Yahoo Assets LLC v. Navya Nav / None
Claim Number: FA2211002022123
Complainant is Yahoo Assets LLC (“Complainant”), represented by David K. Caplan of Kilpatrick Townsend & Stockton LLP, US. Respondent is Navya Nav / None (“Respondent”), IN.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <skytechcrunch.com>, (the “Domain Name”) registered with Launchpad.com Inc.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Dawn Osborne as Panelist.
Complainant submitted a Complaint to Forum electronically on November 29, 2022; Forum received payment on November 29, 2022.
On November 30, 2022, Launchpad.com Inc. confirmed by e-mail to Forum that the <skytechcrunch.com> Domain Name is registered with Launchpad.com Inc. and that Respondent is the current registrant of the names. Launchpad.com Inc. has verified that Respondent is bound by the Launchpad.com 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 November 30, 2022, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 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@skytechcrunch.com. Also on November 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, Forum transmitted to the parties a Notification of Respondent Default.
On December 21, 2022 pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Dawn Osborne 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
The Complainant’s contentions can be summarised as follows:
The Complainant is, inter alia, the owner of the trade mark TECH CRUNCH registered, inter alia, in India and the USA for technology news and educational services with first use recorded as 2005.
The Domain Name registered in 2022 is confusingly similar to the Complainant’s mark fully incorporating it and adding only the generic term ‘sky’ and the gTLD .com.
The Respondent does not have any rights or legitimate interests in the Domain Name, is not commonly known by it and is not authorised by the Complainant.
The Domain Name points to a web site that offers similar content to the Complainant using the Complainant’s mark in its masthead. This is not a bona fide offering of goods or services or a noncommercial legitimate or fair use.
The Respondent has intentionally taken advantage of the Complainant’s reputation to cause confusion and to suggest the Complainant is affiliated with the site attached to the Domain Name. The Respondent’s web site is collecting users’ personal information and the Complainant is concerned about phishing.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Complainant is, inter alia, the owner of the trade mark TECH CRUNCH registered, inter alia, in India and the USA for technology news and information services with first use recorded as 2005.
The Domain Name registered in 2022 has been used for a site offering competing technology news and information services using the Complainant’s mark in its masthead.
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 Domain Name in this Complaint combines the Complainant’s TECHCRUNCH mark (registered, inter alia, in India and the USA for news and information services with first use recorded as 2005), the generic term “sky” and the gTLD .com.
The addition of the generic word “sky” does not prevent confusing similarity between the Domain Name and the Complainant’s mark. See Abbott Laboratories v Miles White, FA 1646590 (Forum Dec 10, 2015) (holding that the addition of generic terms do not adequately distinguish a disputed domain name from complainant’s mark under Policy 4(a)(i).).
The gTLD .com does not serve to distinguish the Domain Name from the Complainant’s mark. See Red Hat Inc v Haecke FA 726010 (Forum July 24, 2006) (concluding that the redhat.org domain name is identical to the complainant's red hat mark because the mere addition of the gTLD was insufficient to differentiate the disputed domain name from the mark).
Accordingly, the Panel finds that the Domain Name is confusingly similar to a mark in which the Complainant has rights for the purpose of the Policy.
As such the Panel holds that Paragraph 4(a)(i) of the Policy has been satisfied.
Rights or Legitimate Interests
The Complainant has not authorised the use of its mark. There is no evidence or reason to suggest the Respondent is, in fact, commonly known by the Domain Name. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum Sept. 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark).
The Panel notes the allegation of phishing, but holds that this is not proven as the Respondent’s site only has a ‘contact us’ page collecting bare details needed like the e-mail address for messaging purposes.
However, using a Domain Name for competing services not connected with the Complainant is commercial and so cannot be noncommercial legitimate fair use and is not a bona fide offering of goods or services. (See Am. Intl Group Inc v Benjamin FA 944242 (Forum May 11, 2007) finding that the Respondent's use of a confusingly similar domain name to advertise real estate services which competed with the Complainant's business did not constitute a bona fide use of goods and services.).
The Respondent has not answered this Complaint or rebutted the prima facie case evidenced by the Complainant as set out herein.
As such the Panelist finds that the Respondent does not have rights or a legitimate interest in the Domain Name and that the Complainant has satisfied the second limb of the Policy.
Registration and Use in Bad Faith
In the opinion of the panelist the use made of the Domain Name in relation to the site is confusing and disruptive in that visitors to the site might reasonably believe it is connected to or approved by the Complainant as it offers competing technology news and information services using the Complainant’s mark in its masthead. The use of the Complainant's successful and distinctive TECH CRUNCH word mark in relation to the same services makes it more likely than not that the Respondent was aware of the Complainant and its rights, business and services at the time of registration.
Accordingly, the Panel holds that the Respondent has intentionally attempted to attract for commercial gain Internet users to its website by creating a likelihood of confusion with the Complainant’s trade mark as to the source, sponsorship, affiliation or endorsement of the web site and services offered on it likely to disrupt the business of the Complainant. (See Asbury Auto Group Inc v Tex. Int'l Prop Assocs FA 958542 (Forum May 29, 2007) finding that the respondent's use of the disputed domain name to advertise car dealerships that competed with the complainant's business would likely lead to confusion amongst Internet users as to the sponsorship or affiliation of those competing dealerships and was therefore evidence of bad faith and use).
As such, the Panelist believes that the Complainant has made out its case that the Domain Name was registered and used in bad faith and has satisfied the third limb of the Policy under Paragraphs 4(b)(iii) and (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 <skytechcrunch.com> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: December 21, 2022
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