Goal Zero LLC v. Bejgane Marwane
Claim Number: FA2108001960169
Complainant is Goal Zero LLC (“Complainant”), represented by Caitlin Costello, Texas, USA. Respondent is Bejgane Marwane (“Respondent”), France.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <goalzero-antilles.com>, <goalzero-caribbean.com> and <goalzero-guyane.com>, registered with OVH sas.
PANEL
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 in English on August 18, 2021. The Forum received payment on August 18, 2021.
On August 19, 2021, OVH sas confirmed by e-mail to the Forum that the <goalzero-antilles.com>, <goalzero-caribbean.com> and <goalzero-guyane.com> domain names are registered with OVH sas and that Respondent is the current registrant of the names. OVH sas has verified that Respondent is bound by the OVH sas registration agreement, which is in French, 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”).
In response to a deficiency notification from the Forum, Complainant submitted an Amended Complaint in both English and French on August 23, 2021.
On August 24, 2021, the Forum served the English and French Amended Complaint and all Annexes, including an English and French Written Notice of the Complaint, setting a deadline of September 13, 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@goalzero-antilles.com, postmaster@goalzero-caribbean.com, postmaster@goalzero-guyane.com. Also on August 24, 2021, the English and French 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.
On August 25, 2021, Respondent communicated informally by email to the Forum in English.
Having received no formal response from Respondent by September 13, 2021, the Forum transmitted to the parties a Notification of Respondent Default.
On September 17, 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 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 names be transferred from Respondent to Complainant.
PRELIMINARY ISSUE: LANGUAGE OF PROCEEDINGS
As noted, the OVH sas registration agreement is in French. Pursuant to Rule 11(a), the language of the proceeding shall be French, unless otherwise determined by the Panel, having regard to the circumstances of the proceeding.
The Panel notes that the <goalzero-antilles.com> and <goalzero-caribbean.com> domain names are in English and the and <goalzero-guyane.com> domain name contains both English and French. The Amended Complaint was filed in both English and French and Respondent corresponded informally with the Forum in English. In the absence of any formal Response, these circumstances satisfy the Panel that Respondent is sufficiently conversant with English to the extent that there would be no undue prejudice to Respondent if English, the language of the Panelist, were the language of the proceeding.
A. Complainant
Complainant is a leading manufacturer of sustainable, portable power solutions with offerings in many countries all over the world, including France. Complainant has rights in the GOAL ZERO mark through its registration of the mark with the United States Patent and Trademark Office (“USPTO”). Respondent’s <goalzero-antilles.com>, <goalzero-caribbean.com> and <goalzero-guyane.com> domain names are confusingly similar to Complainant’s mark.
Respondent has no rights or legitimate interests in the <goalzero-antilles.com>, <goalzero-caribbean.com> and <goalzero-guyane.com> domain names as Respondent is not commonly known by the domain names nor has Respondent been licensed, authorized, or otherwise permitted by Complainant to use Complainant’s mark. Furthermore, Respondent’s use is not a bona fide offering of goods or services, nor a legitimate noncommercial or fair use. Respondent is attempting to pass itself off as Complainant with the <goalzero-antilles.com> domain name to further a phishing scheme. Respondent lacks rights and legitimate interests in the <goalzero-caribbean.com> and <goalzero-guyane.com> domain names because Respondent is passively holding these domain names.
Respondent registered and is using the <goalzero-antilles.com>, <goalzero-caribbean.com> and <goalzero-guyane.com> domain names in bad faith. Specifically, Respondent is attempting to pass itself off as Complainant with the <goalzero-antilles.com> domain name and is passively holding the <goalzero-caribbean.com> and <goalzero-guyane.com> domain names. Finally, Respondent had actual or constructive knowledge of Complainant’s GOAL ZERO mark at the time of registration.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has established all the elements entitling it to relief.
Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that the domain names should be cancelled or transferred:
(1) the domain names registered by Respondent are 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 names; and
(3) the domain names have been registered and are 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 as 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 GOAL ZERO mark through numerous registrations of the mark, including with the USPTO (e.g., Reg. No. 4,564,422, registered July 8, 2014). The Panel finds Respondent’s <goalzero-antilles.com>, <goalzero-caribbean.com> and <goalzero-guyane.com> domain names to be confusingly similar to Complainant’s mark as Respondent merely adds to the mark hyphens and geographic terms, which do nothing to distinguish the domain names from the mark, and the inconsequential “.com” generic top-level domain (“gTLD”), which may be ignored.
Complainant has established this element.
Paragraph 4(c) of the Policy sets out three illustrative circumstances as examples which, if established by Respondent, shall demonstrate rights to or legitimate interests in the domain names for purposes of paragraph 4(a)(ii) of the Policy, i.e.
(i) before any notice to Respondent of the dispute, the use by Respondent of, or demonstrable preparations to use, the domain names or names corresponding to the domain names in connection with a bona fide offering of goods or services; or
(ii) Respondent (as an individual, business or other organization) has been commonly known by the domain names, even if Respondent has acquired no trademark or service mark rights; or
(iii) Respondent is making a legitimate noncommercial or fair use of the domain names, without intent for commercial gain to misleadingly divert customers or to tarnish the trademark or service mark at issue.
The <goalzero-antilles.com>, <goalzero-caribbean.com>, and <goalzero-guyane.com> domain names were all registered by Respondent on June 17, 2021, many years after Complainant registered its GOAL ZERO mark. The <goalzero-antilles.com> domain name resolves to a website displaying Complainant’s GOAL ZERO mark; depicting the names and images of some of Complainant’s portable power solution products; and seeking the personal information of Internet users who are invited to login to the platform. The <goalzero-caribbean.com>, and <goalzero-guyane.com> domain names do not resolve to active websites.
These circumstances, together with Complainant’s assertions, are sufficient to constitute a prima facie showing of absence of rights or legitimate interests in respect of the domain names on the part of Respondent. The evidentiary burden therefore shifts to Respondent to show that it does have rights or legitimate interests in the <goalzero-antilles.com>, <goalzero-caribbean.com> and <goalzero-guyane.com> domain names. See Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014). Respondent has made no attempt to do so.
The Panel finds that Respondent has no rights or legitimate interests in respect of the domain names.
Complainant has established this element.
Paragraph 4(b) of the Policy sets out four illustrative circumstances, which, though not exclusive, shall be evidence of the registration and use of the domain names in bad faith for purposes of paragraph 4(a)(iii) of the Policy, i.e.
(i) circumstances indicating that Respondent has registered or acquired the domain names primarily for the purpose of selling, renting or otherwise transferring the domain name registrations to Complainant who is the owner of the trademark or service mark or to a competitor of Complainant, for valuable consideration in excess of Respondent’s documented out-of-pocket costs directly related to the domain names; or
(ii) Respondent has registered the domain names in order to prevent the owner of the trademark or service mark from reflecting the mark in corresponding domain names, provided that Respondent has engaged in a pattern of such conduct;
(iii) Respondent has registered the domain names primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain names, Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website or other on-line location, by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website or location or of a product or service on its website or location.
The circumstances set out above in relation to the second element satisfy the Panel that Respondent was aware of Complainant’s GOAL ZERO mark when Respondent registered the <goalzero-antilles.com>, <goalzero-caribbean.com> and <goalzero-guyane.com> domain names and that Respondent has intentionally attempted to attract, for commercial gain, Internet users to Respondent’s “www.goalzero-antilles.com” website, by creating a likelihood of confusion with Complainant’s mark as to the source of Respondent’s website and of the goods promoted on that website. This demonstrates registration and use of the <goalzero-antilles.com> domain name in bad faith to attract users for commercial gain under Policy ¶ 4(b)(iv).
Further, the fact that all three domain names were registered on the same day leads to the conclusion that Respondent intends to use the <goalzero-caribbean.com> and <goalzero-guyane.com> domain names in the same way as Respondent is using the <goalzero-antilles.com> domain name and therefore registered and is passively holding the <goalzero-caribbean.com> and <goalzero-guyane.com> domain names in bad faith.
Complainant has established this element.
DECISION
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <goalzero-antilles.com>, <goalzero-caribbean.com> and <goalzero-guyane.com> domain names be TRANSFERRED from Respondent to Complainant.
Alan L. Limbury, Panelist
Dated: September 20, 2021
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