DECISION

 

Sell House Fast, LLC v. Billie Funderburk

Claim Number: FA1603001667961

PARTIES

Complainant is Sell House Fast, LLC (ďComplainantĒ), represented by Matthew H. Swyers of The Trademark Company, PLLC, Virginia, USA. Respondent is Billie Funderburk (ďRespondentĒ), Florida, USA.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <sellhousefast.com>, registered with GoDaddy.com, 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.

 

Darryl C. Wilson, as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to the Forum electronically on March 30, 2016; the Forum received payment on March 30, 2016.

 

On March 30, 2016, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <sellhousefast.com> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, LLC registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANNís Uniform Domain Name Dispute Resolution Policy (the ďPolicyĒ).

 

On March 31, 2016, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 20, 2016 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondentís registration as technical, administrative, and billing contacts, and to postmaster@sellhousefast.com. Also on March 31, 2016, 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 Respondentís 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 April 21, 2016, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Darryl C. Wilson, 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.

 

RELIEF SOUGHT

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

 

PARTIES' CONTENTIONS

A. Complainant

Complainant has rights in the SELL HOUSE FAST mark through its registration with the United States Patent and Trademark Office (ďUSPTOĒ) (Reg. No. 4,662,645, registered December 30, 2014). Respondentís <sellhousefast.com> domain name is identical to the SELL HOUSE FAST mark because it contains the mark without spaces combined with the generic top-level domain (ďgTLDĒ) ď.com.Ē

 

Respondent is not commonly known by the <sellhousefast.com> domain name because it has not been authorized to use the SELL HOUSE FAST mark and because WHOIS information identifies Respondent as ďBillie Funderburk.Ē Respondent fails to provide a bona fide offering of goods or services or a legitimate noncommercial or fair use because the resolving website is used to promote Respondentís own business which competes with Complainant. In addition, Respondent lacks rights and legitimate interests in the <sellhousefast.com> domain name because it has offered the domain for sale to Complainant.

 

Respondent uses the <sellhousefast.com> domain in bad faith because it attempted to sell the domain to Complainant. Moreover, Respondentís resolving website promotes Respondentís own business which competes with Complainant. Respondent also uses the domain to intentionally attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with Complainantís mark as to the source of Respondentís website. Finally, Respondent registered the <sellhousefast.com> domain name in bad faith because it did so with at least constructive knowledge of Complainantís rights in the SELL HOUSE FAST mark.

 

B. Respondent

Respondent failed to submit a Response in this proceeding.

 

FINDINGS

Complainant is Sell House Fast, LLC of Scottsdale, AZ, USA. Complainant is the owner of the domestic registration for the mark SELL HOUSE FAST which it registered in 2014, but claims to have first used in 2000, in connection with its business of providing marketing services and real estate sales leads for prospective buyers and sellers. Complainant asserts no common law rights in the mark.

 

Respondent is Billie Funderburk of Palm Harbor, FL, USA. Respondentís registrarís address is listed as Scottsdale, AZ, USA. The Panel notes that the <sellhousefast.com> domain name was created on or about July 3, 2002.

 

DISCUSSION

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(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 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 respondentís 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) (ďIn the absence of a response, it is appropriate to accept as true all allegations of the Complaint.Ē).

 

Identical and/or Confusingly Similar

Complainant claims to have rights in the SELL HOUSE FAST mark through its registration with the USPTO (Reg. No. 4,662,645, registered December 30, 2014). Complainant has provided evidence of its registration. The Panel here finds that Complainant has rights in the SELL HOUSE FAST mark under Policy ∂ 4(a)(i). See Trip Network Inc. v. Alviera, FA 914943 (Nat. Arb. Forum Mar. 27, 2007) (determining that the complainantís trademark registrations with the USPTO for the CHEAPTICKETS and CHEAPTICKETS.COM marks were adequate to establish its rights in the mark pursuant to Policy ∂ 4(a)(i)).

 

Complainant maintains that Respondentís <sellhousefast.com> domain name is virtually identical to the SELL HOUSE FAST mark because it contains the mark without spaces combined with the gTLD ď.com.Ē †The Panel here finds that the <sellhousefast.com> domain name is identical to the SELL HOUSE FAST mark according to Policy ∂ 4(a)(i). See Hannover Ruckversicherungs-AG v. Ryu, FA 102724 (Nat. Arb. Forum Jan. 7, 2001) (finding <hannoverre.com> to be identical to HANNOVER RE, ďas spaces are impermissible in domain names and a generic top-level domain such as Ď.comí or Ď.netí is required in domain namesĒ).

 

Respondent makes no contentions with regards to Policy ∂ 4(a)(i).

 

The Complainant has proven this element.

 

Rights or Legitimate Interests

The Panel recognizes that 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), then the burden shifts to Respondent to show it does have rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entmít 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). The Complainant has NOT met this burden.

 

Complainant contends that Respondent is not commonly known by the <sellhousefast.com> domain name because Complainant asserts Respondent has not been authorized to use the SELL HOUSE FAST mark and because WHOIS information identifies Respondent as ďBillie Funderburk.Ē Based on the WHOIS information and the lack of any response contradicting Complainantís assertions, the Panel finds that Respondent is not commonly known by the <sellhousefast.com> domain name pursuant to 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 domain names, and the complainant had not authorized the respondent to register a domain name containing its registered mark).

 

Complainant alleges that Respondent fails to use the <sellhousefast.com> domain name to provide a bona fide offering of goods or services or a legitimate noncommercial or fair use because the resolving website is used to promote Respondentís own business which competes with Complainant. Complainant has provided historical screenshots of resolving pages from 2003-2014 in order to demonstrate this use. The Panel finds Complainantís evidence sufficient to show Respondentís business has been, and is, in competition with Complainant, but does not conclude that it indicates Respondentís failure to make a bona fide offering of goods or services according to Policy ∂ 4(c)(i). Complainantís pleadings and proofs indicate that Respondent and Complainant have engaged and competed in the same business for an extended period of time. Complainant asserts no common law rights in the SELL HOUSE FAST mark predating its 2014 registration date. Complainantís only reference regarding use prior to Respondentís 2002 registration of the disputed domain name is to the date of first use on its trademark application which is listed as 2000. A date of first use on a trademark registration record, without more, establishes only what it says, which is the date the registrant first used the mark. Mere initial use of a mark does not establish any exclusive rights at that time.

 

Complainant also contends that Respondent lacks rights and legitimate interests in the <sellhousefast.com> domain because it has offered the domain for sale to Complainant. Complainant has provided a copy of an e-mail correspondence from Respondent offering to sell the domain for $19,000.00. In light of the Complainantís statements that Respondentís business has been in competition with Complainantís for more than a decade, the Panel here does not find this evidence sufficient, without more, to indicate that Respondent lacks rights and legitimate interests in the <sellhousefast.com> domain name under Policy ∂ 4(a)(ii).

 

The Panel recognizes that the domain name is comprised of dictionary words that may be deemed generic under some circumstances, however the Respondent did not file an answer contending that Complainantís mark lacked protection on that basis. Nor did Respondent assert any of the circumstances under Policy ∂ 4(c) or make any other express arguments for rights or legitimate interests. Under such circumstances a Respondent may lack a legitimate interest in a domain name even if it is comprised of a dictionary word or phrase.

 

But under the instant circumstances, Complainantís failure to assert any rights in the mark predating Respondentís registration, beyond simply stating that its registration indicates an earlier date of first use, is sufficient for the Panel to find that Complainant has not met its burden to make a prima facie case that Respondent lacks any rights or legitimate interest in the disputed domain name.

See Terminal Supply, Inc. v. HI-LINE ELECTRIC, FA 746752 (Nat. Arb. Forum Aug. 24, 2006) (holding that the complainant did not satisfactorily meet its burden and as a result found that the respondent had rights and legitimate interests in the domain name under UDRP ∂ 4(a)(ii)); see also Workshop Way, Inc. v. Harnage, FA 739879 (Nat. Arb. Forum Aug. 9, 2006) (finding that the respondent overcame the complainantís burden by showing it was making a bona fide offering of goods or services at the disputed domain name).

 

The Complainant has NOT proven this element.

Registration and Use in Bad Faith

The Panel finds that Complainant failed to meet the burden of proof of bad faith registration and use under Policy ∂ 4(a)(iii). See Starwood Hotels & Resorts Worldwide, Inc. v. Samjo CellTech.Ltd, FA 406512 (Nat. Arb. Forum Mar. 9, 2005) (finding that the complainant failed to establish that the respondent registered and used the disputed domain name in bad faith because mere assertions of bad faith are insufficient for a complainant to establish Policy ∂ 4(a)(iii); see also Graman USA Inc. v. Shenzhen Graman Indus. Co., FA 133676 (Nat. Arb. Forum Jan. 16, 2003) (finding that general allegations of bad faith without supporting facts or specific examples do not supply a sufficient basis upon which the panel may conclude that the respondent acted in bad faith).

 

Generally a domain name registration prior to the establishment of exclusive rights by a Complainant in a mark precludes a finding of bad faith registration and use in a Respondent. A Respondent cannot register in bad faith if unaware that another has established rights in a mark similar or identical to a domain name.

 

The Complainant has NOT proven this element.

 


DECISION

As the Complainant has NOT established all three elements required under the ICANN Policy, the Panel concludes that Complainantís requested relief shall be DENIED.

 

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

Darryl C. Wilson, Panelist

Dated: May 5, 2016

 

 

 

 

 

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