Everlux, Inc. v. dailux et al.
Claim Number: FA1811001816689
Complainant: Everlux, Inc., of Edgewood, New York, United States of America.
Complainant Representative: None
Respondent: dailux, of Shenzhen, International, China.
Respondent Representative: None
REGISTRIES and REGISTRARS
Registries: NeuStar
Registrars: Tucows Domains 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 Examiner in this proceeding.
Jeffrey M. Samuels, as Examiner.
Complainant submitted: November 15, 2018
Commencement: November 16, 2018
Default Date: December 3, 2018
Having reviewed the communications records, the Examiner finds that the Forum has discharged its responsibility under usRS Procedure Paragraphs 3 and 4 and Rule 4 of the Rules for the .usTLD Rapid Suspension System (the "Rules").
Complainant requests that the domain name be suspended for the life of the registration.
Clear and convincing evidence.
The complaint alleges that the domain name registrant was a supplier to Complainant in early 2017. After Complainant, Everlux, Inc., stopped importing from Respondent, Complainant requested Respondent to discontinue use of the disputed domain name, everlux.us. Respondent refused, however, to discontinue such use. In May 2018, Complainant began seeing posts of false accusations on the home page and other pages on the website found at everlux.us. According to Complainant, such accusations and false statements have hurt its reputation and disrupted its business.
Complainant submits that registrant does not hold a valid national registration for the company in the .us domain, that registrant has no legitimate right or interest to the domain name, and that the disrupted domain name is being used in bad faith insofar as registrant is using the domain name to disrupt the business of the Complainant.
Even though the Respondent has defaulted, usRS Procedure 1.2.6 requires Complainant to make a prima facie case, proven by clear and convincing evidence, for each of the following three elements to obtain an order that a domain name should be suspended.
1. In order to prevail, Complainant must submit evidence that the registered domain name is identical or confusingly similar to a mark for which Complainant holds a valid national or regional registration that is in current use. In apparent support of such requirement, Complainant submitted a Certificate of Incorporation of Everlux, Inc. that was filed with the State of New York. Such certificate, however, does not establish that Complainant holds a valid national or registration for the mark EVERLUX, or for any mark for that matter. The Examiner, therefore, finds that Complainant has failed to present clear and convincing evidence with respect to this element of the policy.
2. The Examiner finds that Complainant has failed to present clear and convincing evidence that Respondent has no legitimate right or interest in the disputed domain name. There is no claim or evidence, for example, that Respondent’s registration of the domain name was not authorized by Complainant.
3. The Examiner finds that while the disputed domain name was not registered in bad faith, it is currently being used in bad faith. Complainant alleges that the disputed domain name resolves to a site that contains false accusations regarding Complainant that is injuring Complainant’s business.
After reviewing Complainant’s submissions, the Examiner determines that
Complainant has NOT demonstrated all three elements of the usRS by a standard of clear and convincing evidence. The Examiner hereby Orders the following domain name be RETURNED to the control of Respondent:
everlux.us
Jeffrey M. Samuels, Examiner
Dated: December 6, 2018
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