Correct Craft IP Holdings, LLC v. Natasha Luzkova
Claim Number: FA2305002043804
Complainant is Correct Craft IP Holdings, LLC (“Complainant”), represented by Ryan T. Santurri of Allen, Dyer, Doppelt & Gilchrist, P.A., Florida, USA. Respondent is Natasha Luzkova (“Respondent”), Russia.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <nautique-boats.com>, registered with Internet Domain Service BS Corp.
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.
Paul M. DeCicco, as Panelist.
Complainant submitted a Complaint to Forum electronically on May 9, 2023; Forum received payment on May 10, 2023.
On May 10, 2023, Internet Domain Service BS Corp confirmed by e-mail to Forum that the <nautique-boats.com> domain name is registered with Internet Domain Service BS Corp and that Respondent is the current registrant of the name. Internet Domain Service BS Corp has verified that Respondent is bound by the Internet Domain Service BS Corp 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 May 11, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 31, 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@nautique-boats.com. Also on May 11, 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 June 1, 2023, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Paul M. DeCicco, 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
Complainant contends as follows:
Complainant has been one of the premier providers of boats, particularly ski boats and wakeboard boats since at least as early as 1962.
Complainant asserts rights in the NAUTIQUE Marks based upon registration with the United States Patent and Trademark Office (“USPTO”).
The <nautique-boats.com> domain name is identical or confusingly similar to Complainant’s marks because the at-issue domain name fully incorporates Complainant’s NAUTIQUE mark, adding only the generic term “-boats” and the generic top level domain (“gTLD”) “.com”.
Respondent does not have rights or legitimate interests in the <nautique-boats.com> domain name. Respondent is not licensed or authorized to use Complainant’s NAUTIQUE Marks and is not commonly known by the disputed domain name. Additionally, Respondent does not use the at-issue domain name for any bona fide offering of goods or services or legitimate noncommercial or fair use. Rather, Respondent is passing off as Complainant in furtherance of a phishing scheme.
Respondent registered and uses the <nautique-boats.com> domain name in bad faith. Respondent has a pattern of bad faith registration. Respondent is passing off as Complainant to host a copycat phishing site or at times to redirect traffic to Complainant’s genuine website, thus disrupting Complainant’s business.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has rights in the NAUTIQUE mark.
Respondent is not affiliated with Complainant and has not been authorized to use Complainant’s trademark in any capacity.
Respondent registered the at‑issue domain name after Complainant acquired rights in the NAUTIQUE trademark.
Respondent uses the at-issue domain name to pass itself off as Complainant by addressing a website that mimics Complainant’s genuine website in furtherance of a phishing scheme.
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 at-issue domain name is confusingly similar to a trademark in which Complainant has rights.
Complainant’s ownership of a USPTO trademark registration for its NAUTIQUE mark is sufficient to demonstrate Complainant’s rights in such mark for the purposes of Policy ¶ 4(a)(i). See Microsoft Corp. v. Burkes, FA 652743 (Forum Apr. 17, 2006) (“Complainant has established rights in the MICROSOFT mark through registration of the mark with the USPTO.”).
Respondent’s at-issue domain name consists of Complainant’s NAUTIQUE trademarks followed by an insignificant hyphen and the suggestive term “boats” with all followed by the “.com” top level domain name. The differences between Respondent’s <nautique-boats.com> domain name and Complainant’s NAUTIQUE trademark are insufficient to distinguish the at-issue domain name from Complainant’s trademark for the purposes of the Policy. Therefore, the Panel finds that Respondent’s <nautique-boats.com> domain name is confusingly similar to Complainant’s trademark pursuant to Policy ¶ 4(a)(i). See Bloomberg Finance L.P. v. Nexperian Holding Limited, FA 1782013 (Forum June 4, 2018) (“Where a relevant trademark is recognizable within a disputed domain name, the addition of other terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) does not prevent a finding of confusing similarity under the first element.”).
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. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006). Since Respondent failed to respond, Complainant’s prima facie showing acts conclusively.
Respondent lacks both rights and legitimate interests in respect of the at-issue domain name. Respondent is not authorized to use Complainant’s trademark in any capacity and as discussed below there are no Policy ¶ 4(c) circumstances from which the Panel might find that Respondent has rights or interests in respect of the at‑issue domain name. See Emerson Electric Co. v. golden humble / golden globals, FA 1787128 (Forum June 11, 2018) (“lack of evidence in the record to indicate a respondent is authorized to use [the] complainant’s mark may support a finding that [the] respondent does not have rights or legitimate interests in the disputed domain name per Policy ¶ 4(c)(ii)”).
WHOIS information for the at-issue domain name identifies the domain name’s registrant as “Natasha Luzkova” and the record before the Panel contains no evidence that otherwise tends to prove that Respondent is commonly known by the <nautique-boats.com> domain name. The Panel therefore concludes that Respondent is not commonly known by the at-issue domain name for the purposes of Policy ¶ 4(c)(ii). See Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Forum July 17, 2006) (concluding that the respondent was not commonly known by the <coppertown.com> domain name where there was no evidence in the record, including the WHOIS information, suggesting that the respondent was commonly known by the disputed domain name).
Respondent’s confusingly similar domain name addresses a website that mimics Complainant’s genuine website. Respondent poses as Complainant through the at-issue domain name and its associated website and has at times redirected traffic to Complainant’s genuine website. Respondent’s use of the at-issue domain name in this manner constitutes 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 Ripple Labs Inc. v. NGYEN NGOC PHUONG THAO, FA 1741737 (Forum Aug. 21, 2017) (“Respondent uses the [disputed] domain name to divert Internet users to Respondent’s website… confusing them into believing that some sort of affiliation exists between it and Complainant… [which] 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 also, DaVita Inc. v. Cynthia Rochelo, FA 1738034 (Forum July 20, 2017) (”Passing off in furtherance of a phishing scheme is not considered a bona fide offering of goods or services or legitimate noncommercial or fair use.”); see also, Mortgage Research Center LLC v. Miranda, FA 993017 (Forum July 9, 2007) (“Because [the] respondent in this case is also attempting to pass itself off as [the] complainant, presumably for financial gain, the Panel finds the respondent is not using the <mortgageresearchcenter.org> domain name for a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).”).
Given the forgoing, Complainant satisfies its initial burden and demonstrates Respondent’s lack of rights and lack of legitimate interests in respect of the at-issue domain name pursuant to Policy ¶ 4(a)(ii).
Respondent’s <nautique-boats.com> domain name was registered and used in bad faith. As discussed below without being exhaustive, bad faith circumstances are present that allow the Panel to conclude that Respondent acted in bad faith pursuant to paragraph 4(a)(iii) of the Policy.
First and as mentioned above regarding rights and legitimate interests, Respondent registered and uses <nautique-boats.com> to mimic Complainant’s website and pass itself off as Complainant to attract internet traffic to Respondent’s <nautique-boats.com> website. Respondent’s <nautique-boats.com> website is then used to deceitfully collect personal information from site visitors. Respondent’s passing itself off as Complainant to perpetuate a phishing scheme shows Respondent’s bad faith under Policy ¶ 4(b)(iii) and Policy ¶ 4(b)(iv). See Artistic Pursuit LLC v. calcuttawebdevelopers.com, FA 894477 (Forum Mar. 8, 2007) (finding that the respondent’s registration and use of the disputed domain name, which displayed a website virtually identical to the complainant’s website, constituted bad faith pursuant to Policy ¶ 4(b)(iii)); see also, Bittrex, Inc. v. Wuxi Yilian LLC, FA 1760517 (Forum December 27, 2017) (finding bad faith per Policy ¶ 4(b)(iv) where “Respondent registered and uses the <lbittrex.com> domain name in bad faith by directing Internet users to a website that mimics Complainant’s own website in order to confuse users into believing that Respondent is Complainant, or is otherwise affiliated or associated with Complainant.”); see also, Amazon Technologies, Inc. v. jaskima smith, FA 1750160 (Forum Oct. 26, 2017) (finding the respondent registered and used the disputed domain name in bad faith to pass off as the complainant attempts to gain personal information from users who mistakenly access the website).
Moreover, Complainant shows that Respondent has registered multiple domain names that contain the names of boat brands and has used such domain names to mirror the brands’ respective websites. Doing so indicates a pattern of cybersquatting and suggests Respondent’s bad faith registration and use of the at-issue domain name in the instant case pursuant to Policy ¶ 4(b)(ii). See Bullock v. Network Operations Ctr., FA 1269834 (Forum Aug. 10, 2009) (“Complainant contends that Respondent has a longstanding history of cybersquatting . . . . The Panel finds that Respondent has engaged in bad faith registration and use under Policy ¶ 4(b)(ii).”); see also Nabisco Brands Co. v. Patron Group, Inc., D2000-0032 (WIPO Feb. 23, 2000) (holding that registration of numerous domain names is one factor in determining registration and use in bad faith).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <nautique-boats.com> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: June 2, 2023
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