NCS Pearson, Inc. v. Amanda Sozak
Claim Number: FA1911001873162
Complainant is NCS Pearson, Inc. (“Complainant”), represented by Mayura I. Noordyke of Cozen O’Connor, Minnesota, USA. Respondent is Amanda Sozak (“Respondent”), Michigan, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <wechsleriqtest.com>, registered with NameCheap, Inc..
The undersigned certifies that he has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Eugene I. Low as Panelist.
Complainant submitted a Complaint to the Forum electronically on November 26, 2019; the Forum received payment on November 26, 2019«DateHardCopy».
On November 28, 2019, NameCheap, Inc. confirmed by e-mail to the Forum that the <wechsleriqtest.com> domain name is registered with NameCheap, Inc. and that Respondent is the current registrant of the name. NameCheap, Inc. has verified that Respondent is bound by the NameCheap, Inc. 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 5, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 26, 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@wechsleriqtest.com. Also on December 5, 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 December 31, 2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Eugene I. Low 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.
A. Complainant
Complainant is a global information services company. Complainant has rights in the WECHSLER mark through its registration of the mark with the United States Patent and Trademark Office (“USPTO”) (e.g. Reg. No. 1,768,631, registered May 4, 1993). Respondent’s <wechsleriqtest.com> domain name is identical or confusingly similar to Complainant’s mark as it adds the common or generic terms “iq” and “test” and the “.com” generic top-level domain (“gTLD”).
Respondent lacks rights or legitimate interests in the <wechsleriqtest.com> domain name. Respondent is not commonly known by the disputed domain name, nor has Complainant authorized, licensed, or otherwise permitted Respondent to use the mark. Respondent fails to use the disputed domain name in connection with a bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent attempts to capitalize on Complainant’s mark by diverting Internet users to the disputed domain name and offering related goods or services. Respondent uses the disputed domain name to pass off as Complainant and offer competing online tests.
Respondent registered and uses the <wechsleriqtest.com> domain name in bad faith. Respondent uses the disputed domain name to direct Internet users to its own website and third-party websites that offer goods and services that overlap and compete with Complainant. Respondent uses the disputed domain name to attempt to give the impression of a connection with Complainant and profit from the consumer confusion. Respondent had actual and constructive knowledge of Complainant’s trademark rights prior to registration of the disputed domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
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”).
The Panel finds that Complainant has established this element.
Complainant asserts rights in the WECHSLER mark based on registration with the USPTO. Registration of a mark is generally sufficient to confer a complainant’s rights in a mark for the purposes of Policy ¶ 4(a)(i). In addition, based on Complainant’s evidence and submissions, the Panel also finds that Complainant has acquired common law rights the WECHSLER mark through use.
The Panel accepts Complainant’s argument that Respondent’s <wechsleriqtest.com> domain name is identical or confusingly similar to Complainant’s mark as it adds the common or generic terms “iq” and “test” and the “.com” gTLD. Given that Complainant uses its WECHSLER mark in relation to cognitive assessments and related goods and services, the Panel finds that the generic terms “iq” and “test” fail to distinguish the disputed domain name from Complainant’s mark.
The Panel finds in favor of Complainant.
The Panel is satisfied that Complainant has made out a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), and that Respondent (who defaults in filing a Response) fails to overturn this prima facie case.
The Panel accepts Complainant’s submissions that Respondent lacks rights or legitimate interests in the <wechsleriqtest.com> domain name as Respondent is not commonly known by the disputed domain name, nor has Complainant authorized, licensed, or otherwise permitted Respondent to use the mark. The WHOIS information for the disputed domain name lists the registrant as “Amanda Sozak,” and there is no other evidence to suggest that Respondent was authorized to use the WECHSLER mark.
The Panel also accepts Complainant’s argument Respondent apparently fails to use the <wechsleriqtest.com> domain name in connection with a bona fide offering of goods or services or legitimate noncommercial or fair use as Respondent attempts to capitalize on Complainant’s mark by diverting Internet users to the disputed domain name and offering related goods or services. Complainant provides screenshots of the resolving webpage of the disputed domain name which advertises to users an IQ test referencing the WECHSLER mark. This supports Complainant’s contention that Respondent uses the disputed domain name to pass off as Complainant by offering competing online tests.
The Panel finds in favor of Complainant.
The Panel accepts Complainant’s submissions that Respondent registered and uses the <wechsleriqtest.com> domain name in bad faith as Respondent uses the disputed domain name to direct Internet users to its own website and third-party websites that offer goods and services that overlap and compete with Complainant. Complainant has provided screenshots of the resolving webpage of the disputed domain name which advertises to users an IQ test which displays the WECHSLER mark and which Complainant argues is competing. The Panel accepts Complainant’s argument that Respondent uses the disputed domain name to attempt to give the impression of a connection with Complainant and profit from the consumer confusion. Given the content of the resolving webpage of the disputed domain name, and the extensive use of the WECHSLER mark based on Complainant’s materials, the Panel has no difficulties in finding that Respondent had actual knowledge of Complainant’s trademark rights prior to registration of the disputed domain name. In the absence of any Response from Respondent, the Panel accepts that Complainant has satisfied this element.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <wechsleriqtest.com> domain name be TRANSFERRED from Respondent to Complainant.
Eugene I. Low, Panelist
Dated: January 2, 2020
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