URS DEFAULT DETERMINATION

Nintendo of America Inc. v. Domains By Proxy, LLC
Claim Number: FA1910001869477

DOMAIN NAME

<nintentodo.space>

PARTIES

	Complainant: Nintendo of America Inc. of Redmond, WA, United States of America
	Complainant Representative: Perkins Coie LLP Christian W. Marcelo of Seattle, WA, United States of America

	Respondent: Registration Private / Domains By Proxy, LLC Domains By Proxy, LLC of Scottsdale, AZ, US

REGISTRIES and REGISTRARS

	Registries: DotSpace Inc.
	Registrars: Go Daddy, LLC

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.
	Piotr Nowaczyk, as Examiner

PROCEDURAL HISTORY

	Complainant Submitted: November 5, 2019
	Commencement: November 6, 2019
	Default Date: November 21, 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

	Procedural Findings:
		Multiple Complainants: No multiple complainants or respondents and no extraneous domain names require dismissal.

Findings of Fact: The Complainant owns a trademark registration, for the NINTENDO mark: United States Reg. 4067797.

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:
  (i) for which the Complainant holds a valid national or regional registration and that is in current use; or
  (ii) that has been validated through court proceedings; or
  (iii) that is specifically protected by a statute or treaty in effect at the time the URS complaint is filed.

Determined: Finding for Complainant

The disputed domain name, <nintentodo.space> is confusingly similar to the NINTENDO Mark containing the entire NINTENDO mark, misspelled to include an extra ï¿½toï¿½ in the domain name. In addition, it is well accepted that the top level domain is irrelevant in assessing identity or confusing similarity, thus the ï¿½.spaceï¿½ is of no consequence here (Facebook Inc. v. Radoslav, Claim Number: FA1308001515825). The Examiner finds that the Complainant met the standard set out in 1.2.6.1. of URS Procedure ï¿½ the Complainant proved that it holds a valid trademark registration. Further, the Complainant confirmed that the registered trademark is in current use by presenting screenshots from the Complainantï¿½s website (www.nintendo.com).

[URS 1.2.6.2] Registrant has no legitimate right or interest to the domain name.

Determined: Finding for Complainant

According to the Complainant, the Respondent does not hold trademark registrations that are identical, similar, or in any way related to the NINTENDO Mark. Respondent is not authorized by the Complainant and there is no indication Respondent is commonly known by the disputed domain name. The Complainant believes that the Respondent did not make a legitimate use of the disputed domain name as it is using the resolving website to impersonate an official Nintendo website. This assertion is evidenced by the screenshot of <nintentodo.space>. In the absence of any counter arguments and evidences in support of the Respondentï¿½s rights and legitimate interest, the Examiner finds that the second element under URS Procedure 1.2.6.2 has been satisfied.

[URS 1.2.6.3] The domain name(s) was/were registered and is being used in bad faith.
  a. Registrant has registered or acquired the domain name primarily for the purpose of selling, renting or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of documented out-of pocket costs directly related to the domain name; or
  b. Registrant has registered the domain name in order to prevent the trademark holder or service mark from reflecting the mark in a corresponding domain name, provided that Registrant has engaged in a pattern of such conduct; or
  c. Registrant registered the domain name primarily for the purpose of disrupting the business of a competitor; or
  d. By using the domain name Registrant has intentionally attempted to attract for commercial gain, Internet users to Registrant's web site 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 Registrant's web site or location or of a product or service on that web site or location.

Determined: Finding for Complainant

According to WhoIs database, the disputed domain name was registered on 17 July 2019, many years after the registration of the NINTENDO mark. Therefore, the Respondent had known or should have known about the Complainantï¿½s rights. In the light of this, registering a domain name corresponding to a registered mark is viewed by the Examiner as bad faith. The Respondent has not submitted any evidences confirming circumstances listed in URS Procedure 5.7. In the absence of any defense which might have affected the decision on this issue, it is found that the third element of the policy under URS Procedure 1.2.6.3 has been satisfied.

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:

The Complaint was neither abusive nor contained material falsehoods.

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:

nintentodo.space

Piotr Nowaczyk
Examiner
Dated: November 27, 2019

Click Here to return to the main Domain Decisions Page.

Click Here to return to our Home Page