EOTECH, LLC v. Sarany Oum
Claim Number: FA2212002023799
Complainant is EOTECH, LLC (“Complainant”), represented by Jennifer M. Hetu of Bodman PLC, Michigan. Respondent is Sarany Oum (“Respondent”), Louisiana.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <eotechinc.co>, registered with NameCheap, 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.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to Forum electronically on December 13, 2022; Forum received payment on December 13, 2022.
On December 13, 2022, NameCheap, Inc. confirmed by e-mail to Forum that the <eotechinc.co> domain name is registered with NameCheap, Inc. and that Respondent is the current registrant of the name. NameCheap, Inc. has verified that Respondent is bound by the NameCheap, 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 14, 2022, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 3, 2023 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@eotechinc.co. Also on December 14, 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 January 4, 2023, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Sandra J. Franklin 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
1. Respondent’s <eotechinc.co> domain name is confusingly similar to Complainant’s EOTECH mark.
2. Respondent does not have any rights or legitimate interests in the <eotechinc.co> domain name.
3. Respondent registered and uses the <eotechinc.co> domain name in bad faith.
B. Respondent did not file a Response.
Complainant, EOTECH, LLC, designs and manufactures optics sights and scopes, thermal devices, and related products. Complainant holds a registration for the EOTECH mark with multiple trademark agencies, including with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 2,070,175, registered June 10, 1997).
Respondent registered the <eotechinc.co> domain name on December 22, 2019, and uses it to redirect internet users to an unrelated, political website.
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 Panel finds that Complainant has rights in the EOTECH mark based upon registration with the USPTO. See Emerson Electric Co. v. Cai Jian Lin / Shen Zhen Shi colorsun Zi Dong Hua You Xian Gong Si, FA 1798802 (Forum Aug. 31, 2018) (“Registering a mark with multiple trademark agencies around the world is sufficient to establish rights in a mark for the purposes of Policy ¶ 4(a)(i).”)
Respondent’s <eotechinc.co> domain name incorporates the EOTECH mark in its entirety, merely adding the abbreviated term for a corporate entity, “inc”, and the ccTLD “.co”. These changes do not distinguish the disputed domain name from the mark incorporated therein under Policy ¶ 4(a)(i). See Microsoft Corporation v. Thong Tran Thanh, FA 1653187 (Forum Jan. 21, 2016) (determining that confusing similarity exists where [a disputed domain name] contains Complainant’s entire mark and differs only by the addition of a generic or descriptive phrase and top-level domain, the differences between the domain name and its contained trademark are insufficient to differentiate one from the other for the purposes of the Policy). Therefore, the Panel finds that Respondent’s <eotechinc.co> domain name is confusingly similar to Respondent’s EOTECH mark.
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(i).
Once Complainant makes a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), the burden shifts to Respondent to show it does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests”).
Complainant argues that Respondent does not have rights or legitimate interests in the <eotechinc.co> domain name because Respondent is not commonly known by the disputed domain name and is not licensed or authorized to use Complainant’s EOTECH mark. The WHOIS information for the disputed domain name lists the registrant as “Sarany Oum.” Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name, and thus has no rights under Policy ¶ 4(c)(ii). See Chevron Intellectual Property LLC v. Fred Wallace, FA1506001626022 (Forum July 27, 2015) (finding that the respondent was not commonly known by the <chevron-europe.com> domain name under Policy ¶ 4(c)(ii), as the WHOIS information named “Fred Wallace” as registrant of the disputed domain name); see also 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).
Complainant claims that Respondent does not use the disputed domain name for a bona fide offering of goods or services or a legitimate noncommercial or fair use because Respondent uses it to redirect internet users to an unrelated, political website. Diverting users looking for a complainant to an unrelated site is neither a bona fide offering of goods or services under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See WeddingChannel.com Inc. v. Vasiliev, FA 156716 (Forum June 12, 2003) (finding that the respondent’s use of the disputed domain name to redirect Internet users to websites unrelated to the complainant’s mark, websites where the respondent presumably receives a referral fee for each misdirected Internet user, was not a bona fide offering of goods or services as contemplated by the Policy); see also See Golden Bear Int’l, Inc. v. Kangdeock-ho, FA 190644 (Forum Oct. 17, 2003) (“Respondent's use of a domain name confusingly similar to Complainant’s mark to divert Internet users to websites unrelated to Complainant's business does not represent a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).”) Complainant provides a screenshot showing that the disputed domain name redirects to the <joebiden.com> website. The Panel finds that this Is not a bona fide offering of goods or services or a legitimate noncommercial or fair use, and thus Respondent has no rights under Policy ¶ 4(c)(i) or Policy ¶ 4(c)(iii).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant argues that Respondent registered and uses the <eotechinc.co> domain name in bad faith to divert internet users to an unrelated website, taking advantage of the goodwill associated with Complainant’s mark. Using a disputed domain name to redirect internet users seeking a complainant to an unrelated political website evinces bad faith under Policy ¶ 4(a)(iii). See Journal Gazette Co. v. Domain For Sale Inc., FA 122202 (Forum Oct. 9, 2002) (finding “Respondent chose the domain name to increase the traffic flowing to the <abortionismurder.org> and <thetruthpage.com> websites”); see also Advanced Research & Tech. Inst., Inc. v. LeVin, FA 318079 (Forum Nov. 19, 2004) (finding bad faith where the respondent registered the <indianauniversity.net> and <indianauniversity.org> domain names for political purposes or to tarnish the complainant’s mark). Accordingly, the Panel finds bad faith under Policy ¶ 4(a)(iii).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <eotechinc.co> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: January 5, 2023
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