HADASSAH, THE WOMEN’S ZIONIST ORGANIZATION OF AMERICA, INC. v. Ezana Raswork / Africa 118
Claim Number: FA2012001925168
Complainant is HADASSAH, THE WOMEN’S ZIONIST ORGANIZATION OF AMERICA, INC. (“Complainant”), represented by Timothy M. Kenny of Norton Rose Fulbright US LLP, Minnesota, USA. Respondent is Ezana Raswork / Africa 118 (“Respondent”), Canada.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <hadassahbrand.com> (the “disputed domain name”), registered with PDR Ltd. d/b/a PublicDomainRegistry.com (the “Registrar”).
The undersigned certifies that she has acted independently and impartially and to the best of her knowledge has no known conflict in serving as Panelist in this proceeding.
Lynda M. Braun as Panelist.
Complainant submitted a Complaint to the Forum electronically on December 15, 2020; the Forum received payment on December 15, 2020.
On December 17, 2020, the Registrar confirmed by e-mail to the Forum that the <hadassahbrand.com> domain name is registered with PDR Ltd. d/b/a PublicDomainRegistry.com and that Respondent is the current registrant of the disputed domain name. The Registrar has verified that Respondent is bound by its 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 18, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 7, 2021 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@hadassahbrand.com. Also on December 18, 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 January 13, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Lynda M. Braun 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 disputed domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant is a nonprofit organization that is the largest Jewish women’s Zionist organization with approximately 300,000 members and supporters worldwide. In addition, Complainant is the source of a wide variety of goods and services, with a commitment to women’s health and well-being, to Israel, and to Jewish values. Complainant owns numerous trademarks in the United States and other jurisdictions worldwide. For example, Complainant has rights in the HADASSAH trademark based on registration with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 2,629,782, registered on October 8, 2002) (hereinafter referred to as the “HADASSAH Mark”).
Complainant contends that the disputed domain name is confusingly similar to Complainant’s HADASSAH Mark because although it adds the generic term “brand” and the “.com” generic Top-Level Domain (“gTLD”) to Complainant’s HADASSAH Mark, this does not prevent confusing similarity under the Policy. Complainant further contends that Respondent has no rights or legitimate interests in respect of the disputed domain name as Respondent is not commonly known by the disputed domain name, Complainant has not authorized, licensed, or otherwise permitted Respondent to use the HADASSAH Mark, and Respondent has no relationship, affiliation, connection, or association with Complainant. Finally, the Complainant claims that the disputed domain name was registered and is being used in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that Complainant owns trademarks in the HADASSAH Mark in the United States and other jurisdictions worldwide. The Panel further concludes that the disputed domain name is confusingly similar to Complainant’s HADASSAH Mark, that Respondent lacks rights or legitimate interests in respect of the disputed domain name, and that Respondent registered and is using the disputed domain name in bad faith.
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 disputed domain name should be cancelled or transferred:
(1) the disputed 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 disputed domain name; and
(3) the disputed 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 concludes that the disputed domain name is confusingly similar to the HADASSAH Mark under Policy ¶ 4(a)(i).
Accordingly, the Panel finds that Policy ¶ 4(a)(i) has been established by Complainant.
The Panel finds that Respondent has no rights or legitimate interests in the disputed domain name. Under the Policy, Complainant is required to make out a prima facie case that Respondent lacks rights or legitimate interests in the disputed domain name. Once such a prima facie case is made, Respondent carries the burden of demonstrating rights or legitimate interests in the disputed domain name. See 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”).
In this case, Respondent did not carry its burden to come forward with evidence of its rights or legitimate interests in the disputed domain name as it did not respond to the Complaint, but given the facts of this case, the Panel finds that Respondent would have been hard-pressed to furnish availing arguments had it chosen to respond:
Specifically, Respondent is not commonly known by the disputed domain name, Complainant has not authorized, licensed, or otherwise permitted Respondent to use the HADASSAH Mark and Respondent has no relationship, affiliation, connection, endorsement or association with Complainant.
Furthermore, Respondent fails to use the disputed domain name in connection with a bona fide offering of goods or services, or in connection with a legitimate noncommercial or fair use because the disputed domain name resolves to a website that offers competing goods for sale.
Accordingly, the Panel finds that Policy ¶ 4(a)(ii) has been established by Complainant.
The Panel concludes that Respondent registered and is using the disputed domain name in bad faith.
First, Respondent uses the disputed domain name to resolve to a website that competes with Complainant. Using a confusingly similar domain name to divert Internet users to a respondent’s competing website demonstrates bad faith per Policy ¶¶ 4(b)(iii) and (iv). See LoanDepot.com, LLC v. Kaolee (Kay) Vang-Thao, FA1762308 (Forum Jan. 9, 2018) (finding that Respondent’s use of the disputed domain name to offer competing loan services disrupts Complainant’s business under Policy ¶ 4(b)(iii)). Here, Respondent offers items of jewelry, bags, accessories, and footwear on its website while displaying the HADASSAH Mark along with those competing goods. Such conduct is emblematic of bad faith.
Moreover, the use of a disputed domain name to intentionally attempt to attract Internet users to a respondent’s website or online location by creating a likelihood of confusion or a false association with a complainant’s mark as to the source, sponsorship, affiliation or endorsement of the registrant’s website or online location demonstrates registration and use in bad faith. See AOL LLC v. iTech Ent, LLC, FA 726227 (Forum July 21, 2006).
Finally, Respondent did not respond to the cease and desist letters demanding transfer of the disputed domain name sent by Complainant on September 2 and October 13, 2020. Previous UDRP panels have held that failure to respond to a cease and desist letter may be considered a factor in finding bad faith registration and use of a disputed domain name. See Encyclopaedia Britannica, Inc. v. John Zuccarini and The Cupcake Patrol a/ka Country Walk a/k/a Cupcake Party, WIPO Case No. D2000-0330. Thus, the Panel concludes that based on the totality of the circumstances, Respondent registered and used the disputed domain name in bad faith.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <hadassahbrand.com> disputed domain name be TRANSFERRED from Respondent to Complainant.
Lynda M. Braun, Panelist
Dated: January 27, 2021
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page