CANarchy Craft Brewery Collective, LLC v. Yabani Eze / Sugarcane Internet Nigeria Limited
Claim Number: FA2010001917613
Complainant is CANarchy Craft Brewery Collective, LLC (“Complainant”), represented by Katherine Froelicher, Colorado, USA. Respondent is Yabani Eze / Sugarcane Internet Nigeria Limited (“Respondent”), Nigeria.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <oskarblues.co> (“Domain Name”), 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.
Nicholas J.T. Smith as Panelist.
Complainant submitted a Complaint to the Forum electronically on October 20, 2020; the Forum received payment on October 20, 2020.
On October 21, 2020, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <oskarblues.co> 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 October 27, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 16, 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@oskarblues.co. Also on October 27, 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 November 20, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Nicholas J.T. Smith 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
The entirety of the factual and legal grounds of the Complaint is set out below. Complainant provides no supporting evidence other than records of its trade mark registration and applications.
“The domain name contains the main portion of our legal name and the portion of that we use on our website, email addresses, product logos, etc.. UDRP Rule 3(b)(ix)(1); UDRP Policy ¶ 4(a)(i).
Respondent makes no use of the domain name, sells no products, has created no content on the site. They are merely squatting.
Respondent has acted in bad faith registering this name as they sell no product,
create no content, do not use in any discernable way shape or form. Domain name has the potential to lead to phishing attempts and other security issues.”
B. Respondent
Respondent failed to submit a Response in this proceeding. The Panel notes that the Domain Name was registered on October 2, 2020, 18 days before the Complaint was filed.
Complainant, having failed to establish that Respondent registered and used the Domain Name in bad faith, has not established all required elements of its claim, and thus its complaint must be denied.
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 failed to meet its burden of proof of bad faith registration and use under Policy ¶ 4(a)(iii), and thus the Panel need not consider the other elements. See Tristar Products, Inc. v. Domain Administrator / Telebrands, Corp., FA 1597388 (Forum Feb. 16, 2015) (“Complainant makes conclusory allegations of bad faith but has adduced no specific evidence that warrants a holding that Respondent proceeded in bad faith at the time it registered the disputed domain name. Mere assertions of bad faith, even when made on multiple grounds, do not prove bad faith.”); see also Chris Pearson v. Domain Admin / Automattic, Inc., FA 1613723 (Forum July 3, 2015) (finding that the complainant could not establish the respondent registered and used the disputed domain name in bad faith because it failed to present evidence that would support such a holding).
Complainant has, in the Complaint, made conclusory assertions of bad faith, noting the Domain Name is unused and could be used for phishing attempts or other security issues. Such allegations are unsupported by any evidence. In particular, although Complainant holds trade mark rights in the OSKAR BLUES BREWERY mark based on registration with the United States Patent and Trademark Office (“USPTO”) (e.g. Reg. No. 3,198,713, registered Jan. 16, 2007), the Complaint contains no evidence (as opposed to assertion) of use of the trade mark or reputation such that Respondent would be aware of Complainant and its trade mark rights.
The Complaint contains no evidence about Respondent and does not even allege conduct that falls under the categories of Policy ¶ 4(b) (noting that a finding of bad faith does not require conduct that falls within the categories). Rather the entirety of the Complainant’s bad faith argument relates to the Respondent’s lack of use of the Domain Name, which is of limited application given that the Complaint was filed 18 days after the Domain Name was registered, and the conclusory argument that the Domain Name “could” be used for bad faith purposes.
The Uniform Domain Name Dispute Resolution Policy, is designed to deal with clear cases of cybersquatting, see IAFT International LLC v. MANAGING DIRECTOR / EUTOPIAN HOLDINGS, FA 1577032 (Forum Oct. 9, 2014) (“The objectives of the Policy are limited -- designed to obviate the need for time-consuming and costly litigation in relatively clear cases of cyber-squatting -- and not intended to thwart every sort of questionable business practice imaginable. ”). The Panel notes in the event that further information arises that suggests the motives of the Respondent in registering or using the Domain Name indicate the Respondent’s awareness of the Complainant’s OSKAR BLUES BREWERY mark, such as use of the Domain Name to capitalise on any (thus far unproved) reputation held by the Complainant or for phishing purposes, there may be grounds to consider a refiled complaint, subject to the applicable criteria.
As reasoned above, the Panel finds that Complainant has failed to prove that the Domain Name was registered and used in bad faith.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be DENIED.
Accordingly, it is Ordered that the <oskarblues.co> domain name REMAIN WITH Respondent.
Nicholas J.T. Smith, Panelist
Dated: November 23, 2020
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