DECISION

 

Cake Insure, Inc. v. J Hsu

Claim Number: FA2510002182982

 

PARTIES

Complainant is Cake Insure, Inc. ("Complainant"), represented by Benjamin Lieb of Talus Law Group LLC, Colorado, USA. Respondent is J Hsu ("Respondent"), represented by Roger Hauptman of Hauptman, LLC, Colorado, USA.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <everpeak.com>, registered with Squarespace Domains II LLC.

 

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.

 

Alan L. Limbury, as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to Forum electronically on October 14, 2025. Forum received payment on October 14, 2025.

 

On October 15, 2025, Squarespace Domains II LLC confirmed by e-mail to Forum that the <everpeak.com> domain name is registered with Squarespace Domains II LLC and that Respondent is the current registrant of the name. Squarespace Domains II LLC has verified that Respondent is bound by the Squarespace Domains II 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 October 16, 2025, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 10, 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@everpeak.com. Also on October 16, 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 November 11, 2025, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Alan L. Limbury 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 provides workers' compensation insurance services for small businesses. Complainant has established common law rights in its EVERPEAK INSURANCE and EVERPEAK trademarks through long term, continuous and exclusive use of these trademarks in commerce in the United States. Since at least as early as May 2024, Complainant has continuously used the EVERPEAK trademark in the United States in connection with the provision of workers' compensation insurance and related services, including in underwriting workers' compensation insurance and insurance claims adjusting services. Complainant operates the website at "www.everpeakinsurance.com".

 

The <everpeak.com> domain name is confusingly similar to Complainant's EVERPEAK INSURANCE and EVERPEAK marks.

 

Respondent has no rights or legitimate interest in the <everpeak.com> domain name, which was registered on January 3, 2002, but as shown by the search results for <everpeak.com> at archive.org, the <everpeak.com> domain has resolved to a registrar-hosted parked page since then and has been completely inactive since 2016. It currently resolves to an inactive site. In short, there is no evidence of any website associated with the domain name showing that Respondent has any trademark or trade name rights in "everpeak" or any other legitimate interest in the <everpeak.com> domain name. Likewise, the WHOIS information for Respondent from icann.org does not show that Respondent is named or known as "everpeak." This evidences that Respondent is not commonly known by the domain name. Respondent is not affiliated with Complainant and has not been authorized or licensed by Respondent [scil. Complainant] to use its EVERPEAK INSURANCE and EVERPEAK marks. In the absence of evidence that a respondent is authorized to use a complainant's mark in a domain name or that a respondent is commonly known by the disputed domain name, the respondent may be presumed to lack rights or legitimate interests in the domain name.

 

Respondent's failure to make an active use of the <everpeak.com> domain name alone is sufficient to show bad faith. Passively holding a confusingly similar domain name can be evidence of bad faith registration for the purposes of Policy ¶ 4(a)(iii). Complainant contacted the Registrant through a GoDaddy aftermarket domain broker in an effort to acquire the <everpeak.com> domain name. The broker represented, in an email to Complainant dated November 10, 2023, that "I contacted the owner of EVERPEAK.COM throughout the month but unfortunately never received a response." Based on these contacts, it can be presumed that Registrant has been aware of Complainant and its EVERPEAK INSURANCE and EVERPEAK marks since at least November 2023. Registrant then renewed the <everpeak.com> domain name in December 2023 and December 2024. Registrant's continued renewal and passive holding of the <everpeak.com> domain name thereafter with notice of Complainant's superior rights constitutes bad faith. See Guidehouse LLP, FA 2505002155164. Respondent has also used a privacy protection service to register the <everpeak.com> domain name, which conceals the true identity of the Registrant. There is no bona fide reason to conceal the identity of an actor in the commercial marketplace. In a commercial context, this raises the rebuttable presumption of bad faith registration and use. If Respondent fails to respond to this Complaint, it is presumed that it has no rights or legitimate interests in the <everpeak.com> domain name.

 

B. Respondent

Respondent failed to submit a Response in this proceeding.

 

FINDINGS

Complainant has failed to establish all the elements entitling it to relief.

 

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 shown that, through extensive use since 2024, it has acquired common law rights in the United States in the EVERPEAK INSURANCE and EVERPEAK marks.

 

It is well accepted that the first element functions primarily as a standing requirement. The standing (or threshold) test for confusing similarity involves a reasoned but relatively straightforward comparison between the complainant's trademark and the disputed domain name. WIPO Overview 3.0, ¶ 1.7.

 

The Panel finds Respondent's <everpeak.com> domain name to be identical to Complainant's EVERPEAK mark and confusingly similar to Complainant's EVERPEAK INSURANCE mark, only differing from that mark by the omission of the word "insurance", which is insufficient to distinguish the domain name from the mark. The inconsequential ".com" generic top-level domain ("gTLD") may be ignored under this element. See, for example, Rollerblade, Inc. v. Chris McCrady, D2000-0429 (WIPO June 25, 2000).

 

Complainant has established this element.

 

Rights or Legitimate Interests

In light of the Panel's findings under the third element, it is unnecessary to consider this element.

 

Registration and Use in Bad Faith

Paragraph 4(a)(iii) of the Policy is expressed in the conjunctive: "the domain name has been registered and is being used in bad faith" and Paragraph 4(b) sets out four illustrative circumstances, which, though not exclusive, shall be evidence of the registration and use of the domain name in bad faith for purposes of paragraph 4(a)(iii), namely:

 

(i)        circumstances indicating that you have registered or you have acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of your documented out-of-pocket costs directly related to the domain name; or

 

(ii)        you have registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that you have engaged in a pattern of such conduct; or

 

(iii)                      you have registered the domain name primarily for the purpose of disrupting the business of a competitor; or 

 

(iv)                      by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of your web site or location or of a product or service on your web site or location.

The <everpeak.com> domain name was registered on January 3, 2002, several years prior to Complainant's first claimed use of its EVERPEAK mark. It does not resolve to an active website and appears to have been passively held ever since its registration. These circumstances satisfy the Panel that Respondent could not have been aware of Complainant, its EVERPEAK INSURANCE and EVERPEAK marks and its <everpeakinsurance.com> domain name (registered on July 20, 2023, according to a search conducted by the Panel)¹ when Respondent registered the <everpeak.com> domain name. Accordingly, the Panel finds that Respondent could not have registered the domain name in bad faith.

 

The Panel notes that throughout November 2023, Complainant contacted Respondent through a GoDaddy aftermarket domain broker in an effort to acquire the <everpeak.com> domain name but received no response. Complainant argues that, based on these contacts, it can be presumed that Respondent has been aware or Complainant and its EVERPEAK INSURANCE and EVERPEAK marks since at least November 2023 and that its continued renewal and passive holding of the <everpeak.com> domain name thereafter with notice of Complainant's superior rights constitutes bad faith, citing Guidehouse LLP, FA 2155164. 

 

The decision in that case shows that the GUIDEHOUSE mark was registered in 2019 and the disputed domain name was registered in 2025. The Panelist found it more likely than not that the respondent had actual knowledge of the GUIDEHOUSE mark when it registered the domain name and intended to target the complainant and its mark. The Panelist also found that the mere fact of passive holding does not automatically result in a finding of bad faith and that a respondent's intent to trade off the goodwill of the Complainant in doing so must also be proven.

 

In the present case the Panel finds that Complainant has failed to show that the <everpeak.com> domain name was registered in bad faith with intent to trade off the goodwill of the Complainant in doing so. The <everpeak.com> domain name was registered many years before Complainant commenced use of its marks, so Respondent could not have been aware of them and could not have registered the domain name in bad faith.

 

In the Panel's experience, GoDaddy aftermarket domain brokers do not generally reveal the identity of their client to the domain name registrant, so Respondent is also unlikely to have been aware of Complainant and its EVERPEAK INSURANCE and EVERPEAK marks since the November 2023 communications from the broker. However, even assuming that the broker did reveal Complainant's identity to Respondent, the issue arises as to whether, having registered the domain name in good faith, Respondent's continued renewal and passive holding of the <everpeak.com> domain name thereafter with notice of Complainant's claimed superior rights constitutes bad faith. The Panel considers the circumstance of this case to be similar to those in Substance Abuse Management, Inc. v. Screen Actors Modesl [sic] International, Inc. (SAMI), WIPO Case No. D2001-0782, in which the Panelist found:

 

"The issue of whether renewal of a registration made in bad faith can convert a name originally registered in good faith to a name registered in bad faith was addressed head-on in Weatherall Green & Smith v. Everymedia.com, WIPO Case No. D2000-1528. The Panel in that case, like the Panel here, found no evidence that the original registration was obtained in bad faith. The Panel did find that the registration was renewed in bad faith and that at the time of the renewal the domain name was being used in bad faith. However, even with this evidence, the Panel did not find a violation of the UDRP, concluding "a registration of a domain name that at inception did not breach Rule 4(a)(iii) but is found later to be used in bad faith does not fall foul of Rule 4(a)(iii)." The Panel also relied on the Report of the WIPO Internet Domain Name Process (April 30, 1999) which states that the Report was not intended to extend the definition of abusive registration "to include domain names originally registered in good faith." See also Teradyne, Inc. v. 4tel Technology, WIPO Case No. D2000-0026. Clearly, the authors of the Report could have extended its analysis of the UDRP to cover registrations obtained in bad faith either at the time of the original registration or at the time of renewal. It chose not to do so. Similarly, the Policy could have been drafted to address both bad faith registration and bad faith renewal. It does not, referring only to a registration having been obtained in bad faith. Thus, there is no support for Complainant's position.

…

Because Complainant has not presented any evidence to suggest that when the domain name was originally registered it was done so in bad faith, and because there is no indication in the UDRP that a renewal constitutes a new registration, Complainant has not satisfied its burden of showing bad faith registration. If a domain name was registered in good faith, it cannot, by changed circumstances, the passage of years, or intervening events, later be deemed to have been registered in bad faith. Accord, Telaxis Communications Corp. v. William E. Minkle, WIPO Case No. D2000-0005. Absent proof of bad faith registration, the Complainant has not satisfied the requirements of the UDRP. Weatherall Green & Smith v. Everymedia.com, WIPO Case No. D2000-1528."

 

Accordingly, the Panel finds that Respondent's 2023 and 2024 renewals do not support a finding of registration in bad faith in 2002.

 

As to whether Respondent acted in bad faith by using a privacy protection service to hide its WHOIS registration data, as noted in WIPO Overview 3.0, section 3.6, "there are recognized legitimate uses of privacy and proxy registration services", and the circumstances in which such services are used can however impact a panel's assessment of bad faith. As is widely known, the use of a privacy or proxy registration service is a common practice adopted by many legitimate businesses and individuals to protect against spam, identity theft, and other security risks. Absent additional evidence showing that such privacy was employed specifically to conceal wrongful conduct or to prevent a trademark owner from identifying the registrant, the mere use of a privacy service does not in itself support a finding of bad faith.

 

Complainant has failed to establish this element.

 

Reverse domain name hijacking

Reverse Domain Name Hijacking ("RDNH") is defined in Rule 1 as "using the Policy in bad faith to attempt to deprive a registered domain-name holder of a domain name". Rule 15(e) provides, in part:

 

"If after considering the submissions the Panel finds that the complaint was brought in bad faith, for example in an attempt at Reverse Domain Name Hijacking or was brought primarily to harass the domain-name holder, the Panel shall declare in its decision that the complaint was brought in bad faith and constitutes an abuse of the administrative proceeding."

 

In the Panel's view, this is a classic "Plan B" case, i.e., using the Policy after failing in the marketplace to acquire the domain name. This stratagem has been described in several UDRP cases as "a highly improper purpose" and has contributed to findings of RDNH. See, e.g., Patricks Universal Export Pty Ltd. v. David Greenblatt, WIPO Case No. D2016-0653 and BERNINA International AG v. Domain Administrator, Name Administration Inc. (BVI), WIPO Case No. D2016-1811.

 

The Panel therefore finds that Complainant and its Legal Representative must have known that this is not a case of bad faith registration and that the Complaint was brought in bad faith and constitutes an abuse of this administrative proceeding.

 

DECISION

Complainant having not established all three elements required under the ICANN Policy, the Panel concludes that relief shall be DENIED.

 

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

 

 

 

Alan L. Limbury, Panelist

Dated: November 15, 2025