Cascade Investment, L.L.C. v. Royal Freight / Royal Frieght Inc.
Claim Number: FA2103001939606
Complainant is Cascade Investment, L.L.C. (“Complainant”), represented by James R. Davis, II of Perkins Coie LLP, District of Columbia, USA. Respondent is Royal freight / Royal Frieght Inc. (“Respondent”), New York, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <cascadeinvestment.us>, registered with NameCheap, 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.
David A. Einhorn appointed as Panelist.
Complainant submitted a Complaint to the Forum electronically on March 30, 2021; the Forum received payment on March 30, 2021.
On March 31, 2021, NameCheap, Inc. confirmed by e-mail to the Forum that the <cascadeinvestment.us> domain name is registered with NameCheap, Inc. and that Respondent is the current registrant of the name. NameCheap, Inc. has verified that Respondent is bound by the NameCheap, Inc. registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with the U.S. Department of Commerce’s usTLD Dispute Resolution Policy (the “Policy”).
On April 7, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 27, 2021 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 April 7, 2021, 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 May 3, 2021, 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 to the usTLD 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 usTLD Policy, usTLD 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.
Complainant is an investment company for Bill Gates. Complainant has common law rights in the CASCADE INVESTMENT mark. Respondent’s <cascadeinvestment.us> domain name is identical or confusingly similar to Complainant’s mark as it incorporates the mark in its entirety and adds the “.us” country code top-level domain (“ccTLD”) to the end of the mark.
Respondent lacks rights and legitimate interests in the <cascadeinvestment.us> domain name. Respondent is not commonly known by the disputed domain name, nor has Complainant authorized or licensed Respondent to use its CASCADE INVESTMENT mark in the disputed domain name. Respondent does not use the disputed domain name for any bona fide offering of goods or services, nor any legitimate noncommercial or fair use, but instead passes off as Complainant and purports to offer similar or competing services.
Respondent registered and uses the <cascadeinvestment.us> domain name in bad faith. Respondent uses the disputed domain name for bad faith attraction for commercial gain by passing off as Complainant and offering similar or competing services on the disputed domain name’s resolving website. Respondent registered the disputed domain name with actual knowledge of Complainant’s rights in the CASCADE INVESTMENT mark. Respondent provided false or misleading WHOIS information to register the disputed domain name.
Respondent failed to submit a response in this proceeding. The Panel notes that the <cascadeinvestment.us> domain name was registered on Apr. 21, 2020.
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 or is being used in bad faith.
Given the similarity between the Uniform Domain Name Dispute Resolution Policy (“UDRP”) and the usTLD Policy, the Panel will draw upon UDRP precedent as applicable in rendering its decision.
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 set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
Complainant does not allege or provide any evidence of any trademark registrations which it owns with any national trademark authority. However, Complainant claims common law rights to the term CASCADE INVESTMENT. However, the documentary evidence provided by Complainant in support of this allegation shows use of this term as a trade name, not as a trademark. The use of a trade name by Complainant is insufficient to establish rights under ¶ 4(a)(i) of the Policy. See, The Woodlands Dermatology Assoc., P.A. v. Perri FA 1410742 (Forum Nov. 28, 2011) (finding that the Policy makes clear that its rules are intended only to protect trademarks, not mere trade names).
Therefore, Complainant may not obtain relief under the usDRP. This is not a determination whether or not Complainant may be able to obtain relief in federal or state court.
For the above reason, Complainant has not satisfied ¶ 4(a)(i) of the Policy. Thus, there is no need for this Panel to determine whether Respondent has rights or legitimate interests in the domain name, or whether Registrant registered or used the domain name in bad faith.
Having not established all three elements required under the usTLD Policy, the Panel concludes that relief shall be DENIED.
Accordingly, it is Ordered that the <cascadeinvestment.us> domain name REMAIN WITH Respondent.
David A. Einhorn, Panelist
Dated: May 18, 2021
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