Okakorp, Inc. v. Archardsicard Tapia
Claim Number: FA1706001735334
Complainant is Okakorp, Inc. (“Complainant”), represented by Jason Marin of Law Office of Jason Marin, New York, USA. Respondent is Archardsicard Tapia (“Respondent”), India.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <otakon2017.org>, 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 June 9, 2017; the Forum received payment on June 9, 2017.
On June 12, 2017, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <otakon2017.org> 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 June 14, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 5, 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@otakon2017.org. Also on June 14, 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 July 10, 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, Otakorp, Inc., is an organizer and promoter of educational conventions about Japanese culture with headquarters based in Pennsylvania. In connection with this business, Complainant uses the OTAKON mark to promote its goods and services. Complainant has rights in the OTAKON mark based upon registration with the United States Patent Office (“USPTO”) (Reg. No. 2,839,102, registered Oct. 12, 2004). See Compl., at Attached Annex 2 (Complainant’s USPTO registration for the OTAKON mark). Respondent’s domain name, <otakon2017.org>, is confusingly similar as it wholly appropriates Complainant’s mark and appends the descriptive term “2017” and 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 and Complainant has not authorized Respondent to register a domain name reflecting the OTAKON mark. Respondent failed to use <otakon2017.org> in connection with a bona fide offering of goods and services or for a legitimate noncommercial or fair use; instead, <otakon2017.org> resolves to a website offering goods and services in competition with Complainant’s business. See Compl., at Attached Annex 7 (Screenshots of the resolving website for <otakon2017.org>).
Respondent registered and uses <otakon2017.org> in bad faith. Respondent disrupts Complainant’s business. Respondent intentionally attracts, for commercial gain, Internet users otherwise seeking Complainant or Complainant’s business.
B. Respondent
Respondent failed to submit a Response in this proceeding. The disputed domain name, <otakon2017.org>, was registered March 29, 2017.
The Panel finds that the disputed domain name is confusingly similar to the Complainant’s registered trademark; that the Respondent has not rights or legitimate interests in or to the disputed domain name; and that the 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, <otakon2017.org>, is confusingly similar to the Complainant’s valid and subsisting trademark, OTAKON. The Complainant has adequately pled its rights and interests to that mark. Respondent arrives at the disputed domain name by merely appending “2017” and the g TLD “.org” to the trademark itself. This is insufficient to distinguish the disputed domain name from the Complainant’s trademark.
As such, the Panel finds that the disputed domain name is confusingly similar to the Complainant’s trademark.
The Panel further finds that Respondent has no rights or legitimate interests in or to the dispute domain name. Respondent has no license or permission to register the disputed domain name. There is no evidence in the record to indicate that Respondent is commonly known by the disputed domain name.
In addition, Respondent failed to use the disputed domain name in connection with a bona fide offering of goods and services or for a legitimate noncommercial or fair use. Rather, the disputed domain name resolves to a website offering goods and services in competition with Complainant’s business. See Compl., at Attached Annex 7. Use of a confusingly similar domain name to divert Internet users seeking a complainant’s website to respondent’s website for respondent’s gain does not evince a finding of rights and legitimate interests per Policy ¶¶ 4(c)(i) & (iii). Here, Respondent uses the disputed domain name to offer hotel rooms and lodging for Complainant’s event in competition with Complainant and Complainant’s lodging agents.
As such, the Panel finds that Respondent lacks rights and legitimate interests in the disputed domain name.
The Panel also finds that Respondent has engaged in bad faith use and registration of the disputed domain name. Respondent disrupts Complainant’s business by using the disputed domain name to link to third-party competitors. Use of a domain name to advertise links to third-party competitors is indicative of bad faith registration and use per Policy ¶ 4(b)(iii). See Health Republic Insurance Company v. Above.com Legal, FA1506001622088 (FORUM July 10, 2015) (“The use of a domain name’s resolving website to host links to competitors of a complainant shows intent to disrupt that complainant’s business, thereby showing bad faith in use and registration under Policy ¶ 4(b)(iii).”). Here, the third-party competitors offer similar hotel and lodging services as Complainant and Complainant’s agents. As such, the Panel finds Respondent has engaged in bad faith use and registration of the disputed domain name.
Last, Complainant argues Respondent intentionally attracts, for commercial gain, Internet users otherwise seeking Complainant or Complainant’s business. Use of a confusingly similar domain name to create a likelihood of confusion with the complainant’s mark for respondent’s commercial gain evinces a finding of bad faith registration and use per Policy ¶ 4(b)(iv). See Perot Sys. Corp. v. Perot.net, FA 95312 (FORUM Aug. 29, 2000) (finding bad faith where the domain name in question is obviously connected with the complainant’s well-known marks, thus creating a likelihood of confusion strictly for commercial gain); see also Xylem Inc. and Xylem IP Holdings LLC v. YinSi BaoHu YiKaiQi, FA1504001612750 (FORUM May 13, 2015) (“The Panel agrees that Respondent’s use of the website to display products similar to Complainant’s, imputes intent to attract Internet users for commercial gain, and finds bad faith per Policy ¶ 4(b)(iv).”). Here, Respondent appropriates Complainant’s trademark, slogan, and customer base to deceive Internet users into registering for lodging with Respondent’s services. As such, the Panel finds Respondent registered and uses <otakon2017.org> in bad faith.
Finally, given the distinctive nature of Complainant’s mark, Respondents assuming the mark in its entirety, and the totality of the circumstances, the Panel finds that Respondent had actual knowledge of Complainant’s prior rights and interests in and to the trademark OTAKON. As such, the Panel finds that the Respondent 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 <otakon2017.org> domain name transferred from Respondent to Complainant.
Kenneth L. Port, Panelist
Dated: July 11, 2017
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