PuroSystems, LLC v. Maureen Koertgen
Claim Number: FA1601001655004
Complainant is PuroSystems, LLC (“Complainant”), Florida, United States. Respondent is Maureen Koertgen (“Respondent”), Illinois, United States
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is/are <purocleanconstruction.com>, registered with GoDaddy.com, LLC.
The undersigned certifies he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.
Houston Putnam Lowry, Chartered Arbitrator, as Panelist.
Complainant submitted a Complaint to the Forum electronically on January 4, 2016; the Forum received payment on January 4, 2016.
On January 5, 2016, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <purocleanconstruction.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 January 6, 2016, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 26, 2016 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@purocleanconstruction.com. Also on January 6, 2016, 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 January 29, 2016, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Houston Putnam Lowry, Chartered Arbitrator, 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 the domain name be cancelled.
A. Complainant
The PuroClean® family of marks which are used in connection with property damage restoration and disaster recovery services, namely, cleaning and restoring of commercial, industrial and residential buildings and personal property contained therein to remove smoke, odor, water, chemical contamination, mold and other bio-hazardous substances and to dehumidify and dry building interiors and contents; emergency response in the field of real property damage, namely, emergency construction and renovation of damaged real property to contain and mitigate damage; commercial and residential building cleaning services. A list of registrations is annexed to the Complaint.
FACTUAL AND LEGAL GROUNDS
This Complaint is based on the following factual and legal grounds: UDRP Rule 3(b)(ix).
[a.] The domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights. The domain name includes the proprietary name “PuroClean” followed by “Construction,” which is a service offered by PuroClean® franchisees. The domain name implies that it is associated with a PuroClean® office. UDRP Rule 3(b)(ix)(1); UDRP Policy ¶4(a)(i).
[b.] The Respondent has no license to use the PuroClean® name or marks. The PuroClean® brand is licensed to restoration companies through franchise agreements. The Respondent is not a PuroClean® franchisee, but uses the offending domain to direct customers to a competing restoration business. UDRP Rule 3(b)(ix)(2); UDRP Policy ¶4(a)(ii).
[c.] Respondent has 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. <purocleanconstruction.com> includes the proprietary name “PuroClean” followed by “Construction.” The domain name implies that it is associated with a PuroClean® office. However, the domain name directs would be customers to a restoration business that is not part of the PuroClean® franchise network. There is a substantial likelihood that Internet users seeking restoration services from a PuroClean® office will be directed by the domain to the Respondent’s competing business instead.
B. Respondent
Respondent failed to submit a Response in this proceeding.
(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.
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(f), 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.”).
Complainant uses the PUROCLEAN mark in connection with property damage restoration and disaster recovery services, namely cleaning and restoring of commercial, industrial, and residential buildings and personal property contained therein to remove smoke, odor, water, chemical contamination, mold, and other bio-hazardous substances and to dehumidify and dry building interiors and contents. Complainant registered the PUROCLEAN mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 2,977,204, registered November 10, 2011). Such registrations with governmental authorities adequately demonstrate a complainant’s rights to a mark for the purposes of Policy ¶ 4(a)(i). See Metro. Life Ins. Co. v. Bonds, FA 873143 (Nat. Arb. Forum Feb. 16, 2007) (finding that a USPTO trademark registration adequately demonstrates a complainant’s rights in a mark under Policy ¶ 4(a)(i)). Complainant has demonstrated its rights in its mark pursuant to Policy ¶ 4(a)(i).
Complainant claims the <purocleanconstruction.com> domain is confusingly similar to Complainant’s mark. It incorporates Complainant’s mark in its entirety and adds the generic term “construction” and the gTLD “.com.” The addition of generic terms to a complainant’s mark does not serve to adequately distinguish a disputed domain name from a complainant’s mark under Policy ¶ 4(a)(i). See Am. Express Co. v. MustNeed.com, FA 257901 (Nat. Arb. Forum June 7, 2004) (finding the respondent’s <amextravel.com> domain name confusingly similar to Complainant’s AMEX mark because the “mere addition of a generic or descriptive word to a registered mark does not negate” a finding of confusing similarity under Policy ¶ 4(a)(i)). Adding a TLD (whether a gTLD or a ccTLD) to a domain name does not adequately distinguish the domain name from the mark under Policy ¶ 4(a)(i) because every domain name must have a TLD. See Countrywide Fin. Corp. v. Johnson & Sons Sys., FA 1073019 (Nat. Arb. Forum Oct. 24, 2007) (holding that the addition of the generic top-level domain (“gTLD”) “.com” was irrelevant). Respondent’s disputed domain name is confusingly similar to Complainant’s mark under Policy ¶ 4(a)(i).
The Panel finds Policy ¶ 4(a)(i) satisfied.
Complainant must first make a prima facie case Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii). Then the burden shifts to Respondent to show it has rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name); see also AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006) (“Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.”).
Complainant claims Respondent has no rights or legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name or any variant of Complainant’s mark. Respondent has no license or authorization to use Complainant’s mark. The WHOIS information lists “Maureen Koertgen” as registrant and Respondent failed to provide any evidence for the Panel’s consideration. There is no obvious relationship between Respondent’s name and the disputed domain name. There is no basis in the available record to find Respondent commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii). See Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003) (stating “nothing in [the respondent’s] WHOIS information implies that [the respondent] is ‘commonly known by’ the disputed domain name” as one factor in determining that Policy ¶ 4(c)(ii) does not apply).
Complainant claims Respondent is not using the disputed domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use. Respondent uses its disputed domain name to provide goods and services that directly compete with Complainant’s business. While Complainant has not submitted any evidence to support this contention, Respondent does not dispute it. A respondent’s use of a disputed domain name to sell products and services that directly compete with the complainant’s business does not constitute 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). See Alcon, Inc. v. ARanked, FA 1306493 (Nat. Arb. Forum Mar. 18, 2010) (“The Panel finds that capitalizing on the well-known marks of Complainant by attracting internet users to its disputed domain names where Respondent sells competing products of Complainant is not a bona fide offering of goods or services pursuant to Policy ¶4(c)(i) or a noncommercial or fair use pursuant to Policy ¶4(c)(iii).”). Respondent is not using the disputed domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶4(c)(i) and Policy ¶ 4(c)(iii).
The Panel finds Policy ¶ 4(a)(ii) satisfied.
Complainant claims Respondent’s disputed domain name disrupts and competes with Complainant’s business. Using a domain to sell products and services that directly compete with a complainant’s business is adequate evidence of bad faith registration and use of a domain name under Policy ¶ 4(b)(iii). See Classic Metal Roofs, LLC v. Interlock Indus., Ltd., FA 724554 (Nat. Arb. Forum Aug. 1, 2006) (finding that the respondent registered and used the <classicmetalroofing.com> domain name in bad faith pursuant to Policy ¶ 4(b)(iii) by redirecting Internet users to the respondent’s competing website). Respondent has registered and is using the disputed domain in bad faith pursuant to Policy ¶ 4(b)(iii).
Complainant claims Respondent uses the disputed domain name to profit from Internet users’ confusion. Respondent’s use of the disputed domain to operate a competing business creates a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website. A respondent’s use of a domain to operate a business targeting a complainant’s market by using its mark constitutes bad faith registration and use under Policy ¶ 4(b)(iv). See Am. Online, Inc. v. Fu, D2000-1374 (WIPO Dec. 11, 2000) (finding that the respondent violated Policy ¶ 4(b)(iv) by displaying the complainant’s mark on its website and offering identical services as those offered by the complainant). Respondent has engaged in bad faith registration and use under Policy ¶ 4(b)(iv).
The Panel finds Policy ¶ 4(a)(iii) satisfied.
Having established all three elements required under the ICANN Policy, the Panel concludes relief shall be GRANTED.
Accordingly, it is Ordered that the <purocleanconstruction.com> domain name be CANCELLED.
Houston Putnam Lowry, Chartered Arbitrator, Panelist
Dated: Monday, February 15, 2016
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