Quality Nonsense Limited v. Griffith Banks Inc. c/o Daeryk Loveman
Claim Number: FA1706001735897
Complainant is Quality Nonsense Limited (“Complainant”), represented by David Hansel of Hansel Henson Limited, United Kingdom. Respondent is Griffith Banks Inc. c/o Daeryk Loveman (“Respondent”), Canada.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <whoishostingthis.site>, registered with 1&1 Internet SE.
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 June 15, 2017; the Forum received payment on June 15, 2017.
On June 16, 2017, 1&1 Internet SE confirmed by e-mail to the Forum that the <whoishostingthis.site> domain name is registered with 1&1 Internet SE and that Respondent is the current registrant of the name. 1&1 Internet SE has verified that Respondent is bound by the 1&1 Internet SE 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 19, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 10, 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@whoishostingthis.site. Also on June 19, 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 14, 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
Quality Nonsense Limited, offers reviews and price comparisons of all types of hosting companies and services, including web hosting, cloud hosting, shared hosting, and virtual private servers. It provides a wide range of online tools, including templates and other tools for building websites, along with a search facility that enables users to search against any domain name to discover who is hosting a website at that address, the IP address, name servers and further information. Complainant has rights in the WHOISHOSTINGTHIS mark based upon registration with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 5,043,715, registered Sep. 20, 2016). Further, Complainant owns common-law rights in the mark based on the continued and extensive use of the WHOISHOSTINGTHIS mark in commerce since 2008. Complainant has generated considerable goodwill and reputation in the mark, as reflected in the numerous articles published in prominent news sources. Respondent’s <whoishostingthis.site> is identical or confusingly similar as it contains Complainant’s mark in its entirety, merely appending the generic top-level domain (“gTLD”) “.site.”
Respondent does not have rights or legitimate interests in the <whoishostingthis.site> domain name. Respondent is not commonly known by the disputed domain name and Complainant has not granted respondent permission or license to use the WHOISHOSTINGTHIS mark for any purpose. Respondent is not using the disputed domain name to make a bona fide offering of goods or services or for a legitimate non-commercial or fair use. Rather, Respondent uses the disputed domain name to promote services competitive with Complainant’s, and which are the same as those services for which the mark is registered. While Respondent does not maintain the parked webpage itself, the webpage diverts user traffic away from Complainant’s website to websites that directly compete with the Complainant’s business. Respondent is attempting to generate revenue through provided links or Pay-Per-Click advertising. Further, Complainant has attempted to contact Respondent in attempt to seek resolution with an offer to Respondent of $100. However, no response was received.
Respondent has registered and used the <whoishostingthis.site> domain name in bad faith. Respondent registered the disputed domain name with actual knowledge of Complainant’s rights in the WHOISHOSTINGTHIS mark, evinced by the inclusion of the entire WHOISHOSTINGTHIS mark in the domain name and the advertising of competing services. Respondent uses the disputed domain name to disrupt Complainant’s business by diverting Internet users from Complainant to Respondent’s parked website, which offers competitive hyperlinks for commercial gain. Further, Respondent has engaged in bad faith by attracting Internet users for commercial gain by creating confusion as to the source sponsorship, affiliation, or endorsement of the disputed domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant is Quality Nonsense Limited, of London, United Kingdom. Complainant owns rights to the WHOISHOSTINGTHIS mark based on its common law use and registration of the same, which it has continuously used since at least as early as 2008, in connection with its provision of a wide range of online tools, templates, and other tools for building websites, along with a search facility that enables users to search domain names to discover who is hosting a website.
Respondent is Griffith Banks Inc., c/o Daeryk Loveman, of Ontario, Canada. Respondent’s registrar’s address is listed as Kalrsruhe, Germany. The Panel notes that the disputed domain name was created on or about July 15, 2015.
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 claims rights in the WHOISHOSTINGTHIS mark based upon its registration with the USPTO (Reg. No. 5,043,715, registered Sep. 20, 2016). Registration with USPTO is generally sufficient to establish rights in a mark pursuant to Policy ¶ 4(a)(i). See Haas Automation, Inc. v. Jim Fraser, FA 1627211 (Forum Aug. 4, 2015) (finding that Complainant’s USPTO registrations for the HAAS mark sufficiently demonstrate its rights in the mark under Policy ¶ 4(a)(i)). However, Complainant also recognizes that Respondent registered the domain name prior to Complainant’s USPTO registration. Complainant argues that Complainant has common law rights in the mark because it first used the mark in commerce in 2008, when it began using its website at that time. Complainant further supports its claim of common law rights by providing evidence of numerous articles about the website published in prominent news sources such as the New York Times and the Daily Mail, which Complainant states is indicative that it has generated considerable goodwill and reputation in the mark. Complainant also provided Wayback evidence illustrating Complainant’s continuous use of the mark and website since 2008, Google analytics showing visitorship over the years, and social media presence data regarding the website and users. The Panel here finds that Complainant has established rights in the WHOISHOSTINGTHIS mark dating back to 2008 per Policy ¶ 4(a)(i).
Complainant also asserts that the <whoishostingthis.site> domain name is identical, or alternatively, confusingly similar to the WHOISHOSTINGTHIS mark as it contains the mark in its entirety while adding the gTLD “.site.” Past panels have found that slight differences between domain names and registered marks, such as the addition of a “gTLD” or removal of a space, are irrelevant and do not distinguish the domain name from the mark incorporated therein. See Gardline Surveys Ltd. v. Domain Fin. Ltd., FA 153545 (Forum May 27, 2003) (“The addition of a top-level domain is irrelevant when establishing whether or not a mark is identical or confusingly similar, because top-level domains are a required element of every domain name.”). The Panel here finds that the <whoishostingthis.site> domain name does not contain changes that sufficiently distinguish it from the WHOISHOSTINGTHIS mark.
Respondent raises 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 argues that Respondent has no rights or legitimate interests in the <whoishostingthis.site> domain name as Respondent is not commonly known by the disputed domain name, nor has Complainant authorized Respondent to use the WHOISHOSTINGTHIS mark in any way. Where a response is lacking, WHOIS information can support a finding that a respondent is not commonly known by the disputed domain name. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum Sept. 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark.). The WHOIS information of record identifies Respondent as “Daeryk Loveman.” Additionally, lack of evidence in the record to indicate that the respondent had been authorized to register a domain name using a complainant’s mark supports a finding that Respondent does not have rights or legitimate interests in the disputed domain name. See Navistar International Corporation v. N Rahmany, FA1505001620789 (Forum June 8, 2015) (finding that the respondent was not commonly known by the disputed domain name where the complainant had never authorized the respondent to incorporate its NAVISTAR mark in any domain name registration). Based on the WHOIS information, and Respondent’s failure to provide any evidence in this matter, the Panel here finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).
Complainant further argues Respondent’s lack of rights or legitimate interests in the disputed domain name is evinced by Respondent’s failure to use the name for any bona fide offering of goods or services or legitimate noncommercial or fair use. Complainant contends that Respondent is hosting a parked webpage that attempts to promote services competitive with Complainant’s business. Using a disputed domain name to host a parked webpage containing competing advertising links to products or services does not constitute a bona fide offering or a legitimate noncommercial or fair use. See CheapCaribbean.com, Inc. v. Moniker Privacy Services, FA1411001589962 (Forum January 1, 2015) (“The Panel finds that Respondent’s use of the <cheepcaribbean.com> name to promote links in competition with Complainant’s travel agency services does not fall within Policy ¶ 4(c)(i)’s bona fide offering of goods or services, nor does it amount to a legitimate noncommercial or fair use described in Policy ¶ 4(c)(iii).”); see also McGuireWoods LLP v. Mykhailo Loginov / Loginov Enterprises d.o.o, FA1412001594837 (Forum January 22, 2015) (“The Panel finds Respondent’s use of the disputed domain names to feature parked hyperlinks containing links in competition with Complainant’s legal services is not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), and it is not a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).”). Complainant provided a screenshot of the resolving webpage, which contains links for services such as “Managed Hosting” and “Web Hosting Companies.” Respondent allegedly is generating revenue via the Pay-Per-Click advertising. The Panel here finds that Respondent’s use of the disputed domain name does not provide a bona fide offering of goods or services, nor does it amount to a legitimate noncommercial or fair use.
Respondent raises 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 that Respondent registered and uses the disputed domain name in bad faith. Respondent disrupts Complainant’s business by diverting Internet users from Complainant to Respondent’s resolving website displaying hyperlinks for competing services. Using a disputed domain name to divert a complainant’s customers to the respondent’s competing business can demonstrate bad faith under 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).”). Respondent’s displayed web links appear to redirect users to competitor websites of the Complainant, which allegedly results in commercial gain for Respondent. Therefore, the Panel may find that Respondent is acting in bad faith under Policy ¶ 4(b)(iii).
Further, Complainant argues that Respondent attempts to attract Internet users, for commercial gain, by creating confusion as to the source sponsorship, affiliation, or endorsement of the disputed domain name. Using a confusingly similar domain name to mislead users may disclose bad faith registration and use. See Red Bull GmbH v. Gutch, D2000-0766 (WIPO Sept. 21, 2000) (finding that the respondent’s expected use of the domain name <redbull.org> would lead people to believe that the domain name was connected with the complainant, and thus is the equivalent to bad faith use). The Panel here finds that Respondent registered and uses the disputed domain name in bad faith pursuant to Policy ¶ 4(b)(iv).
Finally, Complainant argues, and provides documentary support, that Complainant filed the registration forms for the WHOISHOSTINGTHIS mark on May 21, 2015, about two months prior to when Respondent registered the disputed domain name on July 15, 2015, evidence which supports a finding of opportunistic bad faith. A finding of opportunistic bad faith can help a complainant prove bad faith registration and use on the part of a respondent. See Arizona Board of Regents, for and on behalf of Arizona State University v. Weiping Zheng, FA1504001613780 (Forum May 28, 2015) (finding that the respondent had acted in opportunistic bad faith according to Policy ¶ 4(a)(iii), when it registered the disputed domain name just one week after the complainant filed applications to register the SUB DEVIL LIFE mark, and just days after those applications became public through the USPTO’s website). The Panel here finds that Respondent registered the <whoishostingthis.site> domain name in bad faith by taking advantage of the timing of Complainant’s filing its trademark application.
Respondent raises no contentions with regards to Policy ¶ 4(a)(iii).
Complainant has proven this element.
DECISION
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 <whoishostingthis.site> domain name be TRANSFERRED from Respondent to Complainant.
Darryl C. Wilson, Panelist
Dated: July 28, 2017
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