CBSR Services, Inc. d/b/a/ Traemand Installation Services v. Melissa Orman
Claim Number: FA1704001728898
Complainant is CBSR Services, Inc. d/b/a/ Traemand Installation Services (“Complainant”), represented by Patrick R. Smith, Colorado, USA. Respondent is Melissa Orman (“Respondent”), Mississippi, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <traermand.com>, registered with Register.com, Inc.
The undersigned certifies that he has acted independently and impartially, and to the best of his knowledge, has no known conflict in serving as Panelist in this proceeding.
Darryl C. Wilson, as Panelist.
Complainant submitted a Complaint to the Forum electronically on April 25, 2017; the Forum received payment on May 8, 2017.
On April 26, 2017, Register.com, Inc. confirmed by e-mail to the Forum that the <traermand.com> domain name is registered with Register.com, Inc. and that Respondent is the current registrant of the name. Register.com, Inc. has verified that Respondent is bound by the Register.com, 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 May 11, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 31, 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@traermand.com. Also on May 11, 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 June 5, 2017, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Darryl C. Wilson, 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, CBSR Services, Inc. d/b/a/ Traemand Installation Services, is a kitchen installation service provider based in Englewood, Colorado, USA. In connection with this business, Complainant uses the TRAEMAND INSTALLATION SERVICES mark to promote its goods and services. Complainant has rights in the mark based upon its registration with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 3,210,703, registered Feb. 20, 2007). Respondent’s domain name, <traermand.com>, is confusingly similar as it removes the terms “installation” and “services” and adds an extra letter “r” as well as the generic top-level domain (“gTLD”) “.com.”
Respondent lacks rights and legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name. Further, Respondent failed to use <traermand.com> in connection with a bona fide offering of goods or services or for a legitimate noncommercial or fair use. Instead, <traermand.com> was used in an attempt to pass off as an agent of, and send fraudulent emails to, Complainant.
Respondent registered and is using the disputed domain name in bad faith. Respondent uses <traermand.com> in an attempt to pass off as an agent of Complainant and send fraudulent emails to disrupt Complainant’s business. Respondent had actual notice of Complainant’s rights in the marks—further evidence of Respondent’s bad faith per Policy ¶ 4(a)(iii).
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant is CBSR Services, Inc. d/b/a/ Traemand Installation Services, of Englewood, CO, USA. Complainant is the owner of the domestic registration for the TRAEMAND INSTALLATION SERVICES mark, which it has used continuously since at least as early as 2007, in connection with its kitchen and cabinet planning, assembly, and installation services.
Respondent is Melissa Orman of Abbott, MS, USA. Respondent’s registrar’s address is listed as Jacksonville, FL, USA. The Panel notes that <traermand.com> was registered on or about April 19, 2017.
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.”).
Complainant asserts rights in the mark based upon its registration with the USPTO (Reg. No. 3,210,703, registered Feb. 20, 2007). Registration of a mark with a trademark authority such as the USPTO is sufficient to establish rights in the mark per Policy ¶ 4(a)(i). See Humor Rainbow, Inc. v. James Lee, FA 1626154 (Forum Aug. 11, 2015) (stating, “There exists an overwhelming consensus amongst UDRP panels that USPTO registrations are sufficient in demonstrating a complainant’s rights under Policy ¶ 4(a)(i) and its vested interests in a mark. . . . Due to Complainant’s attached USPTO registration on the principal register at Exhibit 1, the Panel agrees that it has sufficiently demonstrated its rights per Policy ¶ 4(a)(i).”). The Panel here finds that Complainant has rights in the TRAEMAND INSTALLATION SERVICES mark.
Complainant argues <traermand.com> is confusingly similar to Complainant’s mark as it removes the terms “installation” and “services” and adds an extra letter “r” as well as the gTLD “.com.” The removal of terms from a complainant’s mark does not remove the resulting term from the realm of confusing similarity; likewise, the addition of an extra letter and gTLD to a complainant’s mark does not remove the resulting domain name from the realm of confusing similarity per Policy ¶ 4(a)(i). See The Pros Closet, Inc. v. Above.com Domain Privacy, FA 1616518 (Forum June 3, 2015) (finding confusing similarity where the <proscloset.com> domain name merely omitted the first term (“the”) from Complainant’s THE PROS CLOSET mark, eliminated spacing between words, and added the “.com” gTLD.); see also OpenTable, Inc. v. Above.com Domain Privacy, FA 1626187 (Forum Aug. 10, 2015 (“Respondent’s <oipentable.com> domain name is confusingly similar to the OPENTABLE mark under Policy ¶ 4(a)(i) because the disputed domain merely adds the letter ‘i’ . . . ”). The Panel here finds that Respondent’s domain name is confusingly similar to Complainant’s TRAEMAND INSTALLATION SERVICES mark.
Respondent makes no contentions with regards to Policy ¶ 4(a)(i).
Complainant has proven this element.
The Panel recognizes that Complainant must first make a prima facie case that 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 does have rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (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). Complainant has met this burden.
Complainant contends Respondent lacks rights and legitimate interests in <traermand.com> as Respondent is not commonly known by the disputed domain name. Where a Response is not present, WHOIS information can evince a finding that a respondent is not commonly known by a disputed domain name per Policy ¶ 4(c)(ii). See St. Lawrence Univ. v. Nextnet Tech, FA 881234 (Forum Feb. 21, 2007) (concluding a respondent has no rights or legitimate interests in a disputed domain name where there was no evidence in the record indicating that the respondent was commonly known by the disputed domain name); see also Chevron Intellectual Property LLC v. Fred Wallace, FA1506001626022 (Forum July 27, 2015) (finding that the respondent was not commonly known by the <chevron-europe.com> domain name under Policy ¶ 4(c)(ii), as the WHOIS information named “Fred Wallace” as registrant of the disputed domain name). The WHOIS information of record names the registrant as “Melissa Orman” and there are no responsive pleadings present. The Panel here finds that Respondent is not commonly known by the disputed domain name.
Next, Complainant contends Respondent failed to use <traermand.com> in connection with a bona fide offering of goods or services or for a legitimate noncommercial or fair use. Instead, Complainant argues, Respondent uses the disputed domain name to pass off as an agent of Complainant and send fraudulent emails. Use of a confusingly similar domain name to pass off as a complainant and send fraudulent emails is not indicative of rights and legitimate interests per Policy ¶¶ 4(c)(i) & (iii). See Am. Int’l Group, Inc. v. Busby, FA 156251 (Forum May 30, 2003) (finding that the respondent attempts to pass itself off as the complainant online, which is blatant unauthorized use of the complainant’s mark and is evidence that the respondent has no rights or legitimate interests in the disputed domain name); see also Abbvie, Inc. v. James Bulow, FA 1701075 (Forum Nov. 30, 2016) (“Respondent uses the at-issue domain name to pose as Complainant’s CEO by means of email addresses at the confusingly similar domain name in an attempt to determine Complainant’s ability to process a transfer. Using the domain name in this manner is neither a bona fide offering of goods and services under Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii)”). The Panel here finds that Respondent failed to use <traermand.com> in connection with a bona fide offering of goods or services or for a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) & (iii).
Respondent makes no contentions with regards to Policy ¶ 4(a)(ii).
As Respondent has not provided a response to this action, Respondent has failed to meet its burden regarding proof of any rights or legitimate interest in the disputed domain.
Complainant has proven this element.
Complainant argues Respondent registered and used <traermand.com> in bad faith as Respondent uses the domain name in an attempt to pass off as an agent of, and send fraudulent emails to, Complainant to disrupt Complainant’s business. Use of a disputed domain name to pass off as a complainant and send fraudulent emails is bad faith per Policy ¶ 4(b)(iii). See Abbvie, Inc. v. James Bulow, FA 1701075 (Forum Nov. 30, 2016) (“Respondent uses the <abbuie.com> domain name to impersonate Complainant’s CEO. Such use is undeniably disruptive to Complainant’s business and demonstrates bad faith pursuant to Policy ¶ 4(b)(iii), and/or Policy ¶ 4(b)(iv)). The Panel notes that Complainant provided evidence indicating that Respondent requested a total of $43,000 from Complainant’s business. The Panel here finds that Respondent registered and used <traermand.com> in bad faith per Policy ¶ 4(b)(iii).
Respondent makes no contentions with regards to Policy ¶ 4(a)(iii).
Complainant has proven this element.
As Complainant has established all three elements required under the ICANN Policy, the Panel concludes that Complainant’s requested relief shall be GRANTED.
Accordingly, it is Ordered that the <traermand.com> domain name be TRANSFERRED from Respondent to Complainant.
Darryl C. Wilson, Panelist
Dated: June 19, 2017
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