DECISION

 

Josue Ponce v. Super Privacy Service LTD c/o Dynadot

Claim Number: FA1812001821777

 

PARTIES

Complainant is Josue Ponce (“Complainant”), represented by Me Fabienne Candeago of Dupuis Paquin, avocats et conseillers d'affaires, inc., Quebec.  Respondent is Super Privacy Service LTD c/o Dynadot (“Respondent”), California, USA.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <bonlocataires.com>, registered with Dynadot, LLC.

 

PANEL

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.

 

John J. Upchurch as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to the Forum electronically on December 19, 2018; the Forum received payment on December 19, 2018.

 

On December 21, 2018, Dynadot, LLC confirmed by e-mail to the Forum that the <bonlocataires.com> domain name is registered with Dynadot, LLC and that Respondent is the current registrant of the name.  Dynadot, LLC has verified that Respondent is bound by the Dynadot, 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 December 27, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 16, 2019 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@bonlocataires.com.  Also on December 27, 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 January 17, 2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed John J. Upchurch 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.

 

RELIEF SOUGHT

Complainant requests that the domain name be transferred from Respondent to Complainant.

 

PARTIES' CONTENTIONS

A.   Complainant

1.    Complainant, Josue Ponce, owns and uses the BONSLOCATAIRES.COM mark in connection with its apartment rental, brokerage, real estate leasing, building management, and apartment management services. Complainant has rights in the BONSLOCATAIRES.COM mark based upon its registration of the mark with the Canadian Intellectual Property Office (“CIPO”) (e.g. Reg. No. TMA984,271, registered Nov. 6, 2017). See Amend. Compl. Annex. 1. Respondent’s <bonlocataires.com> domain name is confusingly similar to Complainant’s BONSLOCATAIRES.COM mark, as the domain name includes the entire mark merely emitting a single letter.

 

2.    Respondent has no rights or legitimate interests in the <bonlocataires.com> domain name. Respondent is not commonly known by the disputed domain name, nor has Complainant authorized or licensed Respondent to use the BONSLOCATAIRES.COM 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 attempts to redirect Internet users to a competing webpage.

 

3.    Respondent registered and is using the <bonlocataires.com> domain name in bad faith. Respondent attempts to create a likelihood of confusion through the use of Complainant’s trademark and commercially gains by disrupting Complainant’s business. Furthermore, Respondent is engaged in the practice of typosquatting. Finally, Respondent had actual knowledge of Complainant’s rights in the mark prior to registering the <bonlocataires.com> domain name.

 

B.   Respondent

1.    Respondent failed to submit a Response in this proceeding.

 

FINDINGS

1.    Respondent’s <bonlocataires.com> domain name is confusingly similar to Complainant’s BONSLOCATAIRES.COM mark.

2.    Respondent does not have any rights or legitimate interests in the

<bonlocataires.com> domain name.

3.    Respondent registered or used the <bonlocataires.com> domain name in bad faith.

 

DISCUSSION

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.”).

 

Identical and/or Confusingly Similar

Complainant claims rights in the BONSLOCATAIRES.COM mark based upon registration with the CIPO. Registration with the CIPO is sufficient to establish rights in a mark per Policy ¶ 4(a)(i). See THE TORONTO-DOMINION BANK v. Lhhon Hoy / Kathleen Kim / Grt Fyo / Leon Ho, FA 1724017 (Forum May 17, 2017) (finding registrations with the USPTO and CIPO are satisfactory demonstrations of Policy ¶ 4(a)(i) rights). Complainant provides a copy of its CIPO registration for the BONSLOCATAIRES.COM mark (e.g. Reg. No. TMA984,271, registered Nov. 6, 2017). See Amend. Compl. Annex. 1. Accordingly, the Panel agrees that Complainant has rights in the mark under Policy ¶ 4(a)(i).

 

Complainant next argues Respondent’s <bonlocataires.com> domain name is confusingly similar to the BONSLOCATAIRES.COM mark, as the name as Respondent incorporates the entire mark in the disputed domain name merely emitting the letter “s.” Such changes are not sufficient to distinguish a domain name from an incorporated mark in a Policy ¶ 4(a)(i) analysis. See Twitch Interactive, Inc. v. zhang qin, FA 1626511 (Forum Aug. 4, 2015) (“The relevant comparison then resolves to the trademark, TWITCH, with the term, ‘titch,’ which, as can be readily seen, merely removes the letter ‘w’ from the trademark.  In spite of that omission the compared integers remain visually and aurally very similar and so Panel finds them to be confusingly similar for the purposes of the Policy.”). The Panel therefore determines the <bonlocataires.com> domain name is confusingly similar to the BONSLOCATAIRES.COM mark per Policy ¶ 4(a)(i).

 

Rights or Legitimate Interests

Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), then the burden shifts to Respondent to show it does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests”).

 

Complainant argues that Respondent has no rights or legitimate interests in the <bonlocataires.com> domain name, as Respondent is not commonly known by the disputed domain name, nor has Complainant authorized Respondent to use the BONSLOCATAIRES.COM mark in any way. 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 the registrant of the at-issue domain name as “Super Privacy LTD c/o Dynadot,” and no information on the record indicates Respondent was authorized to register a domain name incorporating Complainant’s mark. The Panel therefore finds under Policy ¶ 4(c)(ii) that Respondent has not been commonly known by the <bonlocataires.com> domain name.

 

Complainant further argues Respondent’s lack of rights or legitimate interests in the <bonlocataires.com> 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. Complainant contends instead that the name resolves to a competing website. 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).”). Specifically, Complainant contends that the domain name resolves to the webpage of Complainant’s direct competitors, CORPIQ. See Amend. Compl. Annex. 5. Complainant argues that the website gives the false impression that it is affiliated with, and authorized by, Complainant. The Panel therefore determines that Respondent does not have rights or legitimate interests in the <bonlocataires.com> domain name.

 

Registration and Use in Bad Faith

Complainant claims Respondent’s use of the <bonlocataires.com> domain name to compete with Complainant’s business demonstrates that Respondent registered and used the domain name in bad faith. Use of a domain name to compete with and disrupt the complainant’s business is behavior indicative of bad faith registration and use per Policy ¶¶ 4(b)(iii) and (iv). See Fitness International, LLC v. ALISTAIR SWODECK / VICTOR AND MURRAY, FA1506001623644 (Forum July 9, 2015) (“Respondent uses the at-issue domain name to operate a website that purports to offer health club related services such as fitness experts, fitness models, fitness venues, exercise programs, and personal training, all of which are the exact services offered by Complainant.  Doing so causes customer confusion, disrupts Complainant’s business, and demonstrates Respondent’s bad faith registration and use of the domain name pursuant to Policy ¶ 4(b)(iii).”); see also Citadel LLC and its related entity, KCG IP Holdings, LLC v. Joel Lespinasse / Radius Group, FA1409001579141 (Forum Oct. 15, 2014) (“Here, the Panel finds evidence of Policy ¶ 4(b)(iv) bad faith as Respondent has used the confusingly similar domain name to promote its own financial management and consulting services in competition with Complainant.”). Complainant claims the at-issue domain name redirects to the webpage of Complainant’s direct competitor, CORPIQ. See Amend. Compl. Annex. 5. The Panel therefore finds Respondent registered and used the domain name in bad faith per Policy ¶¶ 4(b)(iii) and/or (iv).

 

Next, Complainant contends the Respondent is engaged in the practice of typosquatting. A respondent who attempts to commercially gain from the common misspelling of complainant’s mark may be acting in bad faith per Policy ¶ 4(a)(iii). See Vanguard Trademark Holdings USA LLC v. Shuai Wei Xu / Xu Shuai Wei, FA 1784238 (Forum June 1, 2018) (finding the respondent engaged in typosquatting—and thus registered and used the at-issue domain names in bad faith—where the names consisted of the complainant’s mark with small typographical errors introduced therein). Complainant argues that Respondent intentionally omitted the “s” from Complainant’s BONSLOCATAIRES.COM mark in the <bonlocataires.com> domain name. Therefore, the Panel agrees that Respondent registered and uses the disputed domain name in bad faith per Policy ¶ 4(a)(iii).

 

Finally, Complainant asserts that Respondent had actual knowledge of Complainant’s rights in the mark prior to registering the <bonlocataires.com> domain name. Actual knowledge of complainant’s rights in the mark may be proven through respondent’s use under Policy ¶ 4(a)(iii). See iFinex Inc. v. xu shuaiwei, FA 1760249 (Forum Jan. 1, 2018) (“Respondent’s prior knowledge is evident from the notoriety of Complainant’s BITFINEX trademark as well as from Respondent’s use of its trademark laden domain name to direct internet traffic to a website which is a direct competitor of Complainant”). Complainant contends that Respondent’s redirection of Internet users to a competing webpage demonstrates that Respondent had actual knowledge of Complainant’s rights in the mark. Therefore, the Panel agrees that Respondent had actual knowledge of Complainant’s rights in the mark prior to registering the <bonlocataires.com> domain name and thus is acting in bad faith under Policy ¶ 4(a)(iii).

 

DECISION

Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.

 

Accordingly, it is Ordered that the <bonlocataires.com> domain name be TRANSFERRED from Respondent to Complainant.

 

 

John J. Upchurch, Panelist

Dated:  January 29, 2019