DECISION

 

PureSpectrum v. Ocie Koelpin

Claim Number: FA2502002141115

 

PARTIES

Complainant is PureSpectrum ("Complainant"), represented by Mark A. Wright of McLane Middleton, New Hampshire, USA. Respondent is Ocie Koelpin ("Respondent"), Maryland, USA.

 

REGISTRAR AND DISPUTED DOMAIN NAMES 

The domain names at issue are <pure-spectrums.com>, <pure-spectrums.net>, and <pure-spectrumz.net> ("Domain Names") registered with Dominet (HK) Limited.

 

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.

 

Nicholas J.T. Smith as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to Forum electronically on February 20, 2025; Forum received payment on February 20, 2025.

 

On February 20, 2025, Dominet (HK) Limited confirmed by e-mail to Forum that the <pure-spectrums.com>, <pure-spectrums.net>, and <pure-spectrumz.net> domain names are registered with Dominet (HK) Limited and that Respondent is the current registrant of the names. Dominet (HK) Limited has verified that Respondent is bound by the Dominet (HK) Limited 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 February 21, 2025, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 13, 2025 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@pure-spectrums.com, postmaster@pure-spectrums.net, and postmaster@pure-spectrumz.net. Also on February 21, 2025, 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 March 14, 2025, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Nicholas J.T. Smith 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 Names be transferred from Respondent to Complainant.

 

PARTIES' CONTENTIONS

A. Complainant

Since 2016 Complainant has provided a variety of business and market research services under the PURESPECTRUM mark. Complainant has rights in the PURESPECTRUM mark through Complainant's registration of the mark with the United States Patent and Trademark Office ("USPTO") (e.g., Reg. No. 5,035,738, registered September 6, 2016). Respondent's <pure-spectrums.com>, <pure-spectrums.net>, and <pure-spectrumz.net> Domain Names are each confusingly similar to Complainant's mark as each of them each wholly incorporates the PURESPECTRUM mark and add a generic top-level domain ("gTLD") and additional letters such as "s" and "z" to create a minor misspelling.

 

Respondent lacks rights or legitimate interests in the Domain Names. Respondent is not commonly known by the Domain Names, nor has Respondent been authorized by Complainant to use the PURESPECTRUM mark. Respondent has not used the Domain Names in connection with a bona fide offering of goods or services or legitimate non-commercial or fair use but instead passes off as Complainant on the Domain Names' resolving websites ("Respondent's Websites") where it reproduces Complainant's mark, logo and address and purports to offer competing market research services.

 

Respondent registered and uses the Domain Names in bad faith. Respondent passes off as Complainant by reproducing Complainant's mark, logo and address on the Respondent's Websites, taking advantage of the goodwill associated with the PURESPECTRUM mark. Given the use of the Domain Names to pass off as Complainant at the time of registration Respondent had actual knowledge of Complainant's rights in the PURESPECTRUM mark at the time of registration of the Domain Names.

 

B. Respondent

Respondent failed to submit a Response in this proceeding.

 

FINDINGS

Complainant holds trademark rights for the PURESPECTRUM mark. Each of the Domain Names is confusingly similar to Complainant's PURESPECTRUM mark. Complainant has established that Respondent lacks rights or legitimate interests in the Domain Names and that Respondent registered and has used the Domain Names in bad faith.

 

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 has rights in the PURESPECTRUM mark based on registration with the USPTO (e.g. Reg. No. 5,035,738, registered September 6, 2016). Registration of a mark with the USPTO sufficiently confers a complainant's rights in a mark for the purposes of Policy ¶ 4(a)(i). See Target Brands, Inc. v. jennifer beyer, FA 1738027 (Forum July 31, 2017) ("Complainant has rights in its TARGET service mark for purposes of Policy ¶ 4(a)(i) by virtue of its registration of the mark with a national trademark authority, the United States Patent and Trademark Office ("USPTO").").

 

The Panel finds that each of the Domain Names is confusingly similar to the PURESPECTRUM mark. Each of the <pure-spectrums.com>, <pure-spectrums.net>, and <pure-spectrumz.net> domain names wholly reproduces the PURESPECTRUM mark and adds a hyphen, a single letter ("s" or "z") to create a minor misspelling, and a gTLD. Addition of a gTLD to a misspelling of a trademark is generally insufficient to negate confusing similarity between a domain name and a mark under Policy ¶ 4(a)(i). See Morgan Stanley v. Domain Admin / Whois Privacy Corp., FA 1783121 (Forum June 1, 2018) ("Respondent's <morganstanle.com> domain name is confusingly similar to Complainant's MORGAN STANLEY mark as it wholly incorporates the mark, but for the omission of the letter 'y' and spacing within the mark, and appends the '.com' gTLD."); see also Wells Fargo & Company v. VALERIE CARRINGTON, FA 1621718 (Forum July 2, 2015) (finding that the <wllsfago.com> domain name is confusingly similar to the WELLS FARGO mark as the domain name merely omits the "e" and "r" from the mark while adding the ".com" gTLD suffix.).

 

The Panel finds Complainant has satisfied Policy ¶ 4(a)(i).

 

Rights or Legitimate Interests

Complainant alleges that Respondent holds no rights or legitimate interests in the Domain Names. In order for Complainant to succeed under this element, it must first make a prima facie case that Respondent lacks rights and legitimate interests in the Domain Names under Policy ¶ 4(a)(ii), and then the burden shifts to Respondent to show it does have rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm't Commentaries, FA 741828 (Forum Aug. 18, 2006) and AOL LLC v. Gerberg, FA 780200 (Forum Sept. 25, 2006) ("Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names."). The Panel holds that Complainant has made out a prima facie case.

 

Complainant asserts that Respondent has no rights or legitimate interests in the Domain Names as Respondent is not commonly known by the Domain Names, nor has Complainant authorized Respondent to use the PURESPECTRUM mark. Respondent has no relationship, affiliation, connection, endorsement or association with Complainant. WHOIS information can help support a finding that a respondent is not commonly known by the disputed domain name, especially where a privacy service has been engaged. See State Farm Mutual Automobile Insurance Company v. Dale Anderson, FA1504001613011 (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)); see also Kohler Co. v. Privacy Service, FA1505001621573 (Forum July 2, 2015) (holding that the respondent was not commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii) where "Privacy Service" was listed as the registrant of the disputed domain name). The WHOIS lists "Ocie Koelpin" as the registrant of record. Coupled with Complainant's unrebutted assertions as to absence of any affiliation or authorization between the parties, the Panel finds that Respondent is not commonly known by the Domain Names in accordance with Policy ¶ 4(c)(ii).

 

The Domain Names are presently inactive but prior to the commencement of the proceeding resolved to the Respondent's Websites that through the reproduction of the Complainant's PURESPECTRUM mark, logo and address of the Complainant, pass themselves off as official websites of the Complainant for the purposes of offering competing services.  Respondent's use of the Domain Names to impersonate Complainant, for the purpose of offering competing services is not a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii). See Am. Int'l Group, Inc. v. Busby, FA 156251 (Forum May 30, 2003) (finding that the respondent attempts to pass itself off as the complainant online, which is blatant unauthorized use of the complainant's mark and is evidence that the respondent has no rights or legitimate interests in the disputed domain name). 

 

The Panel finds Complainant has satisfied Policy ¶ 4(a)(ii).

 

Registration and Use in Bad Faith

The Panel finds on the balance of probabilities that, at the time it registered the Domain Names, December 1, 2024, Respondent had actual knowledge of Complainant's PURESPECTRUM mark. The Respondent used the Domain Names to pass itself off as Complainant for financial gain or to disrupt Complainant's business. In the absence of rights or legitimate interests of its own, this demonstrates registration in bad faith under Policy ¶ 4(a)(iii).

 

The Panel finds that Respondent registered and used the Domain Names in bad faith as Respondent used the Domain Names to impersonate Complainant and offer services that directly compete with Complainant's services. Use of a confusingly similar domain name to trade upon the goodwill of a complainant can evince bad faith under Policy ¶ 4(b)(iv). See Bittrex, Inc. v. Wuxi Yilian LLC, FA 1760517 (Forum December 27, 2017) (finding bad faith per Policy ¶ 4(b)(iv) where "Respondent registered and uses the <lbittrex.com> domain name in bad faith by directing Internet users to a website that mimics Complainant's own website in order to confuse users into believing that Respondent is Complainant or is otherwise affiliated or associated with Complainant.").

 

Accordingly, the Panel finds that Respondent registered and uses the Domain Names in bad faith pursuant to 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 <pure-spectrums.com>, <pure-spectrums.net>, and <pure-spectrumz.net> domain names be TRANSFERRED from Respondent to Complainant.

 

 

 

Nicholas J.T. Smith, Panelist

Dated: March 15, 2025