DECISION

 

Stumptown Coffee Corp. v. AdventureA Sports / Richard S Augustine

Claim Number: FA2407002105545

 

PARTIES

Complainant is Stumptown Coffee Corp. ("Complainant"), represented by Michael J. McCue of LEWIS ROCA ROTHGERBER CHRISTIE LLP, Nevada, USA. Respondent is AdventureA Sports / Richard S Augustine ("Respondent"), California, USA.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <stumtpowncoffee.com>, 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.

 

Richard Hill as Panelist.

 

PROCEDURAL HISTORY

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

 

On July 10, 2024, NameSilo, LLC confirmed by e-mail to Forum that the <stumtpowncoffee.com> 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 July 10, 2024, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 30, 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@stumtpowncoffee.com. Also on July 10, 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 July 31, 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 operates an online store and physical coffee shops in the United States and Japan. Since its beginning, Complainant has pioneered the Direct Trade model of sourcing green coffee. Complainant prides itself on its relationships with its producers which has translated into a trusted brand among consumers. Complaint asserts rights in the STUMPTOWN and STUMPTOWN COFFEE ROASTERS marks through their registration in the United States in, respectively, 2004 and 2020. The marks are registered elsewhere around the world.

 

Complainant alleges that the disputed domain name is confusingly similar to its STUMPTOWN mark as it consists of a misspelling of the mark (the letters "P" and "T" are transposed), merely adding the generic/descriptive term "coffee" together with the generic top-level domain name ("gTLD") ".com".

 

According to Complainant, Respondent does not have rights or legitimate interests in the disputed domain name. Respondent is not licensed or authorized to use Complainant's mark and is not commonly known by the disputed domain name. Respondent does not use the disputed domain name for a bona fide offering of goods or services or a legitimate noncommercial or fair use. Instead, the resolving website displays pay-per-click advertising hyperlinks to products that compete with those of Complainant.

 

Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith. The resolving website displays competing advertising links.

 

B. Respondent

Respondent failed to submit a Response in this proceeding.

 

FINDINGS

Complainant owns the mark STUMPTOWN, with rights dating back to 2004 and uses it to market coffee.

 

The disputed domain name was registered in 2024.

 

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

 

The resolving website displays pay-per-click advertising hyperlinks for products that compete with those of Complainant.

 

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 consists of a misspelling of Complainant's STUMPTOWN mark (the letters "P" and "T" are transposed), merely adding the generic/descriptive term "coffee" together with the generic top-level domain name ("gTLD") ".com". Including a trademark, even if misspelled, in a domain name, and adding descriptive/generic terms, does not distinguish the domain name from the mark under Policy ¶ 4(a)(i). See Morgan Stanley v. Francis Mccarthy / Baltec Marine Llc, FA 1785347 (Forum June 8, 2018) ("The [<morganstonley.com> and <morganstainley.com>] Domain Names are confusingly similar to Complainant's marks, as they fully incorporate the MORGAN STANLEY mark, varying it only by subtle misspellings, omitting a space between the words, and adding the generic top-level domain ("gTLD") '.com.'"); see also MTD Products Inc v J Randall Shank, FA 1783050 (Forum June 27, 2018) ("The disputed domain name is confusingly similar to Complainant's mark as it wholly incorporates the CUB CADET mark before appending the generic terms 'genuine' and 'parts' as well as the '.com' gTLD."). Therefore the Panel finds that the disputed domain name is confusingly similar to Complainant's mark under Policy ¶ 4(a)(i).

 

Rights or Legitimate Interests

Respondent is not licensed or otherwise authorized to use Complainant's mark and 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 State Farm Mutual Automobile Insurance Company v. Dale Anderson, FA 1613011 (Forum May 21, 2015) (concluding that because the WHOIS record lists "Dale Anderson" as the registrant of the disputed domain name, the respondent was not commonly known by the <statefarmforum.com> domain name pursuant to Policy ¶ 4(c)(ii)). Here, the WHOIS information for the disputed domain name lists the registrant as "AdventureA Sports / Richard S Augustine". Thus the Panel finds that Respondent is not commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii).

 

The resolving website displays advertising hyperlinks for products that compete with those of Complainant. Use of a domain name to redirect users to unrelated third-party sites (whether or not they compete with Complainant) is not a bona fide offering of goods or services or a legitimate noncommercial or fair use. SeeTrulia, Inc. v. Armen A, FA 1586491 (Forum Dec. 2, 2014) (finding that a parked page containing pay-per-click advertising links that resolve to the websites of Complainant's competitors did "not constitute a Policy ¶ 4(c)(i) bona fide offering of goods or services, or a Policy ¶ 4(c)(iii) legitimate noncommercial fair use"); see also Constellation Wines U.S., Inc. v. Tex. Int'l Prop. Assocs., FA 948436 (Forum May 8, 2007) (finding that the respondent had no rights or legitimate interests under Policy ¶¶ 4(c)(i) or 4(c)(iii) by using the disputed domain name to operate a website featuring links to goods and services unrelated to the complainant); see also Coachella Music Festival, LLC v. josh greenly / All Access Tickets, FA 1629217 (Forum Aug. 10, 2015) (finding that the respondent had failed to provide a bona fide offering of goods or services or a legitimate noncommercial or fair use of the disputed domain name as required under Policy ¶ 4(c)(i) and Policy ¶ 4(c)(iii), where the respondent was using the disputed domain name to host a web page that featured links to services that competed with those of the complainant). 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 per Policy ¶ 4(c)(i) and 4(c)(iii)). And the Panel finds that Respondent 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 silence 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 resolving website displays advertising links to products that compete with those of Complainant. Use of a disputed domain name to redirect consumers to competing goods or services can be evidence of bad faith disruption of a complainant's business under Policy ¶ 4(b)(iii) and an attempt to attract users for commercial gain under Policy ¶ 4(b)(iv). See Guidehouse LLP v. Zhi Chao Yang, FA 2013476 (Forum Oct. 31, 2022) ("[T]he resolving website displays advertising links to competing services. This constitutes bad faith registration and use under Policy ¶ 4(b)(iv)."); see also block.one v. Negalize Interactive Things, FA 1798280 (Forum Aug. 21, 2018) ("Offering links to competing products or services can demonstrate bad faith under Policy ¶ 4(b)(iii) where a respondent registers a domain name that is confusingly similar to the mark of another."); see also Capital One Financial Corp. v. DN Manager / Whois-Privacy.Net Ltd, FA 1615034 (Forum June 4, 2015) (holding that the respondent's use of the <capitaloneonebank.com> domain name to display links to the complainant's competitors, such as Bank of America, Visa, Chase and American Express constituted bad faith pursuant to Policy ¶ 4(b)(iv)); see also Capital One Financial Corp. v. Above.com Domain Privacy / Above.com Domain Privacy, FA 1598657 (Forum Feb. 20, 2015) ("This Panel agrees that Respondent's use as shown in Exhibits C-D illustrates that Respondent here seeks commercial gain through a likelihood of confusion, as competing hyperlinks have been found to establish evidence of intent to seek commercial gain through referral fees, and thus demonstrates bad faith registration under Policy ¶ 4(b)(iv)."). Therefore the Panel finds that Respondent registered and uses the disputed domain name in bad faith per Policy ¶ 4(b)(iii) and/or (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 <stumtpowncoffee.com> domain name be TRANSFERRED from Respondent to Complainant.

 

 

 

Richard Hill, Panelist

Dated: July 31, 2024