Asensus Surgical US, Inc. v. Always Kind / always4luv Inc
Claim Number: FA2210002015614
Complainant is Asensus Surgical US, Inc. (“Complainant”), represented by Phillip N. Yannella of Ballard Spahr LLP, Pennsylvania, USA. Respondent is Always Kind / always4luv Inc (“Respondent”), Texas, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <asensusjobs.com>, registered with PDR Ltd. d/b/a PublicDomainRegistry.com.
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 Forum electronically on October 11, 2022. Forum received payment on October 11, 2022.
On October 12, 2022, PDR Ltd. d/b/a PublicDomainRegistry.com confirmed by e-mail to Forum that the <asensusjobs.com> domain name is registered with PDR Ltd. d/b/a PublicDomainRegistry.com and that Respondent is the current registrant of the name. PDR Ltd. d/b/a PublicDomainRegistry.com has verified that Respondent is bound by the PDR Ltd. d/b/a PublicDomainRegistry.com 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 October 12, 2022, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 1, 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@asensusjobs.com. Also on October 12, 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, Forum transmitted to the parties a Notification of Respondent Default.
On November 7, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Alan L. Limbury 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, Asensus Surgical US, Inc., offers innovative technology in the medical sciences, specializing in digitizing the interface between surgeon and patient. Complainant has rights in the ASENSUS mark based upon holding a Notice of Allowance for a pending trademark application with the USPTO. Respondent’s <asensusjobs.com> domain name is confusingly similar to Complainant’s mark.
Respondent does not have rights or legitimate interests in the <asensusjobs.com> domain name. Respondent is not licensed or authorized to use Complainant’s ASENSUS mark and is not commonly known by the disputed domain name. Additionally, Respondent does not use the disputed domain name for any bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent has created a fake email address in order to pass itself off as Complainant in an attempt to defraud third parties who have been put under the impression that they have been solicited for and applied for a job with Complainant.
Respondent registered and uses the <asensusjobs.com> domain name in bad faith for a fraudulent email address in furtherance of a phishing scheme. A reverse WHOIS indicates Respondent has registered at least one other fraudulent domain name, <loandepotjob.com>, using the same contact information. Hence Respondent has engaged in a pattern of bad faith domain name registration.
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 ASENSUS mark based upon its holding a Notice of Allowance issued on May 31, 2022 for a pending trademark application with the USPTO, Serial No. 90356163, filed December 3, 2020. See Love City Brewing Company v. Anker Fog/Love City Brewing Company, FA1753144 (Forum Nov. 17, 2017) (pending trademark application which had been issued a Notice of Allowance held sufficient to establish rights in the mark under Rule ¶ 4(a)(i)). Complainant is also the registrant of the domain name <asensus.com>.
The Panel finds Respondent’s <asensusjobs.com> domain name to be confusingly similar to Complainant’s mark because it contains the ASENSUS mark in its entirety, merely adding the term “jobs”, which is insufficient to distinguish the domain name from the mark, and the inconsequential generic top-level domain (“gTLD”) “.com”, which may be ignored.
Complainant has established this element.
Rights or Legitimate Interests
(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 <asensusjobs.com> domain name was registered on September 26, 2022, almost four months after Complainant has shown that its ASENSUS trademark application had received its Notice of Allowance. Complainant has shown that the domain name has been used for a false email address to give third parties the impression that they have been solicited for and applied for a job with Complainant.
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 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 <asensusjobs.com> 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.
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 fully aware of Complainants’ ASENSUS mark and <asensus.com> domain name when Respondent registered the <asensusjobs.com> domain name and that Respondent has registered and is using the domain name in bad faith for the purpose of obtaining sensitive information by impersonating Complainant’s employee.
Complainant has established this element.
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 <asensusjobs.com> domain name be TRANSFERRED from Respondent to Complainant.
Alan L. Limbury, Panelist
Dated: November 8, 2022
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page