For Your Ease Only, Inc. v. Tim Ordonez
Claim Number: FA2111001972597
Complainant is For Your Ease Only, Inc. (“Complainant”), represented by William Schultz of Merchant & Gould, P.C., Minnesota, USA. Respondent is Tim Ordonez (“Respondent”), Nevada, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <lorigreinernft.com>, registered with GoDaddy.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.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on November 9, 2021; the Forum received payment on November 9, 2021.
On November 10, 2021, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <lorigreinernft.com> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.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 November 11, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 2, 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@lorigreinernft.com. Also on November 11, 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 December 8, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Richard Hill 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 states that it was founded in 1996 by entrepreneur Lori Greiner. Ms. Greiner, the President and CEO of Complainant, has created/invented more than 800 products and holds over 120 United States and international patents. In 1996, Ms. Lori Greiner invented her first product, a clear plastic jewelry organizer that was sold in J.C. Penny stores and on the Home Shopping Network. That product was an instant success, making over a million dollars in sales. Numerous other on-line stores now carry the LORI GREINER brand products designed by Lori Greiner. Known as “The Warm Blooded Shark” on ABC’s television show Shark Tank, Lori Greiner is widely known and respected as an inventor and entrepreneur. Additionally, Ms. Greiner has been featured in Entrepreneur magazine, The New York Times, InStyle magazine, Inc. Ms. Greiner’s website at <www.lorigreiner.com> shows various other speaking and entertainment engagements, including her YouTube show Bed Talks with Lori. Her name has been used in connection with the sale of Complainant’s products since 1996. Complainant asserts rights in the LORI GREINER mark through its registration of the mark in United States in 2009.
Complainant alleges that the disputed domain name is identical or confusingly similar to its LORI GREINER mark, as it incorporates the mark in its entirety, merely adding the letters “nft” and the “.com” generic top-level domain (“gTLD”).
According to Complainant¸ Respondent has no rights or legitimate interests in the disputed domain name. Complainant has not authorized or licensed Respondent to use the LORI GREINER mark, nor is Respondent commonly known by the disputed domain name. Further, Respondent is not using the disputed domain name in connection with a bona fide offering of goods and services or legitimate noncommercial or fair use as the resolving website displays pay-per-click advertising links to competing products. The resolving website has no substantive content apart from the advertisements.
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith. Respondent disrupts Complainant’s business by confusing and redirecting users to a website that only presented users with advertisements to Complainant’s competitors. Further, Respondent had actual notice of Complainant’s rights, evidenced by the use and notoriety of the mark. Finally, Respondent’s resolving website is inactive because it has no substantive content other than advertisements.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has rights in the mark LORI GREINER dating back to at least 2009 and uses it to market a range of products.
The disputed domain name was registered in 2021.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
Respondent is using the disputed domain name to resolve to a web site that contains advertising to products, some of which compete with those of Complainant.
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 disputed domain name incorporates Complainant’s mark in its entirety, merely adding the “nft” letters and the “.com” gTLD. Past panels have found that merely adding letters and a gTLD to a mark is not sufficient to differentiate the disputed domain name from the mark. See Bittrex, Inc. v. Sergey Valerievich Kireev / Kireev, FA 1784651 (Forum June 5, 2018) (holding that the domain name consists of the BITTREX mark and adds “the letters ‘btc’ and the gTLD .com which do not distinguish the Domain Name from Complainant’s mark.”); see also Home Depot Product Authority, LLC v. Angelo Kioussis, FA 1784554 (Forum June 4, 2018) (“The domain name contains the mark in its entirety, with only the addition of the generic letters ‘sb’ and the digits ‘2018,’ plus the generic Top Level Domain (“gTLD”) ‘.com.’ These alterations of the mark, made in forming the domain name, do not save it from the realm of confusing similarity under the standards of the Policy.”). The Panel therefore finds that the <lorigreinernft.com> domain name is confusingly similar to Complainant’s LORI GREINER mark under Policy ¶ 4(a)(i).
Complainant has not licensed or otherwise authorized Respondent to use its mark. Respondent commonly known by the disputed domain name: the Panel may reference WHOIS information to determine whether a Respondent is commonly known by the disputed domain name. See Amazon Technologies, Inc. v. Suzen Khan / Nancy Jain / Andrew Stanzy, FA 1741129 (Forum Aug. 16, 2017) (finding that respondent had no rights or legitimate interests in the disputed domain names when the identifying information provided by WHOIS was unrelated to the domain names or respondent’s use of the same). Here, the WHOIS information shows that the registrant is known as “Tim Ordonez”. Thus the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).
The resolving website displays pay-per-click advertising links to competing products. This is not a bona fide offering of goods and services or legitimate noncommercial or fair use for purposes of the Policy. See Zillow, Inc. v. Domain Admin / Whois Privacy Corp., FA 1784943 (Forum June 7, 2018) (“the <trulia.co> domain name resolves to a variety of pages, including real-estate-related advertising and to the website of a direct competitor of the Complainant in the online real estate field. Therefore, the Panel agrees with Complainant and finds that Respondent does not have rights or legitimate interests in the domain name per Policy ¶¶ 4(c)(i) or (iii).”); see also 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.”). The Panel therefore finds that Respondent fails to use the disputed domain name to make a bona fide offering of goods and services or legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii). And the Panel finds that Respondent does not have rights or legitimate interests in the disputed domain name.
Complainant alleges that Respondent fails to make an active use of the disputed domain name. However, such is not the case: as already noted, Respondent uses the disputed domain name to advertise competing products.
Respondent (who did not reply to Complainant’s contentions) has not presented any plausible explanation for its use of Complainant’s mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain name.
Indeed, as already noted, Respondent uses the disputed domain name to disrupt Complainant’s business and attract users for commercial gain through the use of advertising-party links. Panels have found such a use of a domain name to constitute bad faith under Policy ¶ 4(b)(iv) and/or (iii). See Capital One Financial Corp. v. Above.com Domain Privacy / Above.com Domain Privacy, FA1501001598657 (Forum Feb. 20, 2015) (“This Panel agrees that Respondent’s use as shown in Exhibits C-D illustrates that Respondent here seeks commercial gain through a likelihood of confusion, as competing hyperlinks have been found to establish evidence of intent to seek commercial gain through referral fees, and thus demonstrates bad faith registration under Policy ¶ 4(b)(iv).”). Bad faith has been found even where a respondent has commercially benefited through links unrelated to a complainant’s mark. See Bank of Am. Fork v. Shen, FA 699645 (Forum June 11, 2006) (holding that the respondent’s previous use of the <bankofamericanfork.com> domain name to maintain a web directory was evidence of bad faith because the respondent presumably commercially benefited by receiving click-through fees for diverting Internet users to unrelated third-party websites); see also PopSockets LLC v. san mao, FA 1740903 (Forum Aug. 27, 2017) (finding disruption of a complainant’s business which was not directly commercial competitive behavior was nonetheless sufficient to establish bad faith registration and use per Policy ¶ 4(b)(iii)); see also Dovetail Ventures, LLC v. Klayton Thorpe, FA1506001625786 (Forum Aug. 2, 2015) (holding that the respondent had acted in bad faith under Policy ¶ 4(b)(iv), where it used the disputed domain name to host a variety of hyperlinks, unrelated to the complainant’s business, through which the respondent presumably commercially gained). Thus, the Panel finds bad faith registration and use under Policy ¶¶ 4(b)(iii) and/or (iv).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <lorigreinernft.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: December 8, 2021
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