Nu Mark LLC v. samuel casternovia
Claim Number: FA1703001719511
Complainant is Nu Mark LLC (“Complainant”), represented by Thomas E. Zutic of DLA Piper LLP (US), District of Columbia, USA. Respondent is samuel casternovia (“Respondent”), New Jersey, USA.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain name at issue are <apexhookah.com> and <apexsmokeshop.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 March 1, 2017; the Forum received payment on March 1, 2017.
On March 1, 2017, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <apexhookah.com>, ,<apexsmokeshop.com> domain names are registered with GoDaddy.com, LLC and that Respondent is the current registrant of the names. 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 March 1, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 21, 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@apexhookah.com, postmaster@apexsmokeshop.com. Also on March 1, 2017, 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 March 30, 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 uses the APEX mark in connection with its business as a leading developer of innovative tobacco products, including electronic vapor products, as well as cartomizers, batteries, battery charges, and car power adaptors for e-vapor products. Complainant owns the APEX mark through its numerous trademark registrations with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 5082503, registered November 15, 2016, filed May 28, 2013). The disputed domain names are confusingly similar to Complainant’s APEX mark, as Respondent simply adds descriptive terms and a generic top-level domain (“gTLD”) to the mark.
Respondent lacks rights or legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain names, as evidenced by the available WHOIS information and other information in the records. Further, Complainant has not licensed or otherwise authorized Respondent to use the APEX mark in anyway. Additionally, Respondent has failed to provide a bona fide offering of goods or services, or a legitimate noncommercial or fair use of the disputed domain names. Rather, Respondent uses the disputed domain names for nothing more than a landing page for “Go Daddy” and offers unrelated hyperlinks.
Respondent has registered and is using the disputed domain names in bad faith. Respondent uses the disputed domain names for a “Go Daddy” landing page that hosts unrelated hyperlinks. Such behavior demonstrates bad faith under Policy ¶ 4(b)(iv).
B. Respondent
Respondent failed to submit a Response in this proceeding. The <apexsmokeshop.com> domain name was registered on June 11, 2015 and the <apexhookah.com> domain name was also registered on June 11, 2015.
C. Additional Submissions
Respondent sent an email communication to the Forum. This non-responsive Response denied liability and offered to relinquish the domain names.
As the Respondent has conceded to the transfer of the disputed domain names, the Panel finds that they should be immediately transferred.
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 Respondent has sent a non-responsive Response to the Forum. In this email, the Respondent concedes to the transfer of the mark. As such, the Panel orders the immediate transfer of the disputed domain names and will dispense with its three-element analysis.
Since the Respondent has conceded to the transfer of the disputed domain names, the Panel concludes that relief shall be granted.
Accordingly, it is Ordered that the <apexhookah.com> and <apexsmokeshop.com> domain names be transferred from Respondent to Complainant.
Kenneth L. Port, Panelist
Dated: March 31, 2017
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