Margaritaville Enterprises, LLC v. John Russell
Claim Number: FA1806001791975
Complainant is Margaritaville Enterprises, LLC (“Complainant”), represented by Joel R. Feldman of Greenberg Traurig, LLP, Georgia, USA. Respondent is John Russell (“Respondent”), Nevada, USA.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <margaritavillecostaricaresort.com>, <margaritavillecr.com>, <margaritavilleflamingo.com>, <margaritavilleflamingobeachresort.com>, <margaritavilleresortcostarica.com>, <margaritavilleresortflamingo.com>, <margaritavilleresortplayaflamingo.com>, and <costaricamargaritaville.com>, 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 15, 2018; the Forum received payment on June 15, 2018.
On Jun 18, 2018, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <margaritavillecostaricaresort.com>, <margaritavillecr.com>, <margaritavilleflamingo.com>, <margaritavilleflamingobeachresort.com>, <margaritavilleresortcostarica.com>, <margaritavilleresortflamingo.com>, <margaritavilleresortplayaflamingo.com>, and <costaricamargaritaville.com> domain names are registered with GoDaddy.com, LLC and that Respondent is the current registrant of the names. 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 21, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 11, 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@margaritavillecostaricaresort.com, postmaster@margaritavillecr.com, postmaster@margaritavilleflamingo.com, postmaster@margaritavilleflamingobeachresort.com, postmaster@margaritavilleresortcostarica.com, postmaster@margaritavilleresortflamingo.com, postmaster@margaritavilleresortplayaflamingo.com, and postmaster@costaricamargaritaville.com. Also on June 21, 2018, 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 16, 2018, 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 names be transferred from Respondent to Complainant.
A. Complainant
Complainant has used the MARGARITAVILLE mark extensively for a wide variety of goods and services, including real estate services, hotel services, entertainment services, fan club services, clothing, restaurant services, bar services, and retail store services. Complainant has rights in the MARGARITAVILLE mark through its registration of the mark with the United States Patent and Trademark Office (“USPTO”) (e.g. Reg. No. 1,642,132, registered Apr. 23, 1991). See Compl. Annex 9. Respondent’s disputed domain names are identical or confusingly similar to Complainant’s mark as they each contain Complainant’s mark and add a generic/descriptive term and the “.com” generic top-level domain (“gTLD”).
Respondent has no rights or legitimate interests in the disputed domain names. Respondent is not commonly known by the domain names, as the WHOIS information lists the registrant as “John Russell.” See Compl. Annex 16. Complainant also has not authorized, licensed, or otherwise permitted Respondent to use its mark for any purpose. Further, Respondent does not use the domain names in connection with a bona fide offering of goods or services or legitimate noncommercial or fair use. Rather, Respondent currently uses the domain names to resolve to parked webpages featuring sponsored pay-per-click links. See Compl. Annex 17.
Respondent registered and uses the disputed domain names in bad faith. Respondent uses the domain names to resolve to parked webpages featuring sponsored links. See Compl. Annex 17. Further, Respondent failed to respond to either of Complainant’s letters it sent to Respondent in efforts to resolve this dispute outside of formal proceedings. See Compl. Annexes 18-19. Finally, Respondent clearly had knowledge of Complainant’s rights in the MARGARITAVILLE mark prior to registering the domain names given the use of descriptive terms in connection with Complainant’s mark.
B. Respondent
Respondent failed to submit a Response in this proceeding. Respondent registered the disputed domain names on the July 2, 2017.
The Panel finds that the disputed domain names are confusingly similar to Complainant’s trademark; that Respondent has no rights or legitimate interests in or any of the disputed domain names; and that Respondent has engaged in bad faith use and registration of the disputed domain names.
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 names are confusingly similar to Complainant’s trademark. Complainant has adequately plead its rights and interests in to that trademark. Respondent arrives at the various disputed domain names by merely adding generic words and the g TLD “.com” to Complainant’s trademark. This is inadequate to distinguish the disputed domain names from the Complainant’s trademark.
As such, the Panel finds that the disputed domain names are confusingly similar to Complainant’s trademark.
Furthermore, Respondent has no rights or legitimate interests in or to the disputed domain names. Respondent has no rights, permission or license to register the disputed domain names. Respondent is not commonly known by the disputed domain name.
Respondent does not use the disputed domain names in connection with a bona fide offering of goods or services or legitimate noncommercial or fair use. Rather, Respondent currently uses the domain names to resolve to parked webpages featuring sponsored pay-per-click links. See Compl. Annex 17.
Finally, Respondent has engaged in bad faith use and registration of the disputed domain names. Respondent appears to use the disputed domain names to resolve to parked webpages featuring sponsored links. See Compl. Annex 17. Further, Respondent failed to respond to either of Complainant’s letters it sent to Respondent in efforts to resolve this dispute outside of formal proceedings. See Compl. Annexes 18-19. Finally, Respondent clearly had knowledge of Complainant’s rights in the MARGARITAVILLE mark prior to registering the domain names given the use of descriptive terms in connection with Complainant’s mark.
As such, the Panel finds that Respondent engaged in bad faith use and registration of the disputed domain names.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be granted.
Accordingly, it is Ordered that the <margaritavillecostaricaresort.com>, <margaritavillecr.com>, <margaritavilleflamingo.com>, <margaritavilleflamingobeachresort.com>, <margaritavilleresortcostarica.com>, <margaritavilleresortflamingo.com>, <margaritavilleresortplayaflamingo.com>, and <costaricamargaritaville.com> domain names be transferred from Respondent to Complainant.
Kenneth L. Port, Panelist
Dated: July 18, 2018
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