Glen Raven, Inc. v Michael Gotowala / Preferred Properties Landscaping, Inc.
Claim Number: FA1706001737420
Complainant is Glen Raven, Inc. (“Complainant”), represented by Christopher Kelly of Wiley Rein LLP, District of Columbia. Respondent is Michael Gotowala / Preferred Properties Landscaping, Inc. (“Respondent”), Connecticut.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <outdoorsunbrellafabric.com>, registered with GoDaddy.com, LLC.
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.
The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Complainant submitted a Complaint to the Forum electronically on June 26, 2017; the Forum received payment on June 28, 2017.
On June 27, 2017, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <outdoorsunbrellafabric.com> 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 28, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 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@outdoorsunbrellafabric.com. Also on June 28, 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 19, 2017, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed the Honorable Charles K. McCotter, Jr. (Ret.) 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 is a leading manufacturer of fabrics that are used to produce a wide array of residential and commercial shade products, such as awnings, sunscreens, sun sails, cabanas, tents and garden, patio, and market umbrellas. Complainant registered the SUNBRELLA mark with the United States Patent and Trademark Office (“USPTO”) (e.g. Reg. No. 709,110, registered Dec. 27, 1960). Respondent’s <outdoorsunbrellafabric.com> domain name is identical or confusingly similar to Complainant’s mark as it contains the SUNBRELLA mark in its entirety while adding the descriptive terms “outdoor” and “fabric,” along with the generic top-level domain (“gTLD”) “.com.”
Respondent has no rights or legitimate interests in the <outdoorsunbrellafabric.com> domain name. Respondent is not commonly known by the disputed domain name, nor has Complainant authorized or otherwise permitted Respondent to use the mark. Respondent also does not use the disputed domain name in connection with a bona fide offering of goods or services or legitimate noncommercial or fair use.
Respondent registered and uses the <outdoorsunbrellafabric.com> domain name in bad faith as the domain name currently resolves to a GoDaddy parked webpage. Further, Respondent had at least constructive knowledge, if not actual knowledge, of Complainant’s rights in the SUNBRELLA mark given the mark’s popularity and Respondent’s decision to register the domain name using the descriptive terms “outdoor” and “fabric.”
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant, Glen Raven, Inc., is a manufacturer of fabrics that are used to produce a wide array of residential and commercial shade products, such as awnings, sunscreens, sun sails, cabanas, tents and garden, patio, and market umbrellas. Complainant has rights in the SUNBRELLA mark through registration with the USPTO (e.g. Reg. No. 709,110, registered Dec. 27, 1960). Respondent’s <outdoorsunbrellafabric.com> domain name is confusingly similar to Complainant’s mark.
Respondent, Michael Gotowala / Preferred Properties Landscaping, Inc., registered the <outdoorsunbrellafabric.com> domain name on November 8, 2016. The domain name currently resolves to a GoDaddy parked webpage.
Respondent has no rights or legitimate interests in the <outdoorsunbrellafabric.com> 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.”).
Complainant has rights in the SUNBRELLA mark through registration with the USPTO. Registration of a mark with the USPTO sufficiently confers a complainant’s rights in a mark for the purposes of 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. . . “. ).
Respondent’s <outdoorsunbrellafabric.com> domain name is confusingly similar to Complainant’s mark as it contains the SUNBRELLA mark in its entirety while adding the descriptive terms “outdoor” and “fabric,” along with the gTLD “.com.”
Respondent has no rights or legitimate interests in the <outdoorsunbrellafabric.com> domain name. Complainant has not authorized Respondent to use the SUNBTELLA mark. The WHOIS information identifies “Michael Gotowala / Preferred Preferred Properties Landscaping, Inc.” as the registrant of the domain name. Therefore, Respondent is not commonly known by the domain name. See Braun Corp. v. Loney, FA 699652 (Forum July 7, 2006) (concluding that the respondent was not commonly known by the disputed domain names where the WHOIS information, as well as all other information in the record, gave no indication that the respondent was commonly known by the domain names, and the complainant had not authorized the respondent to register a domain name containing its registered mark); see also 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).
Respondent’s use of the <outdoorsunbrellafabric.com> domain name to host a parked webpage does not qualify as a bona fide offering of goods or services or a legitimate noncommercial or fair use. See Herbalife Int’l, Inc. v. Farmana, D2005-0765 (WIPO Oct. 3, 2005) (parking of the domain name for many years constitutes no more than a passive use or de facto activity, which activity can reinforce a finding of no legitimate interest).
Respondent’s <outdoorsunbrellafabric.com> domain name currently resolves to a parked webpage. Hosting a parked webpage with a disputed domain name shows bad faith registration and use under Policy ¶ 4(b)(iv). See Express Scripts, Inc. v. Windgather Invs. Ltd., D2007-0267 (WIPO Apr. 26, 2007) (finding that it makes no difference that a respondent contends that the advertisements in this case were “generated by the parking company,” the respondent still registered and used the disputed domain name in bad faith).
Respondent had actual knowledge of Complainant’s SUNBRELLA mark when registering the <outdoorsunbrellafabric.com> name. Therefore, Respondent registered and uses the domain name in bad faith under Policy ¶ 4(a)(iii). See Univision Comm'cns Inc. v. Norte, FA 1000079 (Forum Aug. 16, 2007) (rejecting the respondent's contention that it did not register the disputed domain name in bad faith since the panel found that the respondent had knowledge of the complainant's rights in the UNIVISION mark when registering the disputed domain name).
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <outdoorsunbrellafabric.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: July 24, 2017
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