Nextbite, LLC v. Jon Register
Claim Number: FA2107001955551
Complainant is Nextbite, LLC (“Complainant”), represented by Michael O’Brien, California, USA. Respondent is Jon Register (“Respondent”), Florida, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <nextbite.us>, 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.
Alan L. Limbury, as Panelist.
Complainant submitted a Complaint to the Forum electronically on July 16, 2021. The Forum received payment on July 16, 2021.
On July 19, 2021, Google LLC confirmed by e-mail to the Forum that the <nextbite.us> 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 the U.S. Department of Commerce’s usTLD Dispute Resolution Policy (the “Policy”).
On July 26, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 16, 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@nextbite.us. Also on July 26, 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 August 19, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Alan L. Limbury 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 to the usTLD Dispute Resolution Policy (“Rules”). Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the usTLD Policy, usTLD 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, Nextbite, LLC, provides consulting services in the delivery-only restaurant industry. Complainant has rights in the NEXTBITE mark based on registration of the mark with the United States Patent and Trademark Office (“USPTO”). Respondent’s <nextbite.us> domain name is confusingly similar to Complainant’s mark.
Respondent is the Managing Member of Ghostaurant, LLC, which uses the service mark VIRTURANT to sell services to enable a user to “open a virtual restaurant”. Respondent lacks rights and legitimate interests in the <nextbite.us> domain name as he is not commonly known by the domain name and Complainant has not licensed or permitted Respondent to use the NEXTBITE mark. Respondent does not use the domain name for any bona fide offering of goods or services, nor for any legitimate noncommercial or fair use. Instead, the domain name redirects users to Respondent’s own competing website.
Respondent registered or uses the <nextbite.us> domain name in bad faith. Respondent is engaging in a pattern of bad faith registration based on Respondent’s registration of ten domain names that infringe Complainant’s trademark, including the <nextbite.us> domain name. Respondent sent a text message to the CEO of Complainant which displayed an image of the Virturant website, boasting that Respondent had registered those domain names containing the NEXTBITE mark. Respondent uses the <nextbite.us> domain name intentionally to attract Internet users to Respondent’s own competing Virturant website for Respondent’s commercial gain.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has established all the elements entitling it to relief.
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 or is being used in bad faith.
Given the similarity between the Uniform Domain Name Dispute Resolution Policy (“UDRP”) and the usTLD Policy, the Panel will draw upon UDRP precedent as applicable in rendering its decision.
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 has shown that it has rights in the NEXTBITE service mark based on registration of the mark with the USPTO (e.g., Reg. No. 6,030,397 registered on April 7, 2020 with claimed first use in commerce in August 2019). The Panel finds Respondent’s <nextbite.us> domain name to be identical to Complainant’s mark since it comprises Complainant’s entire mark and the inconsequential country code top level domain (“ccTLD”) “.us”, which may be ignored.
Complainant has established this element.
Paragraph 4(c) of the Policy sets out four illustrative circumstances as examples which, if established by Respondent, shall demonstrate rights to or legitimate interests in a disputed domain name for the purposes of paragraph 4(a)(ii) of the Policy, i.e.
(i) Respondent is the owner or beneficiary of a trade or service mark that is identical to the domain name;
(ii) Before any notice to Respondent of the dispute, Respondent’s use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services;
(iii) Respondent (as an individual, business, or other organization) has been commonly known by the domain name, even if Respondent has acquired no trademark or service mark rights; or
(iv) Respondent is making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
The <nextbite.us> domain name was registered on October 17, 2020, several months after Complainant’s trademark registration. Complainant asserts that the domain name resolves to Respondent’s competing website but Complainant has not provided any screenshots. However, the text message sent by Respondent to Complainant’s CEO, beginning “Pick a card, any card…”, lists ten domain names which incorporate Complainant’s NEXTBITE mark, including the <nextbite.us> domain name, and displays an image of the Virturant website, which offers competing services in the delivery-only restaurant industry.
These circumstances, coupled with Complainant’s assertions, are sufficient to constitute a prima facie showing of absence of rights or legitimate interests in respect of the domain name on the part of Respondent. The evidentiary burden therefore shifts to Respondent to show that it does have rights or legitimate interests in the domain name. See Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014). Respondent has made no attempt to do so.
In the circumstances of this case, the Panel finds that Respondent has no rights or legitimate interests in respect of the domain name.
Complainant has established this element.
Registration or Use in Bad Faith
Paragraph 4(b) of the Policy sets out four illustrative circumstances, which, though not exclusive, shall be evidence of the registration or use of the domain name in bad faith for purposes of paragraph 4(a)(iii) [sic] of the Policy, including:
(ii) Respondent has registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name;
(iii) Respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
Having regard to the circumstances set out above in relation to the second element, the Panel is satisfied that Respondent was well aware of Complainant’s NEXTBITE mark when registering the <nextbite.us> domain name and has registered or used the domain name in bad faith in the circumstances set out in each of Paragraphs 4(b)(ii), (iii) and (iv) of the Policy.
Complainant has established this element.
DECISION
Complainant having established all three elements required under the usTLD Dispute Resolution Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <nextbite.us> domain name be TRANSFERRED from Respondent to Complainant.
Alan L. Limbury, Panelist
Dated: August 20, 2021
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