Steel Warrior Technology LLC v. Sander Cry
Claim Number: FA2108001958338
Complainant is Steel Warrior Technology LLC ("Complainant"), represented by Katherine Califa of Foley & Lardner LLP, District of Columbia, USA. Respondent is Sander Cry ("Respondent"), Ukraine.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <hemp-bombs.com>, registered with 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 Panelist in this proceeding.
David E. Sorkin as Panelist.
Complainant submitted a Complaint to the Forum electronically on August 5, 2021; the Forum received payment on August 5, 2021.
On August 6, 2021, NameCheap, Inc. confirmed by email to the Forum that the <hemp-bombs.com> domain name is registered with NameCheap, Inc. and that Respondent is the current registrant of the name. NameCheap, Inc. has verified that Respondent is bound by the NameCheap, Inc. 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 August 9, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 30, 2021 by which Respondent could file a Response to the Complaint, via email to all entities and persons listed on Respondent's registration as technical, administrative, and billing contacts, and to postmaster@hemp-bombs.com. Also on August 9, 2021, the Written Notice of the Complaint, notifying Respondent of the email 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 September 3, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed David E. Sorkin 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 is a United States-based manufacturer of consumer products containing natural plant extracts and botanicals. Since at least as early as 2016, Complainant has used HEMP BOMBS in connection with its goods and services, including a website at <hempbombs.com> that provides information about CBD and related products. Complainant owns a United States trademark registration for HEMP BOMBS in standard character form. (The trademark application was filed in April 2018, based upon a first use date of August 2016, and the registration issued in February 2020.)
The disputed domain name <hemp-bombs.com> was registered via a privacy registration service in September 2019. It is being used for a website that, Complainant alleges, represents an effort to pass off as Complainant. The site promotes CBD-related goods and services that are similar to or compete directly with those offered by Complainant, and includes information about third-party CBD products and brands, including HEMP BOMBS, for which it displays Complainant's logo and awards a "brand rating" of 4 out of 5 points. Complainant states further that Respondent is not commonly known by the disputed domain name, is not a licensee or affiliate of Complainant, and is not authorized to use Complainant's mark.
Complainant contends on the above grounds that the disputed domain name <hemp-bombs.com> is essentially identical and confusingly similar to its HEMP BOMBS mark; that Respondent lacks rights or legitimate interests in the disputed domain name; and 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 the disputed domain name is identical to a mark in which Complainant has rights; that Respondent lacks rights or legitimate interests in respect of the disputed domain name; and that the disputed domain name was registered and is being used 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 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 Overview of WIPO Panel Views on Selected UDRP Questions, § 4.3 (3d ed. 2017), available at http://www.wipo.int/amc/en/domains/search/overview3.0/; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (dismissing complaint where complainant failed to "produce clear evidence to support its subjective allegations").
The disputed domain name <hemp-bombs.com> incorporates Complainant's registered HEMP BOMBS trademark, substituting a hyphen for the space and appending the ".com" top-level domain. It is thus identical to Complainant's mark for purposes of the Policy. See, e.g., Maruha Nichiro Corp. c/o Shigeru Ito v. Wang XiaoWen, FA 1715376 (Forum Mar. 14, 2017) (finding <maruha-nichiro.com> identical to MARUHA NICHIRO); PSC Management L.P. v. Pruthul S, FA 1065634 (Forum Oct. 15, 2007) (finding <perot-systems.com> identical to PEROT SYSTEMS). The Panel so finds.
Under the Policy, the Complainant must first make a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain name, and then the burden shifts to the Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Productions, Inc. v. Entertainment Commentaries, FA 741828 (Forum Aug. 18, 2006).
The disputed domain name incorporates Complainant's registered mark without authorization, and it is being used for a commercial website that contains content very similar to that of Complainant's website and that promotes products that appear to compete directly with those offered by Complainant. Such use is unlikely to give rise to rights or legitimate interests under the Policy. See, e.g., Boojaa Inc. DBA Otte v. Nguyen Thanh Tung, FA 1941888 (Forum May 13, 2021) (finding lack of rights or interests arising from website passing off as complainant and offering directly competing products for sale).
Complainant has made a prima facie case that Respondent lacks rights and legitimate interests in the domain name, and Respondent has failed to come forward with any evidence of such rights or interests. Accordingly, the Panel finds that Complainant has sustained its burden of proving that Respondent lacks rights or legitimate interests in respect of the disputed domain name.
Finally, Complainant must show that the disputed domain name was registered and is being used in bad faith. Under paragraph 4(b)(iii) of the Policy, bad faith may be shown by evidence that Respondent registered the disputed domain name "primarily for the purpose of disrupting the business of a competitor." Under paragraph 4(b)(iv), bad faith may be shown by evidence that "by using the domain name, [Respondent] intentionally attempted to attract, for commercial gain, Internet users to [Respondent's] web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of [Respondent's] web site or location or of a product or service on [Respondent's] web site or location."
Respondent registered a domain name that is substantially identical to Complainant's registered mark and domain name. The Panel infers, based in part upon the references to Complainant that appear on Respondent's website, that Respondent was aware of Complainant and its mark at all relevant times. Respondent is using the domain name and associated website to pass off as Complainant or, at least, to attract Internet users seeking Complainant, and thereby to promote directly competing products and services. Such conduct is indicative of bad faith registration and use under the Policy. See, e.g., Boojaa Inc. DBA Otte v. Nguyen Thanh Tung, supra (finding bad faith where domain name was used to pass off as complainant and offer competing products); Sub-Zero, Inc. v. Armando Perez / Grupo Servi-Tec, FA 1702432 (Forum Dec. 12, 2016) (finding bad faith where domain name incorporating mark was used for similar website promoting competing services). The Panel so finds.
Having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <hemp-bombs.com> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: September 6, 2021
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