K. HOV IP, II, Inc. v. Yabani Eze / Sugarcane Internet Nigeria Limited
Claim Number: FA2102001933624
Complainant is K. HOV IP, II, Inc. (“Complainant”), represented by Christian Marcelo of Perkins Coie LLP, Washington, USA. Respondent is Yabani Eze / Sugarcane Internet Nigeria Limited (“Respondent”), Nigeria.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <khovportal.co>, registered with Sav.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 February 25, 2021; the Forum received payment on February 25, 2021.
On March 4, 2021, Sav.com, LLC confirmed by e-mail to the Forum that the <khovportal.co> domain name is registered with Sav.com, LLC and that Respondent is the current registrant of the name. Sav.com, LLC has verified that Respondent is bound by the Sav.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 March 8, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 29, 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@khovportal.co. Also on March 8, 2021, 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 April 2, 2021 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, K. HOV II, IP, Inc., is a nationally recognized homebuilder operating in consumer markets in 14 states within the United States.
Since 1997, Complainant uses its KHOV mark in connection with real estate development and homebuilding services.
It registered the KHOV mark with the United States Patent and Trade Office (USPTO).
The at-issue domain name, <kohvportal.co>, is identical or confusingly similar because it wholly incorporates Complainant’s KHOV mark adding a generic term, “portal”, and a country-code top-level domain (“ccTLD”), “.co,” to form a domain name.
Respondent has no rights or legitimate interests in the at-issue domain name because Respondent is not authorized to use Complainant’s KHOV mark and is not commonly known by the at-issue domain name. Respondent is not making a bona fide offering of goods or services nor a legitimate noncommercial or fair use because the at-issue domain name addresses a pay-per-click site linking to third party advertisements some of which may directly compete with Complainant. Respondent further lacks rights or legitimate interests because Respondent is offering the domain name for sale.
Respondent registered or used the domain name in bad faith. Respondent offered the at-issue domain name for sale. Additionally, the website addressed by the <khovportal.co> is used to display pay-per-click advertising.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has trademark rights in the KHOV mark.
Respondent has not been authorized to use Complainant’s KHOV trademark.
Respondent registered the at-issue domain name after Complainant acquired rights in <khovportal.co>.
Respondent’s <khovportal.co> domain name addresses a website displaying pay-per-click advertising links.
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 is confusingly similar to a trademark in which Complainant has rights.
Complainant’s USPTO registration for its KHOV mark establishes Complainant’s rights in such mark for the purposes of Policy 4(a)(i). See Haas Automation, Inc. v. Jim Fraser, FA 1627211 (Forum Aug. 4, 2015) (finding that Complainant’s USPTO registrations for the HAAS mark sufficiently demonstrate its rights in the mark under Policy ¶ 4(a)(i)).
The at-issue domain name contains Complainant’s entire KHOV trademark followed by the generic term “portal” with all followed by the country code top level domain name “.co.” The differences between the <khovportal.co> domain name and Complainant’s trademark are insufficient to distinguish the domain name from Complainant’s trademark under Policy ¶ 4(a)(i). Therefore, the Panel finds that <khovportal.co> is confusingly similar to Complainant’s KHOV trademark. See Wiluna Holdings, LLC v. Edna Sherman, FA 1652781 (Forum Jan. 22, 2016) (Finding the addition of a generic term and gTLD is insufficient in distinguishing a disputed domain name from a mark under Policy ¶ 4(a)(i).).
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, absent evidence of Policy ¶ 4(c) circumstances 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.
The WHOIS information for <khovportal.co> shows that “Yabani Eze / Sugarcane Internet Nigeria Limited” is the domain name’s registrant and there is nothing in the record indicating that Respondent is otherwise commonly known by the <khovportal.co> domain name. See Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (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).
Furthermore, Respondent’s <khovportal.co> domain name addresses a website that displays pay-per-click hyperlinks to third party advertising. Respondent’s use of the confusingly similar <khovportal.co> domain name to attract internet users to a website displaying pay-per-click links is not indicative of any bona fide offering of goods or services under Policy ¶¶ 4(c)(i), nor of a non-commercial or fair use of the domain name under Policy ¶¶ 4(c)(iii). See Insomniac Holdings, LLC v. Mark Daniels, FA 1735969 (Forum July 15, 2017) (”Respondent’s use of <edcorlando.xyz> also does not qualify as a bona fide offering… the <edcorlando.xyz> domain name resolves to a site containing pay-per-click hyperlinks and advertisements… Since these kinds of advertisements generate revenue for the holder of a domain name, they cannot be noncommercial; further, they do not qualify as a bona fide offering.”).
Given the forgoing, Complainant satisfies its initial burden under Policy ¶ 4(a)(ii) and conclusively demonstrates Respondent’s lack of rights and lack of interests in respect of the at-issue domain name.
Respondent’s <khovportal.co> domain name was registered and used in bad faith. As discussed below without limitation, bad faith circumstances are present that compel the Panel to conclude that Respondent acted in bad faith pursuant to paragraph 4(a)(iii) of the Policy.
As mentioned above regarding rights and interests, Respondent uses its confusingly similar <khovportal.co> domain name to address a webpage displaying pay-per-click links. Respondent’s use of its <khovportal.co> domain name in this manner disrupts Complainant’s business and confuses consumers as to the source of the domain name for commercial gain. Such use is thus indicative of bad faith under Policy ¶¶ 4(b)(iii) and (iv). See Danbyg Ejendomme A/S v. lb Hansen / guerciotti, FA 1613867 (Forum June 2, 2015) (finding that the respondent registered and used the domain name in bad faith under Policy ¶ 4(b)(iv) where the disputed domain name resolved to a website that offered both competing hyperlinks and hyperlinks unrelated to the complainant’s business); see also, Transamerica Corporation v. Carolina Rodrigues / Fundacion Comercio Electronico, FA 1798316 (Forum Aug. 20, 2018) (“Respondent's use of the domain name to link to competitors of Complainant, presumably generating pay-per-click or referral fees for Respondent, is indicative of bad faith under paragraphs 4(b)(iii) and 4(b)(iv).”).
Additionally, Complainant submits a copy of a webpage from a third-party website listing Respondent’s <khovportal.co> domain name for sale. Offering a confusingly similar at-issue domain name for sale for an amount in excess a respondent’s documented out-of-pocket costs regarding the domain name is indicative of bad faith under Policy ¶ 4(b)(i). However, Complainant’s submission is not authenticated and there is no evidence within the record tending to prove that Respondent initiated, endorsed, or was even aware of the subject online listing. Therefore, without more, the listing has no probative value as to whether or not Respondent ever offered <khovportal.co> for sale.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <khovportal.co> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: April 5, 2021
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