Cirion Technologies Solutions, LLC v. Antonio Roberto Vitor Rana / CENTURYLINK COMUNICACOES DO BRASIL LTDA
Claim Number: FA2302002032217
Complainant is Cirion Technologies Solutions, LLC (“Complainant”), represented by Lindsay M.R. Jones of Merchant & Gould, P.C., USA. Respondent is Antonio Roberto Vitor Rana / CENTURYLINK COMUNICACOES DO BRASIL LTDA (“Respondent”), Brazil.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <ciriontechnologiies.com>, registered with Google LLC.
The undersigned certifies that he has acted independently and impartially, and, to the best of his knowledge, has no conflict of interests in serving as Panelist in this proceeding.
Terry F. Peppard as Panelist.
Complainant submitted a Complaint to Forum electronically on February 16, 2023; Forum received payment on February 16, 2023. The Complaint was submitted in English.
On February 17, 2023, Google LLC confirmed by e-mail to Forum that the <ciriontechnologiies.com> domain name is registered with Google LLC and that Respondent is the current registrant of the name. Google LLC has verified that Respondent is bound by the Google 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 17, 2023, Forum served the Complaint and all Annexes, including a Portuguese language Written Notice of the Complaint, setting a deadline of March 9, 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@ciriontechnologiies.com. Also on February 17, 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 17, 2023, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Terry F. Peppard as sole Panelist in this proceeding.
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 a response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
PRELIMINARY ISSUE: LANGUAGE OF PROCEEDING
In the ordinary course, UDRP Rule 11(a) provides that the language of this proceeding should be the language of the registration agreement governing the challenged domain name. That language is Portuguese. However, Complainant has requested that the language of the proceeding should instead be English. In support of this request, Complainant submits that:
(i) the disputed domain name contains wholly English terms;
(ii) the content of the website resolving from the domain name is
entirely in English;
(iii) the currency identified on that website is US dollars;
(iv)the same website targets English-speaking Internet users; and
(v) these facts demonstrate Respondent’s proficiency in English.
Respondent does not contest these assertions. Therefore, and because translating the documents required to prosecute this proceeding in Portuguese would put Complainant to a substantial financial burden and unnecessarily delay this proceeding, as well as because UDRP Rule 11(a) permits this Panel to proceed in a language other than that of the governing registration agreement “having regard to the circumstances of the administrative proceeding,” we conclude that it would be in the interests of justice for us to grant Complainant’s request. See, for example, The Argento Wine Company Limited v. Argento Beijing Trading Company, D2009-0610 (WIPO July 1, 2009) (a panel there exercising its discretion in deciding that the language of a proceeding should be English, notwithstanding the different language of the pertinent registration agreement, based on evidence that a respondent had command of the English language).
Accordingly, this proceeding will be conducted in the English language.
A. Complainant
Complainant, Cirion Technologies Solutions, LLC, provides technology products and services, including data processing and storage.
Complainant has rights in the CIRION mark by reason of a trademark registration application filed with the United States Patent and Trademark Office (“USPTO”) on December 9, 2021, which application remains pending.
Complainant has, since January 12, 2022, owned the domain name <ciriontechnologies.com>.
Complainant has done business online via that domain name since August 1, 2022.
Complainant now serves more than 6,400 customers throughout the Americas, including commercial enterprises, governmental agencies, cloud service providers, wireless carriers and Internet service providers.
In the course of serving its customers, Complainant has developed substantial goodwill and customer recognition.
Complainant therefore also asserts rights in the CIRION mark under the common law.
Respondent registered the domain name <ciriontechnologiies.com> on September 19, 2022.
The domain name is confusingly similar to Complainant’s CIRION mark.
Respondent is not licensed to use Complainant’s CIRION mark.
Respondent has not been commonly known by the disputed domain name.
Respondent does not use the domain name for either a bona fide offering of goods or services or a legitimate noncommercial or fair use.
Respondent fails to make any active use of the domain name.
Rather, Respondent employs the domain name falsely to associate itself with Complainant in order to divert Internet traffic to an inactive website.
Respondent lacks both rights to and legitimate interests in the challenged domain name.
Respondent’s registration and use of the domain name disrupts Complainant’s business.
Respondent knew of Complainant’s rights in the CIRION mark when it registered the domain name.
Respondent both registered and now uses the domain name in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has failed to prove that it has rights in the CIRION mark sufficient to confer upon it standing to pursue its claim against Respondent, as is required by Policy¶4(a)(i).
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 to or legitimate interests in respect of the domain name; and
(3) the same domain name has been registered and is being used by Respondent in bad faith.
In view of Respondent's failure to submit a response, the Panel will decide this administrative proceeding pursuant to paragraphs 5(f), 14(a) and 15(a) of the Rules on the basis of Complainant's undisputed representations, and will, pursuant to paragraph 14(b) of the Rules, draw such inferences as it deems appropriate. 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.
Our analysis under Policy¶4(a)(i) does not begin with a determination of the question of identity or confusing similarity as between Complainant’s CIRION mark and Respondent’s <ciriontechnologiies.com> domain name, but with an assessment of the threshold question whether Complainant has shown that it has rights in the CIRION mark sufficient to establish its standing to pursue its claim in a UDRP proceeding. On this point, Complainant offers that, while it has not yet obtained registration of its mark with a competent trademark authority, it does have common law rights in the mark running from August 1, 2022.
A showing of rights in a mark acquired under the common law would meet the test of standing under Policy¶4(a)(i). See, for example, Artistic Pursuit LLC v. calcuttawebdevelopers.com, FA 894477 (Forum March 8, 2007) (finding that Policy¶4(a)(i) does not require a trademark registration if a UDRP complainant can show that it has common law rights in its mark). The required showing may be made in a variety of ways. See, for example, WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition, at sec. 1.3:
Relevant evidence … includes a range of factors such as (i) the duration and nature of use of the mark, (ii) the amount of sales under the mark, (iii) the nature and extent of advertising using the mark, (iv) the degree of actual public (e.g., consumer, industry, media) recognition, and (v) consumer surveys.
Complainant asserts that it now serves thousands of customers throughout the Americas, and that, in the course of serving its customers, it has developed substantial goodwill and customer recognition. However, Complainant offers no evidence in support of these contentions. Markedly absent from its presentation is any proof of its sales revenues and advertising expenditures as well as a showing of public recognition of the mark in the period between commencement of its business operations and the registration of Respondent’s domain name on September 19, 2022.
This failure of proof leaves no support for a finding of secondary meaning in the mark, and, therefore, of common law rights in it satisfying the requirements of Policy¶4(a)(i). See, for example, CW & Associates Consulting and Recruiting Inc. v. Lynda Pitchford / ITSR, FA 1619758 (Forum June 29, 2015), finding that a UDRP complainant failed to establish common law rights in a mark where:
Complainant has failed to provide evidence of any sales figures or advertising expenditures or any indication of the extent of use aside from what may be implied from the business name registration and placement of the name(s) on social media.
For this reason, we must conclude that Complainant has failed to establish that it has rights in the claimed CIRION mark under the common law conferring upon it standing to pursue the present claim under the terms of the Policy. We must therefore decline to address the substantive question raised by Policy¶4(a)(i) of identity or confusing similarity as between Complainant’s mark and Respondent’s domain name.
Rights to or Legitimate Interests / Registration and Use in Bad Faith
Because to prevail in its effort to obtain an order transferring to it the contested <ciriontechnologiies.com> domain name, Complainant must satisfy by evidence each of the three subsections of Policy¶4(a), its failure to meet the proof requirements of any of them must be fatal to its cause. See, for example, Netsertive, Inc. v. Ryan Howard, FA 1721637 (Forum April 17, 2017) (finding that, because a UDRP complainant must prove all three elements of Policy¶4(a), its failure to prove one of them makes inquiry into the remaining elements unnecessary). See also Wasatch Shutter Design v. Duane Howell, FA 1731056 (Forum June 23, 2017) (deciding not to inquire into a respondent’s rights to or legitimate interests in a disputed domain name or its registration and use in bad faith where a UDRP complainant failed to satisfy the proof requirements of Policy¶4(a)(i)).
We therefore decline to inquire into Complainant’s remaining contentions.
Complainant having failed to establish one of the three essential elements required to be proven under the ICANN Policy, the Panel concludes that the relief requested must be, and it is hereby, DENIED.
Accordingly, it is Ordered that the domain name <ciriontechnologiies.com> remain with Respondent.
Terry F. Peppard, Panelist
Dated: March 22, 2023
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