Puretalk Holdings, LLC v. Domain Administrator / Fundacion Privacy Services LTD
Claim Number: FA1906001848525
Complainant is Puretalk Holdings, LLC (“Complainant”), represented by Glenn S. Bacal of Bacal & Garrison Law Group, Arizona, USA. Respondent is Domain Administrator / Fundacion Privacy Services LTD (“Respondent”), Panama.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <puretalk.com> registered with Media Elite Holdings Limited.
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.
John J. Upchurch as Panelist.
Complainant submitted a Complaint to the Forum electronically on June 18, 2019; the Forum received payment on June 18, 2019.
On June 24, 2019, Media Elite Holdings Limited confirmed by e-mail to the Forum that the <puretalk.com> domain name is registered with Media Elite Holdings Limited and that Respondent is the current registrant of the name. Media Elite Holdings Limited has verified that Respondent is bound by the Media Elite Holdings Limited 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 24, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 15, 2019 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 firstname.lastname@example.org. Also on June 24, 2019, 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 22, 2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed John J. Upchurch 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.
1. Complainant is a telecommunications company. Complainant has rights in the PURETALK mark through its registration of the mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 5,545,081, registered Aug. 21, 2018). See Compl. Annex 4. Ex. 3. Respondent’s <puretalk.com> domain name is identical to Complainant’s mark as Respondent incorporates the PURETALK mark in its entirety and merely adds the “.com” generic top-level domain (“gTLD”).
2. Respondents has no rights or legitimate interests in the <puretalk.com> domain name as Respondent is not commonly known by the disputed domain name nor has Respondent been licensed, authorized, or otherwise permitted by Complainant to use Complainant’s mark. Furthermore, Respondent’s use is not a bona fide offering of goods or services, nor a legitimate noncommercial or fair use, as Respondent is redirecting Internet users too competing websites.
3. Finally, Respondent’s <puretalk.com> domain name was registered and is being used in bad faith, as the Respondent is attempting to sell the disputed domain name. Additionally, Respondent is attempting to attract Internet users, for commercial gain, by offering hyperlinks to competing goods or services.
1. Respondent failed to submit a response in this proceeding.
Complainant is a telecommunications company. Complainant asserts rights in the PURETALK mark through its registration of the mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 5,545,081, registered Aug. 21, 2018). See Compl. Annex 4. Ex. 3. Respondent registered <puretalk.com> on October 2, 2003. See Compl. Annex. 5.
As Respondent’s registration of the <puretalk.com> domain name predates Complainant’s first claimed rights in the PURETALK mark by fifteen (15) years, Complainant cannot prove registration in bad faith per Policy ¶ 4(a)(iii), as the Policy requires a showing of bad faith registration and use. See Platterz v. Andrew Melcher, FA 1729887 (Forum Jun. 19, 2017) (“Whatever the merits of Complainant’s arguments that Respondent is using the Domain Name in bad faith, those arguments are irrelevant, as a complainant must prove both bad faith registration and bad faith use in order to prevail.”); see also Faster Faster, Inc. DBA Alta Motors v. Jeongho Yoon c/o AltaMart, FA 1708272 (Forum Feb. 6, 2017) (“Respondent registered the domain name more than a decade before Complainant introduced the ALTA MOTORS mark in commerce. Respondent therefore could not have entertained bad faith intentions respecting the mark because it could not have contemplated Complainant’s then non-existent rights in [the mark] at the moment the domain name was registered.”).
Accordingly, the Panel finds that Complainant failed to meet the burden of proof of bad faith registration and use under Policy ¶ 4(a)(iii).
Having failed to establish the element of registration in bad faith as required under the ICANN Policy, the Panel concludes that relief shall be DENIED.
Accordingly, it is Ordered that the <puretalk.com> domain name REMAIN with Respondent.
John J. Upchurch
Dated: August 5, 2019
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