Yahoo Assets LLC v. Hesom Dunrl
Claim Number: FA2211002022118
Complainant is Yahoo Assets LLC (“Complainant”), represented by Joseph Daniels-Salamanca of Kilpatrick Townsend & Stockton LLP, California, USA. Respondent is Hesom Dunrl (“Respondent”), New York, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <xtechcrunch.com>, registered with Cosmotown, Inc.
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 November 29, 2022. Forum received payment on November 29, 2022.
On November 30, 2022, Cosmotown, Inc. confirmed by e-mail to Forum that the <xtechcrunch.com> domain name is registered with Cosmotown, Inc. and that Respondent is the current registrant of the name. Cosmotown, Inc. has verified that Respondent is bound by the Cosmotown, Inc. 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 December 5, 2022, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 27, 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@xtechcrunch.com. Also on December 5, 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.
On December 6, 2022, Respondent sent an informal email message to Forum.
Having received no formal response from Respondent, Forum transmitted to the parties a Notification of Respondent Default.
On December 29, 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
Under the TECHCRUNCH mark, Complainant provides information, news, analysis and commentary in the field of current events relating to technology, technology innovation, consumer products, electronics, the Internet, social media, computers, entrepreneurship, start-up companies and business. Complainant operates the website at “www.techcrunch.com”.
Complainant has rights in the TECHCRUNCH mark based upon registrations around the world, including with the United States Patent and Trademark Office (“USPTO”). The <xtechcrunch.com> domain name is confusingly similar to Complainant’s TECHCRUNCH mark.
Respondent has no rights or legitimate interests in the <xtechcrunch.com> domain name. Respondent is not commonly known by the domain name and is not using it in connection with any bona fide offering of goods or services nor for any legitimate or fair use. Respondent is using the domain name to impersonate Complainant in an effort to divert Complainant’s user base to its own website featuring overlapping goods and services.
Respondent registered the <xtechcrunch.com> domain name in bad faith with actual knowledge of Complainant’s rights in the TECHCRUNCH mark and uses the domain name in bad faith as a ploy to divert users seeking Complainant’s goods and services to Respondent’s website where their personal information is likely to be compromised.
B. Respondent
Respondent failed to submit a formal Response in this proceeding. Respondent’s informal email to Forum said:
“I purchased xTechCrunch.com,
You saying xTechCrunch is a property of Yahoo.
I will transfer to the Yahoo but I purchased domain from my money so i need money in the exchange then i will transfer to the Yahoo with given details…”
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 formal 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 Panel notes Respondent’s informal email to Forum but has not taken it into account in rendering this decision.
Complainant has shown that it has rights in the TECHCRUNCH mark based upon numerous registrations, including with the USPTO (e.g. Reg. No. 4,064,062, registered by its predecessor TechCrunch Inc. on November 29, 2011 and assigned to Complainant in 2021). The Panel finds Respondent’s <xtechcrunch.com> domain name to be confusingly similar to Complainant’s TECHCRUNCH mark because the domain name includes Complainant’s mark in its entirety, adding the letter “x”, which does nothing 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 <xtechcrunch.com> domain name was registered on August 8, 2022, over 17 years after Complainant’s predecessor began using the TECHCRUNCH mark. It resolves to a website which prominently features “xtechcrunch” in the header of every page and news and blog articles relating to computers, hardware, robotics, artificial intelligence and software. Each article contains a comment field that requires a user’s name and email address. However, the website’s privacy policy is in unintelligible “lorem ipsum” language and is not accessible through any available link, so users are not informed as to how their personal information will be used and/or shared with third parties.
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 <xtechcrunch.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.
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 fully aware of Complainants’ TECHCRUNCH mark when Respondent registered the <xtechcrunch.com> domain name and that Respondent has registered and is using the domain name in bad faith by impersonating Complainant for the purpose of obtaining personal information from Internet users.
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 <xtechcrunch.com> domain name be TRANSFERRED from Respondent to Complainant.
Alan L. Limbury, Panelist
Dated: December 30, 2022.
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