URS DEFAULT DETERMINATION
Add2Net, Inc. v. email biz pvt ltd
Claim Number: FA1906001849435
DOMAIN NAME
<lunarpages.xyz>
PARTIES
| Complainant: Add2Net, Inc. of Orange, CA, United States of America | |
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Complainant Representative: Cohen Business Law Group
Bennet G Kelley of Los Angeles, USA
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| Respondent: email biz pvt ltd / anshul goyal email biz pvt ltd of ludhiana, punjab, II, IN | |
REGISTRIES and REGISTRARS
| Registries: XYZ.COM LLC | |
| Registrars: Tucows.com Co. |
EXAMINER
| 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 Examiner in this proceeding. | |
| Ms. Kateryna Oliinyk, as Examiner |
PROCEDURAL HISTORY
| Complainant Submitted: June 24, 2019 | |
| Commencement: June 25, 2019 | |
| Default Date: July 10, 2019 | |
| Having reviewed the communications records, the Examiner finds that the Forum has discharged its responsibility under URS Procedure Paragraphs 3 and 4 and Rule 4 of the Rules for the Uniform Rapid Suspension System (the "Rules"). |
RELIEF SOUGHT
| Complainant requests that the domain name be suspended for the life of the registration. |
STANDARD OF REVIEW
| Clear and convincing evidence. |
FINDINGS and DISCUSSION
| Findings of Fact: Complainant contends that (1) Add2Net, Inc. (Add2Net) is a world leader in a variety of web-hosting, web-design, web-traffic referral and web-based companies, including its wholly owned sub-division Lunarpages (Lunarpages). Since 2001 Lunarpages has been a been a highly respected provider of information technology, IT infrastructure and business process outsourcing including web hosting services from basic hosting to advanced enterprise level solutions (Services); (2) Lunarpages first registered and used in commerce the domain name <lunarpages.com> on March 29, 2001. (3) Add2Net, Inc. is the owner of the federally registered trademark LUNARPAGES (U.S. Registration Numbers 4001196 and 3179173) (the �Mark�) for various international classes in association with such use. Both registrations have achieved section 8 and 15 incontestability status. (4) On June 11, 2014, Add2Net registered the Mark with the Trademark Clearinghouse (TMCH); the Marks status with the TMCH is VERIFIED. (5) The Registrant appears to be a serial cybersquatter as the reverse Whois search result shows Registrant owns 387 domains, 125 of which are .XYZ domains alone. (5) A prior URS proceeding was brought against the same registrant (FA1706001734986 - decided June 26, 2017). In that case, the ruling was in favor of Complainant. No response was submitted by the Defendant. Under URS 6.1. if at the expiration of the 14 Calendar Day Response period (or extended period if granted), the Registrant does not submit an answer, the Complaint proceeds to Default. Further URS 6.3. reads that all Default cases proceed to Examination for review on the merits of the claim. |
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Even though the Respondent has defaulted, URS 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.
[URS 1.2.6.1] The registered domain name(s) is/are identical or confusingly similar
to a word mark: Determined: Finding for Complainant Complainant owns rights in the word mark LUNARPAGES, based on U.S. Registration Numbers 4001196 and 3179173, the status and confirmation of use in which are supported by relevant entries with the Clearinghouse, copies of which are attached to the complaint. The registered domain name <lunarpages.xyz> fully incorporates the word marks LUNARPAGES for which the Complainant holds valid U.S. registrations. It is well accepted that the top level domain is irrelevant in assessing identity or confusing similarity, thus new gTLD .xyz does not preclude confusion of the conflicting domain with the Complainant�s marks. Respectively, the Examiner finds that the contested domain name is confusingly similar with the Complainant�s word marks under URS 1.2.6.1. (i). [URS 1.2.6.2] Registrant has no legitimate right or interest to the domain name. Determined: Finding for Complainant The Examiner determines that the Respondent is not commonly known by LUNARPAGES name and that the Respondent has no connection or affiliation with the Complainant and has not received any license or consent, express or implied, to use Complainant�s mark in a domain name or otherwise. When accessing the websites under the disputed domain name < lunarpages.xyz>, the user is addressed to the PPC web page with the �internet� link among others. Under WIPO WIPO Jurisprudential Overview 3.0 the use of a domain name to host a parked page comprising PPC links does not represent a bona fide offering where such links compete with or capitalize on the reputation and goodwill of the complainant�s mark or otherwise mislead Internet users. In any event, the case papers do not contain any information which might evidence on the legitimate fair use of the domain names by the Respondent. Therefore, the Examiner finds that the Complaint meets URS requirement of 1.2.6.2.
[URS 1.2.6.3] The domain name(s) was/were registered and is being used in bad faith.
Determined: Finding for Complainant The bad faith exists where the respondent, by using the domain name, has intentionally attempted to attract, for commercial gain, Internet users to its website or other on-line location, by creating a likelihood of confusion with the Complainant�s mark as to the source, sponsorship, affiliation, or endorsement of its website or location or of a product or service on its website or location. By visiting the site, customers will most likely expect to reach the website LUNARPAGES. The Respondent who has never been granted the right to use the " LUNARPAGES" mark and who does not have any affiliation ties with the Complainant is using the confusion in the minds of consumers over the use of the " LUNARPAGES" mark to divert users to the own website to increase the traffic to the domain name. Likelihood of confusion is not diminished by the possibility that the user will discover, upon arriving at Respondent�s website, that the website it reached is not the website it was seeking. Thus, the Examiner finds the Contested Domain Names misleading that supports finding of bad faith registration under URS 1.2.6.3.(d). FINDING OF ABUSE or MATERIAL FALSEHOOD The Examiner may find that the Complaint was brought in an abuse of this proceeding or that it contained material falsehoods. The Examiner finds as follows:
DETERMINATION
After reviewing the parties submissions, the Examiner determines that the Complainant
has demonstrated all three elements of the URS by a standard of clear and convincing
evidence; the Examiner hereby Orders the following domain name(s) be SUSPENDED for
the duration of the registration:
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Ms. Kateryna Oliinyk Examiner
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