Boygenius Inventions, LLC v. Nabi Bux / iwebsolutions
Claim Number: FA1810001811976
Complainant is Boygenius Inventions, LLC (“Complainant”), represented by Matthew G McKinney of Allen, Dyer, Doppelt and Gilchrist, P.A., Florida. USA. Respondent is Nabi Bux / iwebsolutions (“Respondent”), Pakistan.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <wpbeginnerplus.com>, 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.
Sebastian M W Hughes as Panelist.
Complainant submitted a Complaint to the Forum electronically on October 16, 2018; the Forum received payment on October 16, 2018.
On October 17, 2018, NameCheap, Inc. confirmed by e-mail to the Forum that the <wpbeginnerplus.com> 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 October 24, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 13, 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@wpbeginnerplus.com. Also on October 24, 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.
A timely Response was received and determined to be complete on November 5, 2018.
On November 7, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Sebastian M W Hughes 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 has owned and operated the website <www.wpbeginner.com> (the “Website”) since 2009 under the trademark wpbeginner (the “Trademark”), and is the owner of US federal registration No. 4,854,860 for the Trademark, with a registration date of November 17, 2015. Complainant provides an online forum for website development resources on the Website.
The domain name is confusingly similar to the Trademark. Respondent has no rights or legitimate interests in the domain name. Respondent is using the domain name in respect of a website providing the same services offered by Complainant on the Website under the Trademark. Respondent is using the domain name to create confusion so as to intentionally attract Internet users to Respondent’s website, for commercial gain.
B. Respondent
The domain name was legitimately registered with an ICANN accredited Registrar.
The domain name does not contain any particular/special words which belong to or are the property of some particular party.
Respondent did not register the domain name to hurt someone or make competition with Complainant’s Website. Respondent’s website is only a Wordpress (WP) learning site with a few other things such as forums for learning programming.
If Complainant still thinks the domain name should only be used by Complainant then Complainant may purchase if from Respondent. Respondent will think of it if Complainant compensates Respondent for the loss which Respondent will bear if the domain name is transferred.
Complainant has established all the elements entitling it to transfer of the 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.
The Panel finds that Complainant has rights in the Trademark acquired through use and registration.
The domain name incorporates the entirety of the Trademark, together with the word “plus”.
Where a relevant trademark is recognizable within a disputed domain name, the addition of other terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) does not prevent a finding of confusing similarity under the first element. See Wiluna Holdings, LLC v. Edna Sherman, FA 1652781 (Forum Jan. 22, 2016).
The Panel therefore finds that the domain name is confusingly similar to the Trademark.
Respondent has failed to demonstrate any rights or legitimate interests in the domain name. To the contrary, the disputed domain name has been used to deliberately attract Internet users to the Respondent’s website, a website which provides services in direct competition with those offered by Complainant on the Website under the Trademark.
In all the circumstances, the Panel finds that Respondent has registered and used the domain name in bad faith. In light of the manner of use of Respondent’s website, the Panel concludes Respondent must have known of Complainant and of its Trademark when Respondent registered the domain name. Respondent has not made any submissions to the contrary. The Panel therefore finds bad faith is made out under paragraph 4(b)(iv) of the Policy.
The Panel considers Respondent’s offer in the Response to transfer the domain name to Complainant in return for (unspecified and unquantified) compensation for Respondent’s alleged loss provides further support for a finding of bad faith under paragraph 4(b)(i) of the Policy.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <wpbeginnerplus.com> domain name be TRANSFERRED from Respondent to Complainant.
Sebastian M W Hughes, Panelist
Dated: November 9, 2018
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