Crosspoint Solutions, LLC v. Igor Chernavin
Claim Number: FA1206001450358
Complainant is Crosspoint Solutions, LLC (“Complainant”), represented by Steven L. Rinehart, Utah, USA. Respondent is Igor Chernavin (“Respondent”), Russia.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <climacab.com>, registered with AZ.PL, INC.
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.
Honorable Karl V. Fink (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on June 22, 2012; the National Arbitration Forum received payment on June 25, 2012.
On June 27, 2012, AZ.PL, INC. confirmed by e-mail to the National Arbitration Forum that the <climacab.com> domain name is registered with AZ.PL, INC. and that Respondent is the current registrant of the name. AZ.PL, INC. has verified that Respondent is bound by the AZ.PL, INC. 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 28, 2012, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 18, 2012 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@climacab.com. Also on June 28, 2012, 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, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On July 27, 2012, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Honorable Karl V. Fink (Ret.) as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration 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, the National Arbitration Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
B. Respondent
Respondent did not submit a Response.
For the reasons set forth below, the Panel finds Complainant is entitled to the relief requested.
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 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(e), 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 and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
Complainant claims rights in the CLIMACAB mark under Policy ¶ 4(a)(i). The Panel observes that Complainant has provided evidence of its trademark registrations of the CLIMACAB mark with the USPTO (e.g., Reg. No. 3,432,208 registered May 20, 2008). The Panel notes that past panels have agreed that registration of a mark with the USPTO is sufficient to confer rights in a mark. See AOL LLC v. Interrante, FA 681239 (Nat. Arb. Forum May 23, 2006) (finding that where the complainant had submitted evidence of its registration with the USPTO, “such evidence establishes complainant’s rights in the mark pursuant to Policy ¶ 4(a)(i).”). The Panel finds that Complainant has established rights in the CLIMACAB mark pursuant to Policy ¶ 4(a)(i), despite the fact that Respondent operates in a country other than that in which Complainant holds its registration. See Koninklijke KPN N.V. v. Telepathy Inc., D2001-0217 (WIPO May 7, 2001) (finding that the Policy does not require that the mark be registered in the country in which the respondent operates; therefore it is sufficient that the complainant can demonstrate a mark in some jurisdiction).
Complainant argues that Respondent’s <climacab.com> domain name is identical to Complainant’s CLIMACAB mark for the purposes of Policy ¶ 4(a)(i). The Panel notes that the disputed domain name adds the generic top-level domain (“gTLD”) “.com.” to Complainant’s CLIMACAB mark. The Panel finds that the affixation of a gTLD is insufficient to distinguish a disputed domain name for the purposes of Policy ¶ 4(a)(i). See Abt Elecs., Inc. v. Ricks, FA 904239 (Nat. Arb. Forum Mar. 27, 2007) (“The Panel also finds that Respondent’s <abt.com> domain name is identical to Complainant’s ABT mark since addition of a generic top-level domain (“gTLD”) is irrelevant when conducting a Policy ¶ 4(a)(i) analysis.”). The Panel holds that Respondent’s <climacab.com> domain name is identical to Complainant’s CLIMACAB mark for the purposes of Policy ¶ 4(a)(i).
Complainant has proven this element.
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), 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 (Nat. Arb. Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name); see also AOL LLC v. Gerberg, FA 780200 (Nat. Arb. 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.”).
Complainant alleges that Respondent is not commonly known by the <climacab.com> domain name for the purposes of Policy ¶ 4(c)(ii). Complainant also asserts that it has not authorized, licensed, or otherwise permitted Respondent’s use of the CLIMACAB mark or the <climacab.com> domain name. The Panel notes that the WHOIS information identifies the domain name registrant as “Igor Chernavin,” which the Panel finds to bear little resemblance to the disputed domain name. There is no evidence in the record that Respondent is commonly known by the disputed domain name. Without such evidence, the Panel concludes that Respondent is not commonly known by the <climacab.com> domain name for the purposes of Policy ¶ 4(c)(ii). See Braun Corp. v. Loney, FA 699652 (Nat. Arb. Forum July 7, 2006) (concluding that the respondent was not commonly known by the disputed domain names where the WHOIS information, as well as all other information in the record, gave no indication that the respondent was commonly known by the disputed domain names, and the complainant had not authorized the respondent to register a domain name containing its registered mark).
Complainant alleges that Respondent is using the <climacab.com> domain name for commercial gain in connection with a phishing scheme. Complainant asserts that Respondent’s website is a mirror image of Complainant’s pre-bankruptcy website, demonstrating Respondent’s attempt to impersonate Complainant’s predecessor-in-interest in order to wrongfully acquire personal and financial information from Complainant’s customers. The Panel finds that Respondent has attempted to pass itself off as Complainant, and the Panel also finds that this shows Respondent’s lack of rights or legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii). The Panel also determines that Respondent’s activities at the disputed domain name amount to phishing, providing further proof that Respondent lacks rights or legitimate interests in the contested domain name. Therefore, the Panel holds that Respondent is not making a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use of the disputed domain name under Policy ¶ 4(c)(iii). See Am. Int’l Group, Inc. v. Busby, FA 156251 (Nat. Arb. 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); see also Allianz of Am. Corp. v. Bond, FA 690796 (Nat. Arb. Forum June 12, 2006) (holding that the respondent’s use of the <allianzcorp.biz> domain name to fraudulently acquire the personal and financial information of Internet users seeking Complainant’s financial services was not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use of the disputed domain name pursuant to Policy ¶ 4(c)(iii)).
Complainant claims that its predecessor in interest registered the <climacab.com> domain name on December 30, 2006, holding the domain name until being forced into bankruptcy in 2011. Complainant claims that it acquired its predecessor-in-interest from the bankruptcy estate in 2012, which included the acquisition of the CLIMACAB mark. Complainant contends that during the intervening period of time, Complainant’s predecessor-in-interest inadvertently allowed its registration of the <climacab.com> domain name to expire because the company was in bankruptcy and had no employees remaining in its IT department. Complainant asserts that Respondent took advantage of this involuntarily lapse in registration, registering the disputed domain name on March 12, 2012. The Panel finds that the WHOIS information on record indicates that Respondent registered the disputed domain name on March 15, 2012. The Panel finds that Complainant’s predecessor-in-interest’s previous registration of the disputed domain name negates any rights or legitimate interests Respondent might have in the domain name. See RH-Interactive Jobfinance v. Mooburi Servs., FA 137041 (Nat. Arb. Forum Jan. 16, 2003) (“Complainant’s prior registration of the domain name, coupled with Respondent’s failure to respond to this dispute, is evidence that Respondent has no rights or legitimate interests in the domain name pursuant to Policy 4(a)(ii).”); see also Edmunds.com, Inc. v. Ult. Search Inc., D2001-1319 (WIPO Feb. 1, 2002) (finding that the respondent could not rely on equitable doctrines under the Policy to defend its registration of the disputed domain name after the registration was inadvertently permitted to lapse by the complainant, noting that “Respondent was aware of the Complainant’s well-known business and its mark and intended to exploit the mark”).
Complainant has proven this element.
Complainant argues that Respondent’s website is a mirror image of its old website operated by Complainant’s predecessor-in-interest, even making use of Complainant’s stylized and word marks. This, coupled with Respondent’s registration of an identical domain name, lead Complainant to believe that Respondent is trying to pass itself off as Complainant. Complainant further contends that Respondent is attempting to phish for personal and financial information. The Panel agrees and finds that such passing off and phishing is evidence of bad faith registration and use under Policy ¶ 4(b)(iv). See Am. Online, Inc. v. Miles, FA 105890 (Nat. Arb. Forum May 31, 2002) (“Respondent is using the domain name at issue to resolve to a website at which Complainant’s trademarks and logos are prominently displayed. Respondent has done this with full knowledge of Complainant’s business and trademarks. The Panel finds that this conduct is that which is prohibited by Paragraph 4(b)(iv) of the Policy.”); see also Allianz of Am. Corp. v. Bond, FA 680624 (Nat. Arb. Forum June 2, 2006) (finding bad faith registration and use under Policy ¶ 4(b)(iv) where the respondent was diverting Internet users searching for the complainant to its own website and likely profiting)
Complainant also argues that Respondent is using the <climacab.com> domain name to induce visitors to enter their personal and financial information in connection with a phishing scheme. The Panel notes that past panels have found that the use of a disputed domain name to operate a phishing scheme demonstrates bad faith registration and use under Policy ¶ 4(a)(iii). See HOPE worldwide, Ltd. v. Jin, FA 320379 (Nat. Arb. Forum Nov. 11, 2004) (finding that the respondent registered and used the domain name in bad faith because it redirected Internet users to a website that imitated the complainant’s website and was used to fraudulently acquire personal information from the complainant’s potential associates). The Panel finds that Respondent’s use of the <climacab.com> domain name amounts to phishing. The Panel further finds that such use constitutes evidence of bad faith registration and use under Policy ¶ 4(a)(iii).
Complainant argues that Respondent registered the <climacab.com> domain name with knowledge of Complainant’s rights in the CLIMACAB mark. Complainant states that Respondent’s website is a mirror image of Complainant’s old website operated by Complainant’s predecessor-in-interest, even making use of Complainant’s stylized and word marks. The Panel finds that this evidence establishes Respondent’s knowledge of Complainant’s mark at the time Respondent registered the disputed domain name, which the Panel treats as evidence that Respondent registered the disputed domain name in bad faith under Policy ¶ 4(a)(i). See Yahoo! Inc. v. Butler, FA 744444 (Nat. Arb. Forum Aug. 17, 2006) (finding bad faith where the respondent was “well-aware” of the complainant’s YAHOO! mark at the time of registration).
Complainant claims that its predecessor-in-interest registered the <climacab.com> domain name on December 30, 2006, holding the domain name until being forced into bankruptcy in 2011. Complainant claims that it acquired its predecessor-in-interest from the bankruptcy estate in 2012, which included the acquisition of the CLIMACAB mark. Complainant contends that, during the intervening period of time, Complainant’s predecessor-in-interest inadvertently allowed its registration of the <climacab.com> domain name to expire because the company was in bankruptcy and had no employees remaining in its IT department. Complainant asserts that Respondent took advantage of this involuntarily lapse in registration, registering the disputed domain name on March 12, 2012. The Panel finds that Complainant’s predecessor-in-interest’s previous registration of the disputed domain name evidences Respondent’s registration and use of the disputed domain name in bad faith under Policy ¶ 4(a)(iii). See BAA plc v. Spektrum Media Inc., D2000-1179 (WIPO Oct. 17, 2000) (finding bad faith where the respondent took advantage of the complainant’s failure to renew a domain name).
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <climacab.com> domain name be TRANSFERRED from Respondent to Complainant.
Honorable Karl V. Fink (Ret.), Panelist
Dated: August 2, 2012
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