Hyland Software, Inc. v. Rolandas Jucys
Claim Number: FA1805001788122
Complainant is Hyland Software, Inc. ("Complainant"), represented by Deborah A. Wilcox of Baker & Hostetler LLP, Ohio, USA. Respondent is Rolandas Jucys ("Respondent"), Lithuania.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <sharebase.net>, registered with NameCheap, 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.
David E. Sorkin as Panelist.
Complainant submitted a Complaint to the Forum electronically on May 23, 2018; the Forum received payment on May 23, 2018.
On May 24, 2018, NameCheap, Inc. confirmed by email to the Forum that the <sharebase.net> domain name is registered with NameCheap, Inc. and that Respondent is the current registrant of the name. NameCheap, Inc. has verified that Respondent is bound by the NameCheap, 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 25, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 14, 2018 by which Respondent could file a Response to the Complaint, via email to all entities and persons listed on Respondent's registration as technical, administrative, and billing contacts, and to postmaster@sharebase.net. Also on May 25, 2018, the Written Notice of the Complaint, notifying Respondent of the email 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 19, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed David E. Sorkin 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 provides software and affiliated services for cloud-based enterprise content management under the SHAREBASE mark, which it has used for this purpose since 2016. Complainant has used SHAREBASE in various domain names including <sharebase.com> since 2002. Complainant has offices in thirteen countries and services over 19,000 organizations worldwide. Complainant owns a U.S. registration for the SHAREBASE mark and an international registration with WIPO under the Madrid Agreement and Protocol. Complainant claims that the SHAREBASE mark has become well known as a result of longstanding, continuous, and widespread use.
Respondent registered the disputed domain name <sharebase.net> in September 2017. The domain name was registered in the name of a privacy registration service. The privacy shield was removed by the registrar upon notification of this proceeding, and the Complaint was amended to designate Respondent as the registrant of the disputed domain name. The domain name is being used for a website containing information about cloud-based file hosting and uploading, sharing, and managing files. Complainant states that these services are substantially similar to the cloud-based enterprise management services that it offers under the SHAREBASE mark. Complainant asserts that Respondent is using the domain name to deceive the public by trading off of the goodwill Complainant has built up in its mark. Complainant further states that Respondent is not commonly known by the SHAREBASE mark or the disputed domain name, and that Complainant has not authorized, licensed, or endorsed Respondent's use of the mark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that the disputed domain name is identical to a mark in which Complainant has rights; that Respondent lacks rights or legitimate interests in respect of the disputed domain name; and that the disputed domain name was registered and is being used in bad faith.
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 <sharebase.net> appends the ".net" top-level domain to Complainant's registered SHAREBASE mark. For purposes of the Policy, the disputed domain name is identical to Complainant's mark. See, e.g., Elorg Co., LLC & Tetris Co., LLC v. 0x90, FA 114355 (Forum Aug. 6, 2002) (finding <tetris.net> identical to TETRIS). The Panel finds that the disputed domain name is identical to a mark in which Complainant has rights.
The disputed domain name is identical to Complainant's mark, and it is being used for in connection with what appears to be an online file-sharing service, including free and "premium" options. Complainant alleges that these services are similar to those offered by Complainant, and that Respondent is intentionally using a domain name corresponding to Complainant's mark in order to deceive the public by trading off of the goodwill associated with the mark. These allegations have not been rebutted by Respondent, and are consistent with the evidence before the Panel.
Complainant has made a prima facie case that Respondent lacks rights and legitimate interests in the domain name, and Respondent has failed to come forward with any evidence of such rights or interests. Accordingly, the Panel finds that Complainant has sustained its burden of proving that Respondent lacks rights or legitimate interests in respect of the disputed domain name.
Finally, Complainant must show that the disputed domain name was registered and has been used in bad faith. Under paragraph 4(b)(iii) of the Policy, bad faith may be shown by evidence that Respondent registered the disputed domain name "primarily for the purpose of disrupting the business of a competitor." Under paragraph 4(b)(iv), bad faith may be shown by evidence that "by using the domain name, [Respondent] intentionally attempted to attract, for commercial gain, Internet users to [Respondent's] web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of [Respondent's] web site or location or of a product or service on [Respondent's] web site or location."
Respondent is using a domain name that corresponds to Complainant's registered trademark to promote services that appear to be similar to those offered by Complainant. Furthermore, according to Complainant's plausible and uncontested allegations, Respondent is intentionally using the domain name to deceive the public by trading off of the goodwill associated with Complainant's mark. In addition, the domain name was registered in the name of a privacy registration service, a circumstance that is suggestive, although not dispositive, of bad faith. The Panel considers the facts and undisputed allegations sufficient to support an inference that Respondent registered and is using the disputed domain name in bad faith based upon paragraphs 4(b)(iii) and 4(b)(iv) of the Policy, and so finds.
Having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <sharebase.net> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: June 19, 2018
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