URS FINAL DETERMINATION
Oracle International Corporation v. N/A et al.
Claim Number: FA1602001659358
DOMAIN NAME
<supercluster.space>
PARTIES
Complainant: Oracle International Corporation of Redwood City, CA, United States of America | |
Respondent: N/A Andres Conteris of Oakland, CA, United States of America | |
REGISTRIES and REGISTRARS
Registries: DotSpace Inc. | |
Registrars: PDR Ltd. d/b/a PublicDomainRegistry.com |
EXAMINER
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Examiner in this proceeding. | |
Darryl C. Wilson, as Examiner |
PROCEDURAL HISTORY
Complainant Submitted: February 3, 2016 | |
Commencement: February 3, 2016 | |
Response Date: February 24, 2016 | |
Having reviewed the communications records, the Examiner finds that the Forum has discharged its responsibility under URS Procedure Paragraphs 3 and 4 and Rule 4 of the Rules for the Uniform Rapid Suspension System (the "Rules"). |
RELIEF SOUGHT
Complainant requests that the domain name be suspended for the life of the registration. |
STANDARD OF REVIEW
Clear and convincing evidence. |
FINDINGS and DISCUSSION
Procedural Findings: | ||
Multiple Complainants: Multiple Complainants: There are no multiple Complainants. No domain names are dismissed from the complaint. | ||
Multiple Respondents: Multiple Respondents: There are no multiple Respondents. No domain names are dismissed from the complaint. |
Findings of Fact: Complainant contends as follows; 1. The registered domain name is identical or confusingly similar to a word or mark [URS/.usRS 1.2.6.1] for which the Complainant holds a valid national or regional registration and that is in current use. 2. Registrant has no legitimate right or interest to the domain name [URS/.usRS 1.2.6.2]. Registrant has never been affiliated with Complainant nor authorized to use Complainant’s mark. 3. The domain name was registered and is being used in bad faith [URS 1.2.6.3] such as: The Registrant has intentionally attempted to attract for commercial gain, Internet users to Registrant’s web site or other online location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Registrant’s web site or location or of a product or service on that web site or location. Registrant is using the domain name to deploy malware. |
URS Procedure 1.2.6, requires Complainant to prove, by clear and convincing evidence, each of the following three elements to obtain an order that a domain name should be suspended.
[URS 1.2.6.1] The registered domain name(s) is/are identical or confusingly similar
to a word mark: Determined: Finding for Complainant The domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights. The domain name is identical to the Complainant’s domestic and internationally registered trademark "SUPERCLUSTER" which the Complainant first registered and has continuously used since at least as early as 2013. [URS 1.2.6.2] Registrant has no legitimate right or interest to the domain name. Determined: Finding for Respondent Complainant contends that Registrant is not using the Domain Name for any bona fide offering of goods or services, or for any legitimate noncommercial or fair use. Instead the domain name is being offered for sale and does not resolve, but does deploy malware. Registrant indicates he does not plan to sell the disputed domain name and indicates a valid reason for his inability to remove the information regarding the past offer. Registrant denies Complainant's allegations regarding malware and offers a plausible explanation for the failure of the domain name to resolve based on the present proceedings and plans for future usage. Registrant also indicates the use of the domain name for a writing project at a recognized educational institution in an advertised program of study. The Panel finds that the Registrant has proposed a legitimate noncommercial or fair use of the disputed domain name.
[URS 1.2.6.3] The domain name(s) was/were registered and is being used in bad faith.
Determined: Finding for Respondent Complainant contends that Registrant’s primary purpose for registering the mark was for resale. Complainant also asserts that Registrant's registration and use are motivated by a desire to disrupt Complainant's business. Registrant denies such motives and asserts registration and usage of the domain name in a generic fashion for educational purposes. The Panel finds that Registrant did not acquire the domain for the primary purpose of resale and that the registration and use is not in bad faith. Complainant's mark is fanciful and distinct in regards to computers but is merely descriptive regarding astronomy and cosmology. Superclusters are found in space and have been part of the common vernacular relative to space discussion since the early 20th century. Use of superclusters in connection with space does not indicate that Registrant is any way acting in bad faith per Complainant's computer business. Complainant's assertions that its business is worldwide and therefore Registrant must have registered the .space domain name in recognition of the scope of Complainant's business is logically inconsistent. Complainant’s business may be worldwide but it is not out of this world. Procurement of a trademark for a common term does not preclude others from using the term in its common manner. FINDING OF ABUSE or MATERIAL FALSEHOOD The Examiner may find that the Complaint was brought in an abuse of this proceeding or that it contained material falsehoods. Respondent has alleged that the Complaint was brought in an abuse of this proceeding or that it contained material falsehoods. The Examiner finds as follows:
The Panel finds there is insufficient evidence to conclude there was any abuse of the proceedings or material falsehoods in the filing. Complainant’s policing of its mark is not abuse and the mere fact that the domain name is allegedly directed to a domain name parking service does not automatically mean the Registrant has no further responsibility for any negative repercussions related to the domain names resolution.
DETERMINATION
After reviewing the parties’ submissions, the Examiner determines that the Complainant
has NOT demonstrated all three elements of the URS by a standard of clear and convincing
evidence; the Examiner hereby Orders the following domain name(s) be returned to
the control of Respondent:
|
Darryl C. Wilson
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