DECISION

 

Auradine, Inc. v. SpeedHost247 / SpeedHost247 Web Hosting

Claim Number: FA2506002163519

 

PARTIES

Complainant is Auradine, Inc. ("Complainant"), represented by Farah P. Bhatti of Buchalter Nemer, California, USA. Respondent is SpeedHost247 / SpeedHost247 Web Hosting ("Respondent"), Florida, USA.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <teraflux.com>, registered with Dominet (HK) Limited.

 

PANEL

The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.

 

Charles A. Kuechenmeister, Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to Forum electronically on June 30, 2025; Forum received payment on June 30, 2025.

 

On July 2, 2025, Dominet (HK) Limited confirmed by e-mail to Forum that the <teraflux.com> domain name is registered with Dominet (HK) Limited and that Respondent is the current registrant of the name. 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 July 7, 2025, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint setting a deadline of July 28, 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@teraflux.com. Also on July 7, 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 July 29, 2025, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Charles A. Kuechenmeister 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 a Response or any other submittal from Respondent.

 

RELIEF SOUGHT

Complainant requests that the domain name be transferred from Respondent to Complainant.

 

PARTIES' CONTENTIONS

A. Complainant

Complainant provides web infrastructure solutions for blockchain, security, and privacy.  It has rights in the TERAFLUX mark based upon its application for registration of that mark with the United States Patent and Trademark Office (USPTO), and by common law based upon its use of that mark in commerce since May 2023. Respondent's <teraflux.com> domain name is identical or confusingly similar to the TERAFLUX mark as it incorporates the entire mark.

 

Respondent has no rights or legitimate interests in the domain name. It has not been commonly known by the domain name, Complainant has not authorized Respondent to use its mark, and Respondent is not using the domain name in connection with a bona fide offering of goods or services or for a legitimate noncommercial or fair use but instead is using it to impersonate Complainant and advertise Complainant's products and services for sale.

 

Respondent registered and uses the domain name in bad faith. It registered and is using the domain name while itself having no connection with Complainant, it is using the domain name to attract for commercial gain Internet users to its website by creating a likelihood of confusion with Complainant's mark as to the source, sponsorship, affiliation or endorsement of its website, it impersonates Complainant and purports to offer Complaint's products and services for sale, and it registered the domain name primarily to disrupt Complainant's business.

 

B. Respondent

Respondent did not submit a Response in this proceeding.

 

FINDINGS

Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted 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 a complainant to prove each of the following three elements to obtain an order cancelling or transferring a domain name:

 

(1) the domain name registered by the respondent is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and

(2) the 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, pursuant to paragraphs 5(f), 14(a) and 15(a) of the Rules the Panel will decide this administrative proceeding on the basis of Complainant's undisputed representations 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. Nevertheless, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. 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"), WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (WIPO Overview 3.0), at ¶ 4.3 ("In cases involving wholly unsupported and conclusory allegations advanced by the complainant, . . . panels may find that—despite a respondent's default—a complainant has failed to prove its case.").  The WIPO Overview is not a definitive statement of applicable law which governs any particular issue, but it does express a consensus among a significant number of UDRP panelists as to how particular issues typically are and should be resolved. This Panel accepts that consensus on this and other issues addressed later in this Decision.

 

The Panel finds as follows with respect to the matters at issue in this proceeding:

 

Identical and/or Confusingly Similar

Complainant has applied for the registration of its TERAFLUX mark with the USPTO  (US Serial No. 98078965) and the application was allowed on July 30, 2024 (TSDR printout submitted as Complaint Exhibit 6). The USPTO has not registered the mark. Complainant alleges that its allowed application is sufficient to establish its rights in the mark. It cites two prior UDRP decisions in support. One of them is Royal Caribbean Cruise, Ltd. v. Gold Anchor Serv., D2003-0443 (WIPO July 17, 2003). In that case the panel held that an allowed application together with a showing of several months use of the mark in commerce was sufficient to establish rights, but it did not hold that the application by itself was sufficient. The actual finding of the panel was, "Mere lodgment of a trademark application may not be enough to establish trademark rights in some cases but here, where the application has been allowed and the mark has been used for at least some months, such rights are established."  The other case cited was Love City Brewing Company v. Anker Fog/Love City Brewing Company, FA 1710001753144 (Forum November 17, 2017). The panel in this case held as follows:  "Complainant claims rights in the mark based upon a pending but received both Notice of Allowance and Notice of Approval trademark application with the United States Patent and Trademark Office ("USPTO"). . . . This Panel is of the view that once the allowance of approval is rendered its trademark right may be considered as dating back to the filing date. The Approved and Allowed application will be sufficient to establish its trademark right with the USPTO."  This case is distinguished from Love City Brewing by the fact that there is no evidence here of an Approval, as was present in Love City. Moreover, the great weight of UDRP jurisprudence developed over the years is very clear that a pending application for registration of a trademark with the USPTO is not sufficient, in and of itself, to establish rights in a mark for the purposes of Policy ¶ 4(a)(i). WIPO 3.O at ¶ 1.1.4 ("A pending trademark application would not by itself establish trademark rights within the meaning of UDRP paragraph 4(a)(i).")

 

Nevertheless, it is well-settled that a complainant need not show registration of its mark to establish rights sufficient to meet the requirements of Policy ¶ 4(a)(i). If proven, common law rights are sufficient to establish rights for the purposes of Policy ¶ 4(a)(i).  Oculus VR, LLC v. Ivan Smirnov, FA 1625898 (Forum July 27, 2015) ("A complainant does not need to hold registered trademark rights in order to have rights in a mark under Policy ¶ 4(a)(i) and it is well established that a Complainant may rely on common law or unregistered trademarks that it can make out".), 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).

 

Common law rights in a trademark can be established by evidence of secondary meaning, which is proven by showing exclusive use of the mark in commerce for a period of time, evidence of advertising and sales, recognition of the mark by customers, unsolicited media attention, or other evidence showing that the relevant consuming public has come to associate the mark with goods or services provided by a single vendor. Karen Koehler v. Hiroshi Ishiura/ Lifestyle Design Inc., FA 1730673 (Forum June 1, 2017) (holding that Complainant established common law rights in her personal name since "[a] mark can generate a secondary meaning sufficient to establish Complainant's rights when consistent and continuous use of the mark has created distinctive and significant good will… Complainant has published under the KAREN KOEHLER name extensively, and Complainant's legal skills have been recognized by various organizations and groups with extensive positive media coverage. Complainant also operates an online blog associated with the KAREN KOEHLER mark."), Gourmet Depot v. DI S.A., FA 1378760 (Forum June 21, 2011) ("Relevant evidence of secondary meaning includes length and amount of sales under the mark, the nature and extent of advertising, consumer surveys and media recognition."). The WIPO Overview 3.0 ¶ 1.3 lists a number of factors that support a claim of common law trademark rights, including "(i) the nature and duration of use of the mark, (ii) the amount of sales under the mark, (iii) the nature and extent of advertising using the mark, (iv) the degree of actual public (e.g., consumer, industry, media) recognition, and (v) consumer surveys."  

 

Complainant states that it has actively promoted its services by using the TERAFLUX mark since at least May 2023.  Complaint Exhibit 11 is a screenshot of Complaint's website located at <auradine.com> on some unspecified date but bearing the copyright notice ©2025 Auradine. The mark TERAFLUX appears nowhere on this site, and there is no other evidence of Complainant's use of the TERAFLUX mark for any purpose,  no evidence of the nature and duration of use of the mark, the amount of sales under the mark, the nature and extent of advertising using the mark, the degree of actual public (e.g., consumer, industry, media) recognition, or consumer surveys.  In short, there is no evidence of common law rights in the mark. Complainant has failed to meet the requirements of Policy ¶ 4(a)(i). 

 

Rights or Legitimate Interests, Registration or Use in Bad Faith

As Complainant has failed to satisfy Policy ¶ 4(a)(i), the Panel may decline to analyze the other elements of the Policy.  Netsertive, Inc. v. Ryan Howard / Howard Technologies, Ltd., FA 1721637 (Forum Apr. 17, 2017) (finding that because the complainant must prove all three elements under the Policy, the complainant's failure to prove one of the elements makes further inquiry into the remaining element unnecessary), Wasatch Shutter Design v. Duane Howell / The Blindman, FA 1731056 (Forum June 23, 2017) (deciding not to inquire into the respondent's rights or legitimate interests or its registration and use in bad faith where the complainant could not satisfy the requirements of Policy ¶ 4(a)(i)). The Panel elects to adopt this approach and does not analyze the other two elements in detail. The Panel does note, however, that the evidence submitted in support of the Policy ¶¶ 4(a)(ii) and 4(a)(iii) elements appears to support Complainant's allegations with respect to those two elements.

 

DECISION

Complainant having failed to establish all three elements required under the Policy, the Panel concludes that relief shall be DENIED.

 

Accordingly, it is Ordered that the <teraflux.com> domain name shall REMAIN WITH Respondent.

 

 

 

Charles A. Kuechenmeister, Panelist

July 30, 2025