Liberty Global, Inc. v. Jim Richardson
Claim Number: FA1610001696361
Complainant is Liberty Global, Inc. (“Complainant”), represented by Suzanne Hengl of Baker Botts L.L.P., New York, United States. Respondent is Jim Richardson (“Respondent”), Colorado, United States.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <lgi.com>, registered with GoDaddy.com, LLC.
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 October 1, 2016; the Forum received payment on October 1, 2016.
On October 3, 2016, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <lgi.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 October 4, 2016, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 24, 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@lgi.com. Also on October 4, 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 November 1, 2016, 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 used the Liberty Global, Inc. name and associated acronym LGI since at least as early as 2005 in connection with world-class telecommunications services. From 2005 until Respondent’s unauthorized misappropriation earlier this year, Complainant owned the domain name LGI.com and used it continuously in connection with Complainant’s business to direct consumers and other Internet users to Complainant’s website to advertise and promote its services. Complainant owns common law rights in the LGI mark by virtue of its exclusive and continuous use of the LGI.com domain name since 2005. See Compl., at Attached Annexes 1 and 2. The <lgi.com> domain name is identical to Complainant’s LGI mark, save for the affixation of the “.com” generic top-level domain (“gTLD”).
Respondent has no rights or legitimate interests in the domain name. Respondent is not commonly known by the domain name. Further, Respondent is not using the domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use. Rather, Respondent’s domain name resolves to Complainant’s website. See Compl., at Attached Annex 3.
Respondent registered and is using the domain name in bad faith. First, Respondent has offered the domain name for sale. On or around August 27, 2016, Respondent offered to sell the domain name for $42,500.00, an amount in excess of Respondent’s out-of-pocket costs to acquire the domain name. See Compl., at Attached Annex 6. Second, Respondent has hijacked Complainant’s domain name. Specifically, Complainant’s Network Solutions account was manually logged into by someone who knew the login information and did not authenticate themselves with any other information. On or around December 14, 2015, this person changed the password for the account and changed the primary contact e-mail address for the account to jimrich@juno.com. The registration was subsequently transferred to a separate Network Solutions account registered under jimrich@juno.com. Third, Respondent’s domain name resolves to Complainant’s website. See Compl., at Attached Annex 3. Fourth, given Complainant’s registration of the LGI.com domain name for over a decade, it is clear that Respondent registered the domain name with at least constructive knowledge of Complainant’s mark and rights therein. Finally, Respondent submitted false identification and contact details to the registrar in connection with the domain name. See Compl., at Attached Annexes 4 and 5.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that the disputed domain name is confusingly similar to the Complainant’s valid and subsisting trademark; that Respondent has no rights or legitimate interests in or to the disputed domain name; and that Respondent has 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(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 (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 Panel finds that the disputed domain name is confusingly similar to the Complainant’s valid and subsisting trademark LGI. In fact, the disputed domain name is identical to the Complainant’s trademark except for the addition of the
gTLD “.com.” Complainant’ has common law rights in and to the trademark LGI and has adequately pled it interests in and to the mark.
Respondent apparently arrived at the disputed domain name by hijacking Complainant’s identical domain name. <lgi.com> was apparently registered by Complainant until December of 2015, when Respondent appears to have hijacked it.
As such, the Panel finds that the disputed domain name is confusingly similar to the Complainant’s trademark.
The Panel finds that Respondent has no rights or legitimate interests in or to the disputed domain name. The WHOIS information merely lists “Jim Richardson” as registrant. Respondent has failed to provide any evidence for the Panel’s consideration.
The Panel, therefore, finds no basis in the available record to find Respondent commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii).
The Panel further finds that Respondent is not using the domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use. Rather, Respondent’s domain name resolves to Complainant’s website. See Compl., at Attached Annex 3. Panels have held that a respondent’s use of a domain name to redirect Internet users to a complainant’s website 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 Direct Line Ins. plc v. Low-cost-domain, FA 1337658 (FORUM Sept. 8, 2010) (“The Panel finds that using Complainant’s mark in a domain name over which Complainant has no control, even if the domain name redirects to Complainant’s actual site, is not consistent with the requirements of Policy ¶ 4(c)(i) or ¶ 4(c)(iii) . . .”).
Thus, the Panel finds that Respondent is not using the domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) and (iii).
Finally, the Panel finds Respondent has engaged in bad faith use and registration of the disputed domain name. Complainant claims that Respondent has offered the domain name for sale. According to Complainant, on or around August 27, 2016, Respondent offered to sell the domain name for $42,500.00, an amount in excess of Respondent’s out-of-pocket costs to acquire the domain name. See Compl., at Attached Annex 6. Attempts to sell a domain name for an amount in excess of its out-of-pocket costs associated with the acquisition of the domain name is evidence of bad faith registration and use under Policy ¶ 4(b)(i).
Accordingly, the Panel finds that Respondent registered and is using the disputed domain name in bad faith.
Complainant alleges that Respondent has hijacked Complainant’s domain name. Specifically, Complainant argues that its Network Solutions account was manually logged into by someone who knew the login information and did not authenticate themselves with any other information. According to Complainant, on or around December 14, 2015, this person changed the password for the account and changed the primary contact e-mail address for the account to jimrich@juno.com. Complainant asserts that the registration was subsequently transferred to a separate Network Solutions account registered under jimrich@juno.com. Panels have decided that a respondent’s registration of a domain name that was previously used by a complainant constitutes bad faith. See InTest Corp. v. Servicepoint, FA 95291 (FORUM Aug. 30, 2000) (“Where the domain name has been previously used by the Complainant, subsequent registration of the domain name by anyone else indicates bad faith, absent evidence to the contrary.”). In addition, the hijacking conduct described by Complainant herein constitutes bad faith use and registration of the disputed domain name.
For this reason, the Panel finds that Respondent has engaged in bad faith registration and use.
Complainant argues that Respondent’s domain name resolves to Complainant’s website. Panels have determined that a respondent’s use of a domain name to redirect Internet users to a complainant’s website is evidence of bad faith registration and use pursuant to Policy ¶ 4(a)(iii). See Verizon Trademark Servs. LLC v. Boyiko, FA 1382148 (FORUM May 12, 2011) (“The Panel finds that Respondent’s registration and use of the confusingly similar disputed domain name, even where it resolves to Complainant’s own site, is still registration and use in bad faith pursuant to Policy ¶ 4(a)(iii).”). As such, the Panel finds that Respondent registered and is using the domain name in bad faith under Policy ¶ 4(a)(iii).
Complainant contends that, given Complainant’s registration of the LGI.com domain name for over a decade, it is clear that Respondent registered the domain name with at least constructive knowledge of Complainant’s mark and rights therein. 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. The undisputed hijacking conduct that Complainant describes adequately shows that the Respondent knew of Complainant’s rights in and to the trademark LGI.
Complainant maintains that Respondent submitted false identification and contact details to the registrar in connection with the domain name. Specifically, Complainant alleges that Respondent’s address, as listed on the WHOIS page, is not recognized by the U.S. Postal Service. See Compl., at Attached Annex 4. Further, Complainant contends that Respondent’s purported phone number results in a “call failed” message and has been linked to scam complaints. See Compl., at Attached Annex 5. Panels have found evidence of bad faith registration and use where a respondent uses false and/or misleading WHOIS information when registering a domain name. See Home Dir., Inc. v. HomeDirector, D2000-0111, (WIPO Apr. 11, 2000) (finding that providing false or misleading information in connection with the registration of the domain name is evidence of bad faith).
As such, as there is no evidence to rebut these claims, the Panel finds that Respondent has 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 <lgi.com> domain name transferred from Respondent to Complainant.
Kenneth L. Port, Panelist
Dated: November 2, 2016
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