The Exploratorium v. Veselin Simeonov / Simko grup EOOD
Claim Number: FA2302002030402
Complainant is The Exploratorium (“Complainant”), represented by Chris Civil of Cobalt LLP, California, USA. Respondent is Veselin Simeonov / Simko grup EOOD (“Respondent”), Bulgaria.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <exploratorium.school>, registered with eNom, LLC.
The undersigned certifies that she has acted independently and impartially and to the best of 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 February 2, 2023; Forum received payment on February 2, 2023.
On February 3, 2023, eNom, LLC confirmed by e-mail to Forum that the <exploratorium.school> domain name is registered with eNom, LLC and that Respondent is the current registrant of the name. eNom, LLC has verified that Respondent is bound by the eNom, 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 February 7, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 27, 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@exploratorium.school. Also on February 7, 2023, 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 March 6, 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 <exploratorium.school> domain name is confusingly similar to Complainant’s EXPLORATORIUM mark.
2. Respondent does not have any rights or legitimate interests in the <exploratorium.school> domain name.
3. Respondent registered and uses the <exploratorium.school> domain name in bad faith.
B. Respondent did not file a Response.
Complainant uses its mark, EXPLORATORIUM, in connection with museum services, clothing, and other goods. Complainant holds a registration for the EXPLORATORIUM mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 936,318, registered June 20, 1972).
Respondent registered the <exploratorium.school> domain name on February 4, 2022, and fails to make an active use of the domain name.
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 EXPLORATORIUM mark based on registration with the USPTO. See DIRECTV, LLC v. The Pearline Group, FA 1818749 (Forum Dec. 30, 2018) (“Complainant’s ownership of a USPTO registration for DIRECTV demonstrate its rights in such mark for the purposes of Policy ¶ 4(a)(i).”)
Respondent’s <exploratorium.school> domain name contains the EXPLORATORIUM mark and merely adds the “.school” gTLD. The addition of a gTLD does not distinguish a disputed domain name from a mark under Policy ¶ 4(a)(i). See Tupelo Honey Hospitality Corporation v. King, Reggie, FA 1732247 (Forum July 19, 2017) (“Addition of a gTLD is irrelevant where a mark has been fully incorporated into a domain name and the gTLD is the sole difference.”). Therefore, the Panel finds that Respondent’s <exploratorium.school> domain name is confusingly similar to Complainant’s EXPLORATORIUM 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 contends that Respondent has no rights or legitimate interests in the <exploratorium.school> domain name, as Respondent is not commonly known by the domain name. Complainant has not authorized Respondent to use its EXPLORATORIUM mark. The WHOIS information of record names “Veselin Simeonov / Simko grup EOOD” as the registrant of the disputed domain name. The Panel therefore finds that Respondent is not commonly known by the disputed domain name, and thus has no rights under Policy ¶ 4(c)(ii). See Amazon Technologies, Inc. v. Suzen Khan / Nancy Jain / Andrew Stanzy, FA 1741129 (Forum Aug. 16, 2017) (finding that respondent had no rights or legitimate interests in the disputed domain names when the identifying information provided by WHOIS was unrelated to the domain names or respondent’s use of the same).
Complainant argues that Respondent fails to use the <exploratorium.school> domain name for a bona fide offering of goods and services or a legitimate or fair use because the domain name resolves to a blank webpage. Failing to make an active use of a disputed domain name is not a bona fide offering of goods and services or a legitimate or fair use under Policy ¶ 4(c)(i) or (iii). See CrossFirst Bankshares, Inc. v Yu-Hsien Huang, FA 1785415 (Forum June 6, 2018) (“Complainant demonstrates that Respondent fails to actively use the disputed domain name as it resolves to an inactive website. Therefore, the Panel finds that Respondent fails to actively use the disputed domain name for a bona fide offering of goods or services or legitimate noncommercial or fair use under Policy ¶ 4(c)(i) or (iii).”) Complainant provides evidence that there is no content at <exploratorium.school>. Therefore, the Panel finds that Respondent fails to make an active use of the disputed domain name, and thus has no rights under Policy ¶ 4(c)(i) and (iii).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant argues that Respondent registered and uses the <exploratorium.school> domain name in bad faith by failing to make an active use of the domain name. An inactive website is evidence of bad faith under Policy ¶ 4(a)(iii). See Regions Bank v. Darla atkins, FA 1786409 (Forum June 20, 2018) (“Respondent registered and is using the domain name in bad faith under Policy ¶ 4(a)(iii) because Respondent uses the domain name to host an inactive website.”) Accordingly, Panel finds bad faith under Policy ¶ 4(a)(iii).
Complainant also asserts that Respondent registered the <exploratorium.school> domain name with actual knowledge of Complainant’s rights in the EXPLORATORIUM mark based on Respondent’s use of the entirety of Complainant’s mark. Complainant further asserts that it first used the EXPLORATORIUM Mark in 1972, decades before Respondent registered the disputed domain name. The Panel agrees with Complainant and finds further bad faith under Policy ¶ 4(a)(iii). See Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum Feb. 6, 2014) (“The Panel notes that although the UDRP does not recognize ‘constructive notice’ as sufficient grounds for finding Policy ¶ 4(a)(iii) bad faith, the Panel here finds actual knowledge through the name used for the domain and the use made of it.”)
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 <exploratorium.school> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: March 7, 2023
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