DECISION

 

SPX FLOW US, LLC v. Suwandi Suwandi

Claim Number: FA2401002078435

 

PARTIES

Complainant is SPX FLOW US, LLC ("Complainant"), represented by Jacqueline M. Lesser of Ice Miller LLP, Pennsylvania, USA. Respondent is Suwandi Suwandi ("Respondent"), Indonesia.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <posilock.com>, registered with GoDaddy.com, LLC.

 

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.

 

Richard Hill as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to Forum electronically on January 9, 2024; Forum received payment on January 9, 2024.

 

On January 10, 2024, GoDaddy.com, LLC confirmed by e-mail to Forum that the <posilock.com> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, 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 January 12, 2024, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 1, 2024 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@posilock.com. Also on January 12, 2024, 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 February 2, 2024, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Richard Hill 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

Complainant states that it is a Delaware corporation with its global headquarters in Charlotte, North Carolina, and offices and manufacturing facilities around the world. Complainant itself or through its predecessor-in-interest has been using the trademark POSI LOCK since at least as early as 1978, for a variety of goods and services, including hand-operated gear and bearing pullers and hydraulic gear and bearing pullers. Complainant asserts rights in the POSI LOCK mark through its registration in the United States in 1990.

 

Complainant alleges that the disputed domain name is identical or confusingly similar to its POSI LOCK mark, as it incorporates the mark in its entirety and merely adds the ".com" generic top-level domain ("gTLD").

 

According to Complainant, Respondent lacks rights or legitimate interests in the disputed domain name, as Respondent is not commonly known by the disputed domain name, Complainant is not associated with Respondent, and has not authorized, licensed, or otherwise given permission for Respondent to use its mark. There is also no offering of a bona fide offering of goods or services or legitimate noncommercial or fair use of the disputed domain name because the disputed domain name resolves to a website that displays a list of historic online gambling sites available in Indonesia, and links to third party gambling sites.

 

According to Complainant, Respondent registered and is using the disputed domain name in bad faith. The disputed domain name is used to disrupt Complainant's business by diverting customers and offering gambling services for commercial gain.

 

B. Respondent

Respondent failed to submit a Response in this proceeding.

 

FINDINGS

Complainant owns rights in the mark POSI LOCK dating back to at least 1990 and uses it to provide a variety of goods and services, including hand-operated gear and bearing pullers and hydraulic gear and bearing pullers.

 

The disputed domain name was registered in 1998.

 

Complainant has not licensed or otherwise authorized Respondent to use its mark.

 

The disputed domain name resolves to a website that offers gambling services.

 

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 disputed domain name incorporates Complainant's POSI LOCK mark in its entirety and merely adds the ".com" generic top-level domain ("gTLD"). This does not distinguish the disputed domain name from the mark under Policy ¶ 4(a)(i). See Dell Inc. v. Protection of Private Person, FA 1681432 (Forum Aug. 1, 2016) ("A TLD (whether a gTLD, sTLD or ccTLD) is disregarded under a Policy ¶ 4(a)(i) analysis because domain name syntax requires TLDs"); see also Abbott Labs v. Whois Svc., FA 1254682 (Forum May 14, 2009) ("the addition of a gTLD is irrelevant in distinguishing a disputed domain name from a registered mark"); see also Twitter, Inc. v. Jie, FA 1919786 (Forum Dec. 9, 2020) ("The Panel considers the disputed domain name [<twitter.luxe>] to be identical to Complainant's registered [TWITTER] trademark"). Thus the Panel finds that the disputed domain name is identical to Complainant's mark under Policy ¶ 4(a)(i).

 

Rights or Legitimate Interests

Complainant has not licensed or otherwise authorized Respondent to use its mark. Respondent is not commonly known by the disputed domain name: under Policy ¶ 4(c)(ii), WHOIS information may be used to determine whether a Respondent is commonly known by the disputed domain name. See Chevron Intellectual Property LLC v. Fred Wallace, FA 1626022 (Forum July 27, 2015) (finding that the respondent was not commonly known by the <chevron-europe.com> domain name under Policy ¶ 4(c)(ii), as the WHOIS information named "Fred Wallace" as registrant of the disputed domain name). Here, the WHOIS information for the disputed domain name lists the registrant as "Suwandi Suwandi". Therefore the Panel finds that Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii).

 

The disputed domain name resolves to a website that offers gambling services. Previous Panels have found that this is not a bona fide or legitimate noncommercial or fair use of a disputed domain name. See Seiko Kabushiki Kaisha v. CS into Tech, FA 198795 (Forum Dec. 6, 2003) (Respondent's domain name "resolves to a Chinese-language website advertising games or gambling.); see also Spike's Holding, LLC v. Nexperian Holding Limited, FA 1736008 (Forum July 21, 2017) ("Using a confusingly similar domain to display unrelated content can evince a lack of a bona fide offering of goods or services or legitimate noncommercial or fair use… The Panel therefore finds that Respondent's unrelated use of the <finishnline.com> domain name evinces a lack of rights and legitimate interests under Policy ¶ 4(c)(i) & (iii)."). Thus the Panel finds that Respondent fails to use the disputed domain name to make a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶4(c)(i) or (iii). And the Panel finds that Complainant does not have rights or legitimate interests in the disputed domain name.

 

Registration and Use in Bad Faith

Respondent (who did not reply to Complainant's contentions) has not presented any plausible explanation for its use of Complainant's mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent's failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain name.

 

Indeed, as already noted, the disputed domain name resolves to a website that offers gambling services. This is evidence of bad faith registration and use under Policy ¶ 4(b)(iv). See Oki Electric Industry Co., Ltd. v. Elizabeth Dobson, FA 1989201 (Forum May. 2, 2022) ("the Panel determines that the disputed domain name's deceptive redirection of internet users to Respondent's website, which offers links to online gambling websites, is deliberately designed for Respondent's commercial gain.  Therefore, the Panel finds that the disputed domain name was registered and is being used in bad faith under Policy ¶ 4(b)(iv)."); see also Mars, Inc. v. Double Down Magazine, D2000-1644 (WIPO Jan. 24, 2001) (finding bad faith under Policy ¶ 4(b)(iv) where the respondent linked the domain name <marssmusic.com>, which is identical to the complainant's mark, to a gambling website); see also Qwest Comm'ns Int'l Inc. v. Ling Shun Shing, FA 187431 (Forum Oct. 6, 2003) ("Respondent has attempted to commercially benefit from the misleading <qwestwirless.com> domain name by linking the domain name to adult oriented websites, gambling websites, and websites in competition with Complainant.  Respondent's attempt to commercially benefit from the misleading domain name is evidence of bad faith pursuant to Policy ¶ 4(b)(iv)."). Thus the Panel finds bad faith use and registration under Policy ¶4(b)(iv).

 

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 <posilock.com> domain name be TRANSFERRED from Respondent to Complainant.

 

 

 

Richard Hill, Panelist

Dated: February 2, 2024