DECISION

 

Monkey Loft Lounge LLC v. PBN Monster

Claim Number: FA2405002100426

 

PARTIES

Complainant is Monkey Loft Lounge LLC ("Complainant"), represented by Steven L. Rinehart, Utah, USA. Respondent is PBN Monster ("Respondent"), Singapore.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <monkeyloft.net>, registered with NameSilo, 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.

 

Héctor Ariel Manoff as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to Forum electronically on May 31, 2024; Forum received payment on May 31, 2024.

 

On June 3, 2024, NameSilo, LLC confirmed by e-mail to Forum that the <monkeyloft.net> domain name is registered with NameSilo, LLC and that Respondent is the current registrant of the name. NameSilo, LLC has verified that Respondent is bound by the NameSilo, 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 June 5, 2024, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 25, 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@monkeyloft.net. Also on June 5, 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 June 26, 2024, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Héctor Ariel Manoff 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

 

1. Complainant, Monkey Loft, was incorporated in 2013 and since then has operated a night club and music venue in Seattle.

2. Complainant is the owner of a common law service mark for MONKEY LOFT.

3. Complainant has used the trademark for more than 10 years and has become well-known, particularly in the Seattle area.

4. Respondent registered the disputed domain name on April 20, 2023.

5. Respondent began hosting a website at the disputed domain name impersonating the Complainant and including banner advertisements benefitting the Respondent.

6. The website contains a notice to the owner to contact the Respondent if the Complainant wants changes made to the website.

7. Respondent has registered the disputed domain <monkeyloft.net> in bad faith since it was done with knowledge of the Complainant's notoriety and trademark rights.

8. Respondent has no rights or legitimate interest in the disputed domain name and is not making legitimate noncommercial, or fair use.

9. The disputed domain name wholly incorporates the trademark of the Complainant.

10. Respondent has not been commonly known by the name Monkey Loft and has acquired no trademark or service mark rights in the Complainant's Mark prior to notice of this dispute.

11. Complainant has not authorized, licensed, or otherwise permitted the Respondent to use its mark.

 

B. Respondent

Respondent failed to submit a Response in this proceeding.

 

FINDINGS

Complainant, Monkey Loft, was incorporated in 2013 and since then has operated a night club in Seattle with its common law service mark MONKEY LOFT.

Respondent registered the disputed domain name in 2023 in which it includes photos of Complainant's night club and the entire trademark.

 

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

Complainant asserts common law rights in its MONKEY LOFT mark and provided evidence to prove that the company, Monkey Loft Lounge LLC was incorporated in 2013 (Annex B).

 

Complainant also provided evidence about the use of the trademark MONKEY LOFT to identify a night club (Annexes C, D, E, F and G).

 

This Panel finds that the evidence provided is sufficient to establish common law rights. See Laugo Arms USA, LLC v. Mason Century, FA2405002099335. Common law rights are sufficient to establish rights in a mark under Policy ¶ 4(a)(i). See also  Artistic Pursuit LLC v. calcuttawebdevelopers.com, FA 894477 (Forum Mar. 8, 2007) (finding that Policy ¶ 4(a)(i) does not require a trademark registration if a complainant can establish common law rights in its mark).

 

The disputed domain name incorporates Complainant's MONKEY LOFT mark in its entirely without any other additional element.

 

This Panel finds that Complainant has proved common law rights on MONKEY LOFT and that the disputed domain name is confusingly similar to that trademark.

 

The Panel finds that the domain name is identical and confusingly similar to Complainant marks under Policy ¶ 4(a)(i).

 

Rights or Legitimate Interests

Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), then the burden shifts to Respondent to show it does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) ("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").

 

The Panel finds that Respondent has no rights or legitimate interests in the <monkeyloft.net> domain name because Complainant has not authorized Respondent to use the MONKEY LOFT mark. 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)").

 

The Panel points out that Exhibit H, which it is supposed to refer to DomainTools History Report is empty but the Panel was able to confirm that the domain name was registered under a privacy guard with NameSilo, LLC. Thus, Respondent does not have any trademark rights in the <monkeyloft.net> domain name and according to the information available on Whois Respondent is not named or commonly known by the business name MONKEY LOFT. See Chevron Intellectual Property LLC v. Fred Wallace, FA1506001626022 (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). 

 

The evidence submitted by Complainant shows that Respondent's use of the <monkeyloft.net> domain is not a bona fide offering of goods. (Annex I). Respondent's website at the disputed domain name includes Complainant's photos and trademark.

 

This Panel finds that the purpose of the disputed domain name is to try to show that the disputed domain name is associated with Complainant and that Respondent is not using the domain names in connection with a legitimate noncommercial use or fair use under Policy 4(c)(iii).

 

Therefore, the Panel agrees that Respondent is not commonly known by the disputed domain name does not have legitimate interest under Policy ¶ 4(a)(ii).

 

Registration and Use in Bad Faith

The domain registration by Respondent was done in 2023 according to the information available on Whois, it is ten years after Complainant's beginning of use of its trademark MONKEY LOFT on which Complainant has proved common law rights.

 

The <monkeyloft.net> domain name was registered by including the exact mark and there are photos of Complainant's MONKEY LOFT night club on Respondent's website (Annex I). See Nautica Apparel, Inc. v. Web Commerce Communications Limited / Client Care - Claim Number: FA2402002084211 - On the resolving website, Respondent uses the NAUTICA trademarks and images of products bearing NAUTICA trademarks. Respondent has no reason to use the NAUTICA trademarks in the domain names or on the associated website other than to attract internet users to its site for commercial gain. Thus, Respondent is intentionally trying to create a likelihood of confusion with the Complainant's trademark as to the source, sponsorship, affiliation, or endorsement.

 

The Panel finds bad faith in these two circumstances.

 

In addition, the website includes advertisements so Respondent is using the disputed domain name with an intention to divert consumers of Complainant's services to Respondent's site and to take economical advantages by using Complainant's trademark.

 

The Panel determines that Respondent registered and used the disputed domain name in bad faith under Policy ¶ 4(a)(iii).

 

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 <monkeyloft.net> domain name be TRANSFERRED from Respondent to Complainant.

 

 

 

Héctor Ariel Manoff, Panelist

Dated: July 1st, 2024