CloudFlare, Inc. v. Domain Sales - www.COMDots.com c/o Dynadot
Claim Number: FA1506001624252
Complainant is CloudFlare, Inc. (“Complainant”), California, USA. Respondent is Domain Sales - www.COMDots.com c/o Dynadot (“Respondent”), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <cloudfare.com>, registered with Dynadot, LLC.
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.
David A. Einhorn appointed as Panelist.
Complainant submitted a Complaint to the Forum electronically on June 12, 2015; the Forum received payment on June 12, 2015.
On June 15, 2015, Dynadot, LLC confirmed by e-mail to the Forum that the <cloudfare.com> domain name is registered with Dynadot, LLC and that Respondent is the current registrant of the name. Dynadot, LLC has verified that Respondent is bound by the Dynadot, 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 June 22, 2015, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 13, 2015 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 email@example.com. Also on June 22, 2015, 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 Forum transmitted to the parties a Notification of Respondent Default.
On July 17, 2015, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed David A. Einhorn as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the 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 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’s Contentions
Complainant has registered the CLOUDFLARE mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 3,976,055, filed Sept. 7, 2010, registered June 7, 2011 and based on a first use date of Sept. 27, 2010). The mark is used on or in connection with the sale of computer software and computer services. The <cloudfare.com> domain name is confusingly similar to the CLOUDFLARE mark, because the disputed domain name differs from the mark only in the deletion of the letter “L”.
Respondent has no rights or legitimate interests. Respondent is not commonly known as the disputed domain name, nor is Respondent a licensee of Complainant. Further, the domain name resolves to a parked webpage containing various click-through advertisements. Respondent is also typosquatting, which shows a lack of rights or legitimate interests.
Respondent has engaged in bad faith registration and use. Respondent is disrupting Complainant’s business by deterring potential customers. Respondent is attempting to commercially profit from the creation of a likelihood of confusion. Lastly, Respondent is typosquatting in bad faith.
Respondent failed to submit a Response in this proceeding. The Panel notes that <cloudfare.com> was registered on August 6, 2009.
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.”).
Paragraph 4(a)(i) of the Policy requires Complainant to show that Respondent’s domain name is identical or confusingly similar to Complainant’s mark. This provision necessarily implies that Complainant’s rights predate the registration of Registrant’s domain name. Expert Computers, Inc. v. Name Delegation, FA 787937 (Nat. Arb. Forum Oct. 24, 2006). Respondent registered the disputed domain name on Aug. 6, 2009, which is prior to Complainant’s alleged first use of its trademark and prior to Complainant’s filing of its trademark applications. As Complainant has not shown that its rights predate the registration of Registrant’s domain name, Complainant has not satisfied paragraph 4(a)(i) of the Policy.
Because the Panel has determined that Complainant has not satisfied this requirement of Policy § 4(a)(i), there is no need to determine whether Respondent has rights or legitimate interests in the domain name or whether Respondent registered or used the domain name in bad faith. Nevertheless, it is also found that since Respondent’s domain registration predates Complainant’s rights to the mark, Respondent could not have registered the disputed domain in bad faith under Policy § 4(a)(iii).
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 <cloudfare.com> domain name REMAIN WITH Respondent.
David A. Einhorn, Panelist
Dated: July 31, 2015
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