RDC Inn at Perry Cabin LLC v. namkaerf rdn
Claim Number: FA2009001911347
Complainant is RDC Inn at Perry Cabin LLC (“Complainant”), represented by Sean Garrison of Bacal Andersen & Garrison Law Group, United States. Respondent is namkaerf rdn (“Respondent”), Indonesia.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <theinnatperrycabin.com>, registered with GoDaddy.com, LLC.
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.
Paul M. DeCicco, as Panelist.
Complainant submitted a Complaint to the Forum electronically on September 4, 2020; the Forum received payment on September 4, 2020.
On September 9, 2020, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <theinnatperrycabin.com> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, 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 September 14, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 5, 2020 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@theinnatperrycabin.com. Also on September 14, 2020, 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 October 12, 2020, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Paul M. DeCicco 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 contends as follows:
Complainant is the owner of the Inn at Perry Cabin, a resort on Maryland’s eastern shore of the Chesapeake Bay.
Complainant has rights in the THE INN AT PERRY CABIN mark through its registration with the United States Patent and Trademark Office (“USPTO”).
Respondent’s <theinnatperrycabin.com> domain name is identical to Complainant’s mark as it incorporates the mark in its entirety and adds only the “.com” generic top-level domain (“gTLD”).
Respondent lacks rights and legitimate interests in the <theinnatperrycabin.com> domain name. Respondent is not commonly known by the at-issue domain name, and Complainant has not authorized Respondent to use it’s the INN AT PERRY CABIN mark in a domain name or otherwise. Respondent does not use the domain name for any bona fide offering of goods or services, nor any legitimate noncommercial or fair use, but instead attempts to divert internet users to a website related to gambling.
Respondent registered and uses the <theinnatperrycabin.com> domain name in bad faith. Respondent attempts to profit off of Complainant’s widely known mark by diverting internet users seeking Complainant’s services to the at-issue domain name’s website where visitors are redirected to a gambling related website, presumably Respondent receives a referral fee. Additionally, Respondent registered the at-issue domain name with actual knowledge of Complainant’s rights in the mark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has rights in the THE INN AT PERRY CABIN mark through its registration of such mark with the USPTO.
Respondent is not affiliated with Complainant and had not been authorized to use Complainant’s trademark in any capacity.
Respondent registered the at‑issue domain name after Complainant acquired rights in its THE INN AT PERRY CABIN trademark.
Respondent uses the at-issue domain name to ultimately link to a website related to gambling.
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 at-issue domain name is confusingly similar to a trademark in which the Complainant has rights.
Complainant establishes trademark rights in its THE INN AT PERRY CABIN mark by evidencing the mark’s registration with the USPTO. Thereby, Complainant demonstrates rights in a mark under Policy ¶ 4(a)(i). See Paisley Park Enters. v. Lawson, FA 384834 (Forum Feb. 1, 2005) (finding that the complainant had established rights in the PAISLEY PARK mark under Policy ¶ 4(a)(i) through registration of the mark with the USPTO).
The at-issue <theinnatperrycabin.com> domain name is identical to Complainant’s THE INN AT PERRY CABIN mark. Respondent’s domain name contains Complainant’s entire THE INN AT PERRY CABIN trademark less its spaces, followed by the top-level domain name “.com.” The differences between Respondent’s domain name and Complainant’s trademark are insufficient to distinguish one from the other for the purposes of Policy ¶ 4(a)(i). Therefore the Panel concludes that Respondent’s <theinnatperrycabin.com> domain name is identical to Complainant’s THE INN AT PERRY CABIN mark under the Policy. See F.R. Burger & Associates, Inc. v. shanshan lin, FA 1623319 (Forum July 9, 2015) (holding, “Respondent’s <frburger.com> domain name is identical to Complainant’s FRBURGER mark because it differs only by the domain name’s addition of the top-level domain name “.com.”).
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. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006). Since Respondent failed to respond, Complainant’s prima facie showing acts conclusively.
Respondent lacks both rights and legitimate interests in respect of the at-issue domain name. Respondent is not authorized to use Complainant’s trademark in any capacity and, as discussed below, there are no Policy ¶ 4(c) circumstances from which the Panel might find that Respondent has rights or interests in respect of the at‑issue domain name.
WHOIS information for the at-issue domain name identifies the domain name’s registrant as “namkaerf rdn” and the record before the Panel contains no evidence that otherwise tends to prove that Respondent is commonly known by the <theinnatperrycabin.com> domain name. The Panel therefore concludes that Respondent is not commonly known by the <theinnatperrycabin.com> domain name for the purposes of Policy ¶ 4(c)(ii). See Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Nat. Arb. Forum July 17, 2006) (concluding that the respondent was not commonly known by the <coppertown.com> domain name where there was no evidence in the record, including the WHOIS information, suggesting that the respondent was commonly known by the disputed domain name).
Respondent’s trademark identical <theinnatperrycabin.com> domain name ultimately delivers internet users to a gambling related website wholly unrelated to Complainant. Using the domain name in this manner is neither a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor a non-commercial or fair use pursuant to Policy ¶ 4(c)(iii).). See Materia, Inc. v. Michele Dinoia, FA1507001627209 (Forum August 20, 2015) (“The Panel finds that Respondent is using a confusingly similar domain name to redirect users to a webpage with unrelated hyperlinks, that Respondent has no other rights to the domain name, and finds that Respondent is not making a bona fide offering or a legitimate noncommercial or fair use.”); see also, Spike's Holding, LLC v. Nexperian Holding Limited, FA 1736008 (Forum July 21, 2017) (“Using a confusingly similar domain to display unrelated content can evince a lack of a bona fide offering of goods or services or legitimate noncommercial or fair use… The Panel therefore finds that Respondent’s unrelated use of the <finishnline.com> domain name evinces a lack of rights and legitimate interests under Policy ¶ 4(c)(i) & (iii).”).
Given the forgoing, Complainant satisfies its initial burden and conclusively demonstrates Respondent’s lack of rights and lack of interests in respect of the at-issue domain name pursuant to Policy ¶ 4(a)(ii).
The at-issue domain name was registered and is being used in bad faith. As discussed below without limitation, bad faith circumstances are present from which the Panel concludes that Respondent acted in bad faith pursuant to Policy ¶ 4(a)(iii).
First, Respondent’s <theinnatperrycabin.com> domain name is used to confuse or mislead internet users into believing that the domain name, and thus its related content and/or linked content, are sponsored or endorsed by Complainant, when they are not. By exploiting the confusion it intentionally created Respondent inappropriately capitalizes on the goodwill residing in Complainant’s THE INN AT PERRY CABIN trademark. Respondent’s use of the domain name indicates Respondent’s bad faith under Policy ¶ 4(b)(iv). See Dovetail Ventures, LLC v. Klayton Thorpe, FA1506001625786 (Forum Aug. 2, 2015) (holding that the respondent had acted in bad faith under Policy ¶ 4(b)(iv), where it used the disputed domain name to host a variety of hyperlinks, unrelated to the complainant’s business, through which the respondent presumably commercially gained).
Finally, Respondent had actual knowledge of Complainant’s rights in the THE INN AT PERRY CABIN mark when it registered <theinnatperrycabin.com> as a domain name. Respondent’s actual knowledge is evident from the longstanding use and widespread recognition of Complainant’s THE INN AT PERRY CABIN trademark. Respondent’s registration and use of a trademark identical domain name with knowledge of Complainant’s trademark rights in such domain name shows Respondent’s bad faith pursuant to Policy ¶ 4(a)(iii). See Minicards Vennootschap Onder FIrma Amsterdam v. Moscow Studios, FA 1031703 (Forum Sept. 5, 2007) (holding that respondent registered a domain name in bad faith under Policy ¶ 4(a)(iii) after concluding that respondent had actual knowledge of Complainant's mark when registering the disputed domain name); see also, Univision Comm'cns Inc. v. Norte, FA 1000079 (Forum Aug. 16, 2007) (rejecting the respondent's contention that it did not register the disputed domain name in bad faith since the panel found that the respondent had knowledge of the complainant's rights in the UNIVISION mark when registering the disputed domain name).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <theinnatperrycabin.com> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: October 12, 2020
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