Colin LeMahieu v. WhoisGuard, Inc. et al.
Claim Number: FA2010001916803
Complainant: Colin LeMahieu of Austin, Texas, United States of America.
Complainant Representative: Envision IP LLC of New York, New York, United States of America.
Respondent: WhoisGuard Protected / WhoisGuard, Inc. of Panama Panama, International, PA.
REGISTRY and REGISTRAR
Registry: Public Interest Registry
Registrar: NameCheap, Inc.
The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Examiner in this proceeding.
Alan L. Limbury, as Examiner.
Complainant submitted: October 13, 2020
Commencement: October 14, 2020
Default Date: October 29, 2020
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").
Complainant requests that the domain name be suspended for the life of the registration.
Clear and convincing evidence.
Through a website at “www.nano.org”, Complainant provides digital currency under the registered trademark NANO.
Even though Respondent has defaulted, URS Procedure 1.2.6, requires a 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:
(i) the registered domain name is identical or confusingly similar to a word mark for which the Complainant holds a valid national or regional registration and that is in current use; or that has been validated through court proceedings; or that is specifically protected by a statute or treaty in effect at the time the URS complaint is filed;
(ii) the Registrant has no legitimate right or interest to the domain name; and
(iii) the domain name was registered and is being used in bad faith.
Rights, identity or confusing similarity
Complainant is the registrant of European Union International Trademark NANO, Registration No. 1401527, registered on October 19, 2018 for "Virtual currency, namely, a peer-to-peer digital currency, incorporating cryptographic protocols, operating through the Internet, and used as a method of payment for goods and services" and United Kingdom Trademark NANO, Registration No. UK3275038 registered on March 9, 2018 for "Crypto currency; digital currency". The NANO mark is in current use on Complainant’s website.
The Examiner finds that the <nano-live.org> domain name is confusingly similar to Complainant’s NANO mark. The domain name contains the NANO mark in its entirety, adding only a hyphen, the dictionary term “live” and the generic top-level domain (“gTLD”) “.org.” These additions are not sufficient to distinguish a domain name from an incorporated mark in a URS 1.2.6.1 analysis.
Legitimacy
Complainant claims rights in the NANO mark which precede Respondent’s registration of the domain name and asserts that Respondent is attempting to pass itself off as Complainant in hopes of stealing virtual currency from Internet users believing that they will be rewarded for participating in Respondent's fraudulent scheme.
These assertions, coupled with the evidence of the use to which the domain name is being put, establish a prima facie case of absence of rights and legitimate interests in the domain name on the part of Respondent. In the absence of a Response, there is no evidence to establish that Respondent has any rights or legitimate interests in respect of the domain name.
Bad faith
It is clear that Respondent was aware of Complainant’s NANO mark when registering the domain name and that, by using the domain name, Respondent has intentionally attempted, by masquerading as Complainant, to attract for commercial gain, Internet users to Respondent’s web site by creating a likelihood of confusion with Complainant’s NANO mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s web site and of the products or services on that web site. Accordingly, the Examiner is satisfied that the domain name was registered and is being used in bad faith.
After reviewing the Complainant’s 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 be SUSPENDED for the duration of the registration:
<nano-live.org>.
Alan L. Limbury, Examiner
Dated: October 30, 2020
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