Cryoport, Inc. v. almila yagmur
Claim Number: FA2208002010297
Complainant is Cryoport, Inc. ("Complainant"), represented by J. Damon Ashcraft of Snell & Wilmer L.L.P., Arizona, USA. Respondent is almila yagmur ("Respondent"), Turkey.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <cryoportskytrax.com>, registered with Dynadot, 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.
David E. Sorkin as Panelist.
Complainant submitted a Complaint to Forum electronically on August 30, 2022; Forum received payment on August 30, 2022.
On August 31, 2022, Dynadot, LLC confirmed by email to Forum that the <cryoportskytrax.com> domain name is registered with Dynadot, LLC and that Respondent is the current registrant of the name. Dynadot, LLC has verified that Respondent is bound by the Dynadot, 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 September 1, 2022, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 21, 2022 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@cryoportskytrax.com. Also on September 1, 2022, 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, Forum transmitted to the parties a Notification of Respondent Default.
On September 29, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed David E. Sorkin as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that 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, 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 provides transportation, storage, and logistical services and goods for temperature-sensitive life science materials around the world. Complainant was established in 1999 and has used the CRYOPORT mark in connection with its goods and services since shortly thereafter. Complainant owns trademark registrations for CRYOPORT in standard character form and otherwise in the United States and other jurisdictions. Complainant also has a pending United States trademark application for CRYOPORT SKYTRAX, filed in October 2021; it intends to use this mark in connection with data loggers and temperature monitoring devices.
Respondent registered the disputed domain name <cryoportskytrax.com> in October 2021, four days after Complainant filed its application to register CRYOPORT SKYTRAX. The domain name originally was used to display a page offering the domain name for sale (for $995 and later for $1,288 and then $9,800), and now forwards to GoDaddy's Domain Broker Service. Complainant states that Respondent is not sponsored or endorsed by Complainant and is not authorized or licensed to use Complainant's mark.
Complainant contends on the above grounds that the disputed domain name <cryoportskytrax.com> is identical or confusingly similar to its CRYOPORT 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 confusingly similar 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 <cryoportskytrax.com> incorporates Complainant's registered CRYOPORT trademark, adding SKYTRAX (a term that Complainant also uses or intends to use in connection with its goods and services) and the ".com" top-level domain. These additions do not substantially diminish the similarity between the domain name and Complainant's mark. See, e.g., Cryoport, Inc. v. Jordan Brand / ballmail, FA 1931193 (Forum Mar. 8, 2021) (finding <cryoportinc.com> confusingly similar to CRYOPORT). The Panel considers the disputed domain name to be confusingly similar to a mark in which Complainant has rights.
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 appears to have been used solely for the purpose of promoting a possible sale of the domain name itself. Such use does not give rise to rights or legitimate interests under the Policy. See, e.g., Toronto-Dominion Bank v. Super Privacy Service LTD c/o Dynadot / Almila Yagmur, D2022-2849 (WIPO Sept. 20, 2022) (finding lack of rights or interests in similar circumstances); Bloomberg Finance L.P. v. Almila Yagmur, FA 1990643 (Forum May 2, 2022) (same).
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)(i) of the Policy, bad faith may be shown by evidence that a domain name was acquired "primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of [Respondent's] documented out-of-pocket costs directly related to the domain name."
Respondent registered a domain name incorporating Complainant's longstanding registered mark and corresponding to the pending mark for which Complainant filed an application just four days earlier. The domain name appears to have been used solely for the purpose of promoting a possible sale of the domain name itself. Under the circumstances, the Panel infers that Respondent registered the domain name with Complainant and its mark in mind, intending to profit by selling the domain name to Complainant or a competitor thereof. See, e.g., NETSCOUT SYSTEMS INC. v. Super Privacy Service LTD c/o Dynadot, FA 1849802 (Forum July 29, 2019) (finding bad faith registration and use in similar circumstances). The Panel finds that the disputed domain name was registered and is being used in bad faith.
Having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <cryoportskytrax.com> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: October 3, 2022
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