Rapiscan Holdings, Inc. v. butcher butcher
Claim Number: FA2306002051092
Complainant is Rapiscan Holdings, Inc. ("Complainant"), represented by Douglas Masters of Loeb & Loeb LLP, Illinois, USA. Respondent is butcher butcher ("Respondent"), Texas, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <rapicsansystems.com>, registered with NameCheap, Inc.
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.
David E. Sorkin as Panelist.
Complainant submitted a Complaint to Forum electronically on June 28, 2023; Forum received payment on June 28, 2023.
On June 28, 2023, NameCheap, Inc. confirmed by email to Forum that the <rapicsansystems.com> 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 June 30, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 20, 2023 by which Respondent could file a Response to the Complaint, via email to all entities and persons listed on Respondent's registration as technical, administrative, and billing contacts, and to postmaster@rapicsansystems.com. Also on June 30, 2023, the Written Notice of the Complaint, notifying Respondent of the email 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 July 26, 2023, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed David E. Sorkin 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 is a global supplier of security screening products and solutions. Complainant has used the RAPIDSCAN mark and the RAPIDSCAN SYSTEMS trade name in connection with its goods and services since 1993. Complainant uses the domain name <rapidscansystems.com> for its main corporate website. Complainant owns trademark registrations for RAPIDSCAN in standard character form in the United States and other jurisdictions, and asserts common law rights in the RAPIDSCAN SYSTEMS trade name arising from long and consistent use.
The disputed domain name <rapicsansystems.com> was registered in November 2022. The name is registered in the name of a privacy registration service on behalf of Respondent. The address and telephone number provided by Respondent both appear to be invalid, and Complainant alleges that the name "butcher butcher" is also likely false. The domain name does not resolve to a website. Complainant states that Respondent is not commonly known by the domain name, is not affiliated with Complainant, and is not licensed or authorized to use Complainant's mark.
Complainant contends on the above grounds that the disputed domain name <rapicsansystems.com> is confusingly similar to its RAPISCAN mark; that Respondent lacks rights or legitimate interests in the disputed domain name; and that the disputed domain name was registered and is being used in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that the disputed domain name is confusingly similar to a mark in which Complainant has rights; that Respondent lacks rights or legitimate interests in respect of the disputed domain name; and that the disputed domain name was registered and is being used in bad faith.
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 Overview of WIPO Panel Views on Selected UDRP Questions, § 4.3 (3d ed. 2017), available at http://www.wipo.int/amc/en/domains/search/overview3.0/; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (dismissing complaint where complainant failed to "produce clear evidence to support its subjective allegations").
The disputed domain name <rapicsansystems.com> incorporates Complainant's registered RAPISCAN trademark, transposing two letters and adding the generic term "SYSTEMS" and the ".com" top-level domain. These alterations do not substantially diminish the similarity between the domain name and Complainant's mark. See, e.g., Verint Systems, Inc. v. Domains By Proxy, LLC / Mastercard Jean, D2022-0933 (WIPO May 11, 2022) (finding <verintssystems.com> confusingly similar to VERINT); Securian Financial Group, Inc. v. Carolina Rodrigues / Fundacion Comercio Electronico, FA 1984279 (Forum Mar. 25, 2022) (finding <secruianadvisor.com> confusingly similar to SECURIAN). The Panel considers the disputed domain name to be confusingly similar to Complainant's registered RAPISCAN mark, and therefore need not assess the sufficiency of Complainant's rights in its RAPISCAN SYSTEMS trade name.
Under the Policy, the Complainant must first make a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain name, and then the burden shifts to the Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Productions, Inc. v. Entertainment Commentaries, FA 741828 (Forum Aug. 18, 2006).
The disputed domain name incorporates a misspelling of Complainant's registered mark without authorization. Respondent does not appear to have made any active use of the domain name, nor to have engaged in preparations for such use, suggesting that Respondent lacks rights or legitimate interests in the domain name. See, e.g., Generac Power Systems, Inc. v. Matias Prieto, FA 2048017 (Forum July 16, 2023) (finding lack of rights or interests in similar circumstances); McGuireWoods LLP v. Scott Mark, FA 2044900 (Forum June 16, 2023) (same).
Complainant has made a prima facie case that Respondent lacks rights and legitimate interests in the domain name, and Respondent has failed to come forward with any evidence of such rights or interests. Accordingly, the Panel finds that Complainant has sustained its burden of proving that Respondent lacks rights or legitimate interests in respect of the disputed domain name.
Finally, Complainant must show that the disputed domain name was registered and is being used in bad faith. Under paragraph 4(b)(iii) of the Policy, bad faith may be shown by evidence that Respondent registered the disputed domain name "primarily for the purpose of disrupting the business of a competitor." Under paragraph 4(b)(iv), bad faith may be shown by evidence that "by using the domain name, [Respondent] intentionally attempted to attract, for commercial gain, Internet users to [Respondent's] web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of [Respondent's] web site or location or of a product or service on [Respondent's] web site or location."
Respondent used a privacy registration service and false underlying registration data to register a domain name incorporating a misspelling of Complainant's registered mark, in an apparent instance of typosquatting. Respondent does not appear to have made any active use of the domain name and has failed to come forward with any explanation for its selection of or intended use for the name. Such circumstances are indicative of bad faith registration and use under the Policy. See, e.g., Generac Power Systems, Inc. v. Matias Prieto, supra (finding bad faith registration and use in similar circumstances); McGuireWoods LLP v. Scott Mark, supra (same). The Panel so finds.
Having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <rapicsansystems.com> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: July 27, 2023
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