Eight Enterprises, LLC v. Ryan M Shufelt
Claim Number: FA2206002002224
Complainant is Eight Enterprises, LLC (“Complainant”), represented by Sarah P. Harrell of Barnes & Thornburg LLP, Indiana, USA. Respondent is Ryan M Shufelt (“Respondent”), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <8vbc.com>, registered with Sav.com, LLC.
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 on June 28, 2022. The Forum received payment on June 28, 2022.
On June 28, 2022, Sav.com, LLC confirmed by e-mail to the Forum that the <8vbc.com> 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 June 30, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 20, 2022 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@8vbc.com. Also on June 30, 2022, 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 July 26, 2022, 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 name be transferred from Respondent to Complainant.
A. Complainant
Founded in 2015, Complainant is an affiliate of Eight Partners VC, LLC, a venture capital fund that provides services to companies for an array of industries, including information technology infrastructure, smart enterprise, financial services, logistics and healthcare. Complainant has rights in the 8VC mark through registration with the United States Patent and Trademark Office (“USPTO”). Complainant also owns the domain name <8vc.com> where it operates a website which provides information about Complainant’s services, as well as resources for its customers. Respondent’s <8vbc.com> domain name is identical or confusingly similar to Complainant’s 8VC mark and its website.
Respondent lacks rights and legitimate interests in the <8vbc.com> domain name. Respondent is not commonly known by the domain name, nor has Complainant authorized or licensed Respondent to use its 8VC mark in the domain name. Respondent does not use the domain name in connection with any bona fide offering of goods or services, nor a legitimate non-commercial or fair use. Rather, Respondent has used the domain name in connection with a website that redirects visitors to what appears to be a Google Play splash page to download the TikTok app. At other times this page has redirected visitors to a website to download what purports to be the Opera GX internet browser software. Moreover, the website has intermittently resolved to a page featuring Arabic script. These web pages attempt to collect the personal information of website visitors in what appears to be a fraudulent phishing scheme. Currently the domain name does not resolve to an active website.
Respondent registered the <8vbc.com> domain name in bad faith with actual or at least constructive knowledge of Complainant’s rights in the 8VC mark and has used the domain name in bad faith to misdirect users to various webpages associated with fraudulent activity. Moreover, Respondent has used the domain name in an attempt to download malicious software on user’s computers. Additionally, Respondent uses the domain name to perpetuate a phishing scheme to extract personal information from users. Further, Respondent’s <8vbc.com> domain name constitutes typosquatting. Respondent’s bad faith registration and use may also be demonstrated through Respondent’s failure currently to make active use of the domain name’s resolving webpage.
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 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”).
Complainant has shown that it has rights in the 8VC mark through registration with the USPTO (e.g., Reg. No. 5,257,111, registered August 1, 2017). The Panel finds Respondent’s <8vbc.com> domain name to be confusingly similar to Complainant’s 8VC mark as it contains the mark in a misspelled form, merely adding the letter “b”, which is insufficient to distinguish the domain name from the mark, and the inconsequential “.com” generic top-level domain (“gTLD”), which may be ignored.
Complainant has established this element.
(i) before any notice to Respondent of the dispute, the use by Respondent 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; or
(ii) 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
(iii) Respondent is making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert customers or to tarnish the trademark or service mark at issue.
The <8vbc.com> domain name was registered May 28, 2022, several years after Complainant registered its 8VC mark, which Complainant has shown is well-known. The domain name does not currently resolve to an active website but Complainant has shown that it has previously resolved to what purport to be third party websites which invite Internet users to download software or provide their personal information.
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 <8vbc.com> 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 JUUL Labs, Inc. v. Dryx Emerson / KMF Events LTD, FA1906001849706 (Forum July 17, 2019).
Respondent has made no attempt to do so.
The Panel finds that Respondent has no rights or legitimate interests in respect of the domain name.
Complainant has established this element.
Registration and Use in Bad Faith
The four illustrative circumstances set out in paragraph 4(b) of the Policy as evidence of the registration and use of a domain name in bad faith for purposes of paragraph 4(a)(iii) are not exclusive.
The circumstances set out above in relation to the second element satisfy the Panel that Respondent was likely to have been aware of Complainant’s well-known 8VC mark and its “www.8vc.com” website when Respondent registered the typosquatted <8vbc.com> domain name and that Respondent registered and is using the domain name in bad faith for the purpose of phishing for information from unsuspecting customers of Complainant.
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 <8vbc.com> domain name be TRANSFERRED from Respondent to Complainant.
Alan L. Limbury, Panelist
Dated: July 28, 2022
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