DECISION

 

The Nature Conservancy v. Pascal Flamur Musaj

Claim Number: FA2310002067600

PARTIES

Complainant is The Nature Conservancy ("Complainant"), represented by Alberto Zacapa of DLA Piper LLP, District of Columbia, USA. Respondent is Pascal Flamur Musaj ("Respondent"), Switzerland.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <tncearthday.org>, ('the Domain Name') registered with Dynadot Inc.

 

PANEL

The undersigned certifies that they have acted independently and impartially and to the best of their knowledge have no known conflict in serving as Panelist in this proceeding.

 

Dawn Osborne as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to Forum electronically on October 24, 2023; Forum received payment on October 24, 2023.

 

On October 24, 2023, Dynadot Inc confirmed by e-mail to Forum that the <tncearthday.org> Domain Name is registered with Dynadot Inc and that Respondent is the current registrant of the name. Dynadot Inc has verified that Respondent is bound by the Dynadot 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 October 30, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 20, 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@tncearthday.org. Also on October 30, 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 November 21, 2023 pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Dawn Osborne 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.

 

RELIEF SOUGHT

Complainant requests that the Domain Name be transferred from Respondent to Complainant.

 

PARTIES' CONTENTIONS

A. Complainant

The Complainant's contentions can be summarized as follows:

 

The Complainant is the owner of the mark TNC registered, inter alia, in the USA for conservation related services with first use recorded as 2018.

 

The Domain Name registered in 2023 is confusingly similar to the Complainant's mark adding only the term 'earthday' which is a common word in conservation circles and also the name of an event that the Complainant has hosted, and the gTLD ".org" neither of which prevents this confusing similarity.

 

The Respondent does not have rights or legitimate interests in the Domain Name, is not commonly known by the Domain Name and is not authorized by the Complainant.

 

The Domain Name has been used for commercial adult content referencing 'Miami escort services'. This is not a bona fide offering of goods or services or a legitimate noncommercial fair use.

 

Respondent registered and is using the Domain Name in bad faith to drive traffic to Respondent's adult orientated web site for Respondent's financial gain.

 

B. Respondent

Respondent failed to submit a Response in this proceeding.

 

FINDINGS

The Complainant is the owner of the mark TNC registered, inter alia, in the USA for conservation related services with first use recorded as 2018. It has hosted an event called 'Earthday'.

 

The Domain Name registered in 2023 has been pointed to adult commercial content.

 

 

 

DISCUSSION

Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted and 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").

 

 

 

 

Identical and/or Confusingly Similar

 

The Domain Name in this Complaint combines the Complainant's TNC mark (registered, inter alia, in the USA for conservation services with first use recorded as 2018), 'earthday' and the gTLD ".org." 

 

The addition of 'earthday' the name of an event that the Complainant has hosted does not serve to distinguish the Domain Name from the Complainant's mark which is still recognizable in the mark.  See Chex Systems, Inc. v. Rony Daniel / Outdoor Living Inc, FA1633760 (Forum, Sept. 16, 2015) (finding the domain name> confusingly similar to the Complainant's mark because it included the distinctive "CHEX" portion of the mark).

 

The gTLD ".org" does not serve to distinguish the Domain Name from the Complainant's mark, which is the distinctive component of the Domain Name. See Red Hat Inc v Haecke FA 726010 (Forum July 24, 2006) (concluding that the redhat.org domain name is identical to the complainant's red hat mark because the mere addition of the gTLD was insufficient to differentiate the disputed domain name from the mark).

 

Accordingly, the Panel finds that the Domain Name is confusingly similar to a mark in which the Complainant has rights for the purposes of the Policy.

 

Rights or Legitimate Interests

 

The Respondent is not authorized by the Complainant and is not commonly known by the Domain Name. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum September 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).The use of the Domain Name is commercial and is not legitimate noncommercial fair use.

 

The Complainant has adduced evidence that the Domain Name has been used for adult content. The use of a domain name containing a mark with a reputation to resolve to adult orientated material cannot constitute a bona fide use. See Altria Group, Inc. and Altria Group Distribution Company v xiazihong, FA 1732665 (Forum July 7, 2017). 

 

 The Respondent has not answered this Complaint or offered any explanation to rebut the prima facie case evidenced by the Complainant as set out herein.

 

As such the Panelist  finds that the Respondent does not have rights or a legitimate interest in the Domain Name and that the Complainant has satisfied the second limb of the Policy. 

 

Registration and Use in Bad Faith

 

The reference by the Respondent to the name of the Complainant's event 'earthday' shows that the Respondent was aware of the Complainant and its rights, business and services at the time of registration of the Domain Name.

 

Use of a domain name containing a trade mark in relation to a web page hosting adult material is evidence of bad faith registration and use under Policy 4 (b)(iii). See Molson Canada 2005 v JEAN LUCAS/DOMCHARME GROUP, FA 1412001596702 (Forum Feb 10, 2015). The fact that the Respondent's web site looks different to the Complainant is not relevant where a complainant's trade mark has been used for adult content.

 

As such, the Panelist believes that the Complainant has made out its case that the Domain Name was registered and used in bad faith and has satisfied the third limb of the Policy.

 

 

DECISION

Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.

 

Accordingly, it is Ordered that the <tncearthday.org> domain name be TRANSFERRED from Respondent to Complainant.

 

 

 

 

Dawn Osborne, Panelist

Dated: November 21, 2023