disputed domain name.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be granted.
Accordingly, it is Ordered that the <klazuba.com> domain name transferred from the Respondent to the Complainant.
Kenneth L. Port, Panelist
Dated: July 31, 2015
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