Capital Intellect, Inc. DBA BeFrugal v. xinmeng xiang
Claim Number: FA1612001709659
Complainant is Capital Intellect, Inc. DBA BeFrugal (“Complainant”), represented by Sean D. Detweiler of MBBP, Massachusetts, USA. Respondent is xinmeng xiang (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <befrugol.com>, registered with NameSilo, 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 December 27, 2016; the Forum received payment on December 27, 2016.
On December 28, 2016, NameSilo, LLC confirmed by e-mail to the Forum that the <befrugol.com> domain name is registered with NameSilo, LLC and that Respondent is the current registrant of the name. NameSilo, LLC has verified that Respondent is bound by the NameSilo, 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 December 29, 2016, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 18, 2017 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@befrugol.com. Also on December 29, 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 February 2, 2017, 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, Capital Intellect, Inc. DBA BeFrugal, operates a website featuring coupons and promotions for the goods and services of others in commerce. Complainant has rights in the BEFRUGAL mark based upon registration with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 3,867,446, registered Oct. 26, 2010). See Compl., at Attached Ex. E. Respondent’s <befrugol.com> constitutes typosquatting and is confusingly similar, as it contains the BEFRUGAL mark in its entirety, merely changing the “a” to an “o” and adding the generic top-level domain name (“gTLD”) “.com” to form a domain name that is visually similar and a mere misspelling of the mark.
Respondent does not have rights or legitimate interests in the <befrugol.com> domain name. Respondent is not commonly known by the disputed domain name. Further, Respondent is making neither a bona fide offering of goods or services nor a legitimate noncommercial or fair use. Rather, the disputed domain name redirects to Complainant’s own website.
Respondent registered and has used <befrugol.com> in bad faith. Respondent has exhibited its bad faith by registering a typosquatted domain name for the purpose of redirecting internet traffic in an effort to confuse consumers as to the source of the services.
B. Respondent
Respondent failed to submit a Response in this proceeding. The disputed domain name was created June 14, 2016.
The Panel finds that the disputed domain name is confusingly similar to Complainant’s valid and subsisting trademark; that the Respondent has no rights or legitimate interests in or to the disputed domain name; and that the Respondent has engaged in bad faith registration, but not bad faith use, 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 Complainant’s valid and subsisting trademark, BEFRUGAL. Complainant has adequately plead it rights and interests in and to this trademark. Respondent arrives at the disputed domain name, <befrugol.com>, by merely replacing the “a” with an “o” and adding the g TLD “.com.” This is insufficient to distinguish the disputed domain name from Complainant’s trademark.
As such, the Panel finds that the disputed domain name is confusingly similar to Complainant’s trademark.
The Panel further finds that Respondent has not rights or legitimate interests in or to the disputed domain name. Respondent is not commonly known by the disputed domain name and has no permission or license to register the disputed domain name. Where a response is lacking, WHOIS information can support a finding that the respondent is not commonly known by the disputed domain name, especially where a privacy service has been engaged. Here, a privacy service was used by Respondent, but was lifted as a result of the commencement of this proceeding. See Compl., at Attached Ex. B (listing “Domain Administrator” with “See PrivacyGuardian.org” as registrant name). As a result, the Panel notes that the WHOIS information of record identifies Respondent as “xinmeng xiang.” The Panel, therefore, finds under Policy ¶ 4(c)(ii) that Respondent has not been commonly known by the disputed domain name.
Further, the Panel finds that Respondent is not using the disputed domain name for a bona fide offering of goods or services, or for a legitimate noncommercial or fair use. Instead, Complainant contends without support that <befrugol.com> resolves to Complainant’s own website. Such use does not evidence rights or legitimate interests pursuant to Policy ¶¶ 4(c)(i) or (iii). The Panel finds Respondent’s alleged redirection to Complainant’ own webpage does not amount to a bona fide offering of goods or services under Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use of the disputed domain name under Policy ¶ 4(c)(iii).
As such, the Panel finds that Respondent has no rights or legitimate interests in or to the disputed domain name.
However, the Panel finds that Respondent has not engaged in bad faith use and registration of the disputed domain name. Respondent certainly registered the disputed domain name and it is certainly confusingly similar and it certainly has no bona fide commercial interest in the disputed domain name; however, the alleged “disruptive” behavior is not currently disruptive. The disputed domain name, at the time this proceeding was brought, resolved to Complainant’s web site. There can be no commercial gain by Respondent when the very disputed domain name resolves back to Complainant’s web site. In essence, Respondent, at its own cost, is currently doing Complainant a favor and is not disruptive.
Naturally, this may not remain the case as Respondent is free to redirect the Internet traffic as it desires. However, until Respondent misdirects Internet traffic, it has not engaged in bad faith conduct contemplated by Policy ¶ 4(a)(iii) as it may have been registered in bad faith but it is not being used in bad faith.
Furthermore, Complainant makes no clear assertion that the registration of the disputed domain name occurred with knowledge of Complainant’s prior rights in and to the trademark.
As such, the Panel finds that Complainant has failed to carry its burden of proof regarding bad faith pursuant Policy ¶ 4(a)(iii).
Having not established all three elements required under the ICANN Policy, the Panel concludes that relief shall be denied.
Accordingly, it is Ordered that the <befrugol.com> domain name remain with Respondent.
Kenneth L. Port, Panelist
Dated: February 4, 2017
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