Slingshot Transportation, Inc. v. InBok Lee
Claim Number: FA1904001841279
Complainant is Slingshot Transportation, Inc. (“Complainant”), represented by James R. Duby of Duby Law Firm, Michigan, USA. Respondent is InBok Lee (“Respondent”), Canada.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <slingshot.info> (‘the Domain Name’), registered with 1&1 IONOS SE.
The undersigned certifies that she has acted independently and impartially and to the best of her knowledge has no known conflict in serving as Panelist in this proceeding.
Dawn Osborne as Panelist.
Complainant submitted a Complaint to the Forum electronically on April 30, 2019; the Forum received payment on April 30, 2019.
On May 01, 2019, 1&1 IONOS SE confirmed by e-mail to the Forum that the <slingshot.info> domain name is registered with 1&1 IONOS SE and that Respondent is the current registrant of the name. 1&1 IONOS SE has verified that Respondent is bound by the 1&1 IONOS SE 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 2, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 22, 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 email@example.com. Also on May 2, 2019, 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 May 24, 2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Dawn Osborne 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.
The Complainant’s contentions can be summarized as follows:
The Complainant is the owner of the mark SLINGSHOT registered in the USA and Canada for transportation services and used since 1996.
The Domain Name registered in 2017 is identical to the Complainant’s mark except for the gTLD ".info" which does not prevent this confusing similarity.
The Respondent does not have any rights or legitimate interests in the Domain Name, is not commonly known by it, and Respondent’s use has not been authorized by the Complainant. The Domain Name has been used for pay per click links, which is not a bona fide offering of goods and services or a legitimate noncommercial fair use.
This use is registration and use in bad faith diverting Internet users for commercial gain.
Following a cease and desist letter from the Complainant the page now is inactive with a page that reads ‘This site can’t be reached’. Passive holding of a Domain Name in these circumstances can also be bad faith.
Respondent failed to submit a Response in this proceeding.
The Complainant is the owner of the mark SLINGSHOT registered in the USA and Canada for transportation services and since 1996.
The Domain Name registered in 2017 has been used for pay per click links relating to slingshots and has been offered for sale generally for $399.
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 set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
Identical or Confusingly Similar
The Domain Name for the purposes of the Policy is identical to the Complainant’s SLINGSHOT mark (registered in the USA and Canada with first use recorded as 1996 for transportation services) adding only the gTLD “.info.”
The gTLD “.info” does not serve to distinguish the Domain Name from the SLINGSHOT mark. See Red Hat Inc. v. Haecke, FA 726010 (Forum July 24, 2006) (concluding that the redhat.org domain name is identical to the complainant's red hat mark because the mere addition of the TLD was insufficient to differentiate the disputed domain name from the mark).
As such, the Panel holds that Paragraph 4(a)(i) of the Policy has been satisfied by the Complainant.
Rights or Legitimate Interests
The Respondent has not answered this Complaint and there is no evidence or reason to suggest the Respondent is, in fact, commonly known by the Domain Name. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum Sep. 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark). The Complainant has not authorized the Respondent to use SLINGSHOT as a mark.
However, the Respondent was using the Domain Name to point to pay per click links relating to slingshots the weapon. There is no indication that it has been used to target the Complainant or for any other use except in relation to the weapon commonly known as a slingshot. There is no evidence the Domain Name has been used in relation to transportation services or has been pointed to commercial web sites using the goodwill of the Complainant in the mark SLINGSHOT for transportation services to attract interest on the Internet. In the opinion of the Panel, this is an ordinary and fair use of the Domain Name. Since slingshot is an ordinary generic term and it is being used in its generic sense, the fact that the Domain Name has been offered for sale in these circumstances is also legitimate and fair. Accordingly, the Panel finds that the Complainant has not shown that the Respondent did not have a right or legitimate interest in using the Domain Name in the “.info” domain in relation to the weapon the slingshot and the Complainant has not satisfied the second limb of the Policy.
See High Adventure Ministries v. JOHN TAYLOE / VOICE OF HOPE, FA 1737678 (Forum Aug. 9, 2017) (holding that a complainant’s failure to satisfactorily meet its burden suggests respondent has rights and legitimate interests in the domain name under UDRP ¶ 4(a)(ii)).
Registration and Use in Bad Faith
Since the Complainant did not meet its burden on the second limb of the Policy it is not necessary to make any determination on registration and use in bad faith.
If the Panel concludes that Respondent has rights or legitimate interests in the <slingshot.info> domain name pursuant to Policy ¶ 4(a)(ii), the Panel may also find that Respondent did not register or use the disputed domain name in bad faith pursuant to Policy ¶ 4(a)(iii). See Record Connect, Inc. v. Chung Kit Lam / La-Fame Corporation, FA 1693876 (Forum Nov. 3, 2016) (finding that the issue of bad faith registration and use was moot once the panel found the respondent had rights or legitimate interests in the disputed domain name); see also Sheet Labels, Inc. v. Harnett, Andy, FA 1701423 (Forum Jan. 4, 2017) (finding that because the respondent had rights and legitimate interests in the disputed domain name, its registration of the name was not in bad faith).
Having not established all three elements required under the ICANN Policy, the Panel concludes that relief shall be DENIED.
Accordingly, it is Ordered that the <slingshot.info> domain name REMAIN WITH Respondent.
Dawn Osborne, Panelist
Dated: May 25, 2019
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