Logitech Europe S.A. v. Michael W Scearce
Claim Number: FA2009001912616
Complainant is Logitech Europe S.A. (“Complainant”), represented by Christopher M. Dolan of Barnes & Thornburg LLP, Illinois, USA. Respondent is Michael W Scearce (“Respondent”), Virginia, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <astrogamer.net>, registered with Google 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.
Hon. Karl v. Fink (Ret.) as Panelist.
Complainant submitted a Complaint to the Forum electronically on September 16, 2020; the Forum received payment on September 16, 2020.
On September 17, 2020, Google LLC confirmed by e-mail to the Forum that the <astrogamer.net> domain name is registered with Google LLC and that Respondent is the current registrant of the name. Google LLC has verified that Respondent is bound by the Google 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 22, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 13, 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@astrogamer.net. Also on September 22, 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 16, 2020, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Hon. Karl V. Fink (Ret.) 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 leading worldwide provider of personal peripherals and computer and mobile accessories for PC navigation, video communication and collaboration, music and smart home, and gaming. Complainant has rights in the ASTRO mark through Complainant’s registration of the mark with the United States Patent and Trademark Office (“USPTO”) (e.g. Reg. No. 4,933,259, registered April 5, 2016). Respondent’s <astrogamer.net> domain name is identical or confusingly similar to Complainant’s ASTRO mark as it contains the ASTRO mark in its entirety and merely adds the generic term “gamer” and the generic top-level domain (gTLD) “.net.”
Respondent lacks rights or legitimate interests in the <astrogamer.net> domain name. Respondent has never been known or referred to by ASTRO or any variation thereof, nor has Respondent been authorized by Complainant to use the ASTRO mark. Respondent has not used the <astrogamer.net> domain name in connection with a bona fide offering of goods or services as Respondent’s website prominently displays Complainant’s trademarks, copyrighted material, and other information to cause Internet users to mistakenly believe Respondent’s website is affiliated with or hosted, sponsored, or authorized by Complainant, when it is not. Additionally, Respondent registered the <astrogamer.net> domain name using a privacy service to conceal its identity.
Respondent registered and uses the <astrogamer.net> domain name in bad faith. Respondent’s website disrupts Complainant’s business as Respondent registered <astrogamer.net> primarily for the purpose of deceiving consumers as to the source, sponsorship, affiliation, or endorsement of Respondent’s Website by using an identical or confusingly similar domain to Complainant’s ASTRO mark. Respondent had actual knowledge of Complainant’s rights to the ASTRO mark prior to registering <astrogamer.net> as evidenced by Respondent's attempt to pass off its website as Complainant’s official ASTRO Website by copying Complainant’s ASTRO Website. Respondent also had constructive notice of Complainant’s rights to the ASTRO mark prior to registering <astrogamer.net> because Complainant had been using its ASTRO mark for more than twelve years, and had owned a United States registration for the ASTRO mark for more than eight years when Respondent registered the domain.
B. Respondent
Respondent failed to submit a Response in this proceeding.
For the reasons set forth below, based upon Complainant’s uncontested allegations and evidence, the Panel finds that Complainant is entitled to the requested relief of transfer of the <astrogamer.net> domain name.
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.”)
Complainant asserts rights in the ASTRO mark through its registration of the mark with the USPTO (e.g. Reg. No. 4,933,259, registered April 5, 2016). Registration of a mark with the USPTO is sufficient to demonstrate rights in the mark per Policy ¶ 4(a)(i). See DIRECTV, LLC v. The Pearline Group, FA 1818749 (Forum Dec. 30, 2018) (“Complainant’s ownership of a USPTO registration for DIRECTV demonstrate its rights in such mark for the purposes of Policy ¶ 4(a)(i).”); Nintendo of America Inc. v. lin amy, FA 1818485 (Forum Dec. 24, 2018) ("Complainant’s ownership a USPTO trademark registration for the NINTENDO mark evidences Complainant’s rights in such mark for the purposes of Policy ¶ 4(a)(i).”). The Panel finds that Complainant has demonstrated rights in the ASTRO mark per Policy ¶ 4(a)(i).
Complainant argues Respondent’s <astrogamer.net> domain name is identical or confusingly similar to Complainant’s ASTRO mark as it contains the ASTRO mark in its entirety and merely adds the generic term “gamer” and the “.net” gTLD. The addition of a generic or descriptive term and a gTLD fails to sufficiently distinguish a disputed domain name from a mark per Policy ¶ 4(a)(i). See Microsoft Corporation v. Thong Tran Thanh, FA 1653187 (Forum Jan. 21, 2016) (determining that confusing similarity exists where [a disputed domain name] contains Complainant’s entire mark and differs only by the addition of a generic or descriptive phrase and top-level domain as the differences between the domain name and its contained trademark are insufficient to differentiate one from the other for the purposes of the Policy); see also Dell Inc. v. pushpender chauhan, FA 1784548 (Forum June 11, 2018) (“Respondent merely adds the term ‘supports’ and a ‘.org’ gTLD to the DELL mark. Thus, the Panel finds Respondent’s disputed domain name is confusingly similar to Complainant’s DELL mark per Policy ¶ 4(a)(i).”). The Panel finds that the domain name is confusingly similar to Complainant’s mark per Policy ¶ 4(a)(i).
Complainant has proved this element
Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), then the burden shifts to Respondent to show it does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“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”). The Panel finds that Complainant has made a prima facie case.
Complainant contends Respondent lacks rights or legitimate interests in the <astrogamer.net> domain name as Respondent does not conduct any business under the ASTRO mark nor has Complainant authorized or licensed to Respondent any rights in the ASTRO mark. WHOIS information may be used to determine whether a respondent is commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Chevron Intellectual Property LLC v. Fred Wallace, FA1506001626022 (Forum July 27, 2015) (finding that the respondent was not commonly known by the <chevron-europe.com> domain name under Policy ¶ 4(c)(ii), as the WHOIS information named “Fred Wallace” as registrant of the disputed domain name); see also Amazon Technologies, Inc. v. LY Ta, FA 1789106 (Forum June 21, 2018) (concluding a respondent has no rights or legitimate interests in a disputed domain name where the complainant asserted it did not authorize the respondent to use the mark, and the relevant WHOIS information indicated the respondent is not commonly known by the domain name). Additionally, lack of authorization to use a complainant’s mark may indicate that the respondent is not commonly known by the disputed domain name. See Emerson Electric Co. v. golden humble / golden globals, FA 1787128 (Forum June 11, 2018) (“lack of evidence in the record to indicate a respondent is authorized to use [the] complainant’s mark may support a finding that [the] respondent does not have rights or legitimate interests in the disputed domain name per Policy ¶ 4(c)(ii)”). The WHOIS information for the disputed domain name lists the registrant as “Michael W Scearce,” and there is no other evidence to suggest that Respondent was authorized to use the ASTRO mark. The Panel finds Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii).
Complainant argues that 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 as Respondent’s website prominently displays Complainant’s trademarks, copyrighted material, and other information to cause Internet users to mistakenly believe Respondent’s Website is affiliated with Complainant, when it is not. Where a respondent’s only use of a disputed domain name is to pass of the website as that of a complainant, the Panel may find the respondent fails to make a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii). See ShipChain, Inc. v. 谢东东 / 谢东东, FA 1785189 (Forum June 21, 2018) (“The resolving webpages between Complainant’s and Respondent’s websites are virtually the same. Respondent’s use of the disputed domain name does not confer rights and legitimate interests under Policy ¶¶4(c)(i) and (iii).”); Ripple Labs Inc. v. NGYEN NGOC PHUONG THAO, FA 1741737 (Forum Aug. 21, 2017) (“Respondent uses the [disputed] domain name to divert Internet users to Respondent’s website… confusing them into believing that some sort of affiliation exists between it and Complainant… [which] is neither a bona fide offering of goods or services under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).”). Complainant provides screenshots of Respondent’s website as well as Complainant's own website, highlighting how the website is nearly identical to Complaint’s website. The Panel finds that Respondent fails to make a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii) and Respondent has no rights or legitimate interests in respect of the domain name.
Complainant has proved this element
Complainant contends Respondent registered and uses the <astrogamer.net> domain name in bad faith because Respondent uses the disputed domain name to disrupt Complaint’s business by purposely deceiving consumers as to the source of Respondent’s Website. Registration of a confusingly similar domain name with the intent to disrupt business by passing off as a complainant to cause customer confusion can evince bad faith registration and use per Policy ¶ 4(b)(iii). See Fitness International, LLC v. ALISTAIR SWODECK / VICTOR AND MURRAY, FA1506001623644 (Forum July 9, 2015) (“Respondent uses the at-issue domain name to operate a website that purports to offer health club related services such as fitness experts, fitness models, fitness venues, exercise programs, and personal training, all of which are the exact services offered by Complainant. Doing so causes customer confusion, disrupts Complainant’s business, and demonstrates Respondent’s bad faith registration and use of the domain name pursuant to Policy ¶ 4(b)(iii).”). Complainant provides screenshots of the resolving webpage of the disputed domain name which Complainant argues looks nearly identical to Complaint’s website. This is evidence Respondent registered and uses the disputed domain name in bad faith per Policy ¶ 4(b)(iii).
Complainant argues Respondent registered the <astrogamer.net> domain name with actual and constructive knowledge of Complainant’s rights in the ASTRO mark based on Respondent’s use of the ASTRO mark. Use of a mark to divert Internet traffic to a disputed domain name can demonstrate actual knowledge of a complainant’s rights in a mark at registration and show bad faith per Policy ¶ 4(a)(iii). See iFinex Inc. v. xu shuaiwei, FA 1760249 (Forum Jan. 1, 2018) (“Respondent’s prior knowledge is evident from the notoriety of Complainant’s BITFINEX trademark as well as from Respondent’s use of its trademark laden domain name to direct internet traffic to a website which is a direct competitor of Complainant”); see also Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum Feb. 6, 2014) (“The Panel notes that although the UDRP does not recognize ‘constructive notice’ as sufficient grounds for finding Policy ¶ 4(a)(iii) bad faith, the Panel here finds actual knowledge through the name used for the domain and the use made of it.”). Complainant argues that Respondent’s use of the ASTRO mark demonstrates Respondent’s actual knowledge of Complainant’s rights in the mark prior to registering the disputed domain name. The Panel finds Respondent had actual knowledge of Complainant’s mark and registered and uses the disputed domain name in bad faith per Policy ¶ 4(a)(iii).
Complainant has proved this element.
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is ORDERED that the <astrogamer.net> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Karl V. Fink (Ret.) Panelist
October 24, 2020
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