BBC Systems, Inc. v. Acid Opal
Claim Number: FA1712001763461
Complainant is BBC Systems, Inc. (“Complainant”), represented by Amber N. Davis of Beusse Wolter Sanks Mora & Maire, P.A., Florida, USA. Respondent is Acid Opal (“Respondent”), Indonesia.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <jvzoomarket.com>, registered with Hostinger, UAB.
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.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on December 18, 2017; the Forum received payment on December 18, 2017.
On Dec 20, 2017, Hostinger, UAB confirmed by e-mail to the Forum that the <jvzoomarket.com> domain name is registered with Hostinger, UAB and that Respondent is the current registrant of the name. Hostinger, UAB has verified that Respondent is bound by the Hostinger, UAB 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 December 20, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 9, 2018 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@jvzoomarket.com. Also on December 20, 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 January 11, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Richard Hill 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 states that it uses the JVZOO mark to provide a searchable website featuring the goods and services of other vendors. Complainant has rights in the JVZOO mark based upon its registration of the mark in the United States in 2012.
Complainant alleges that the disputed domain name is confusingly similar to its JVZOO mark, as the domain name contains the mark in its entirety, and differs through the addition of the term “market” and the “.com” generic top-level domain (“gTLD”). Complainant cites UDRP precedents to support its position.
According to Complainant, Respondent has no rights or legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name, nor has Complainant authorized or licensed Respondent to use the JVZOO mark in any manner. Respondent’s use of the disputed domain name does not amount to a bona fide offering of goods or services or a legitimate noncommercial or fair use. Rather, Respondent uses the domain name to host a platform that sells products identical to those offered on Complainant’s platform in order to compete with Complainant’s business. Complainant cites UDRP precedents to support its position.
Further, says Complainant, Respondent registered and is using the disputed domain name in bad faith. Respondent registered the domain name for the purpose of disrupting Complainant’s business and compete for commercial gain. Further, Respondent registered as a user of Complainant’s JVZOO platform five days prior to registering the disputed domain name, indicating he had actual knowledge of Complainant and its rights in the JVZOO mark. Complainant cites UDRP precedents to support its position.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns the mark JVZOO and uses it to provide a searchable website featuring the goods and services of other vendors.
Complainant’s rights in its mark date back to 2012.
The disputed domain name was registered in 2017.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
The disputed domain resolves to a competing website. Further, Respondent had actual knowledge of Complainant’s mark when he registered 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 disputed domain name is confusingly similar to the JVZOO mark, as the name contains the mark in its entirety, and differs through the addition of the term “market” and the “.com” gTLD. Such changes are not sufficient to distinguish a domain name from an incorporated mark in a Policy ¶ 4(a)(i) analysis. See Microsoft Corporation v. Thong Tran Thanh, FA 1653187 (Forum Jan. 21, 2016) (determining that confusing similarity exists where [a disputed domain name] contains Complainant’s entire mark and differs only by the addition of a generic or descriptive phrase and top-level domain, the differences between the domain name and its contained trademark are insufficient to differentiate one from the other for the purposes of the Policy). The Panel therefore finds that the <jvzoomarket.com> domain name is confusingly similar to the JVZOO mark per Policy ¶ 4(a)(i).
Complainant has not authorized Respondent to use the JVZOO mark in any way. Respondent is not commonly known by the disputed domain name: where a response is lacking, WHOIS information can support a finding that the respondent is not commonly known by a disputed domain name. See Philip Morris USA Inc. v. Usama Ramzan, FA 1737750 (Forum July 26, 2017) (“We begin by noting that Complainant contends, and Respondent does not deny, that Respondent has not been commonly known by the <marlborocoupon.us> domain name, and that Complainant has not authorized Respondent to use the MARLBORO mark in any way. Moreover, the pertinent WHOIS information identifies the registrant of the domain name only as “Usama Ramzan,” which does not resemble the domain name. On this record, we conclude that Respondent has not been commonly known by the challenged domain name so as to have acquired rights to or legitimate interests in it within the purview of Policy ¶ 4(c)(ii).”). The WHOIS information of record identifies Respondent as “Acid Opal,” and no information on the record indicates Respondent has been authorized to register the domain name incorporating Complainant’s mark. The Panel therefore finds under Policy ¶ 4(c)(ii) that Respondent has not been commonly known by the disputed domain name.
Respondent’s lack of rights or legitimate interests in the disputed domain name is demonstrated by its failure to use the name to make a bona fide offering of goods or services or for a legitimate noncommercial or fair use. Instead the domain name resolves to a competing website. Specifically, Respondent uses the domain name to sell products identical to those sold via Complainant’s legitimate JVZOO platform. The resolving website gives the false impression that it is affiliated with, and authorized by, Complainant. Such use is not indicative of rights or legitimate interests per Policy ¶¶ 4(c)(i) or (iii). See General Motors LLC v. MIKE LEE, FA 1659965 (Forum Mar. 10, 2016) (finding that “use of a domain to sell products and/or services that compete directly with a complainant’s business does not constitute a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).”). The Panel therefore finds that Respondent does not have rights or legitimate interests in the disputed domain name.
Respondent (who did not reply to Complainant’s contentions) has not presented any plausible explanation for his use of Complainant’s mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain name.
Indeed, as already noted, Respondent uses the disputed domain name to disrupt Complainant’s business by creating confusion and attracting Internet users for commercial gain. Use of a domain name to compete with a complainant can demonstrate a respondent’s bad faith per Policy ¶¶ 4(b)(iii) and (iv). See DatingDirect.com Ltd. v. Aston, FA 593977 (Forum Dec. 28, 2005) (“Respondent is appropriating Complainant’s mark to divert Complainant’s customers to Respondent’s competing business. The Panel finds this diversion is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iii).”); 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).”). The Panel therefore finds that Respondent has registered and used the domain name in bad faith per Policy ¶¶ 4(b)(iii) and (iv).
Further, Respondent had actual knowledge of Complainant's rights in the mark prior to registering the disputed domain name: Respondent registered as a JVZOO user five days before he registered the disputed domain name. Such actual knowledge is adequate evidence of bad faith under Policy ¶ 4(a)(iii). See Univision Comm'cns Inc. v. Norte, FA 1000079 (ForumAug. 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). Accordingly, the Panel finds bad faith registration and use on this ground also.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <jvzoomarket.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: January 11, 2018
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