ITSFAIL LTD v. Walter Pittman
Claim Number: FA2305002042635
Complainant is ITSFAIL LTD (“Complainant”), represented by Yevhenii Yakymchuk, United Kingdom. Respondent is Walter Pittman (“Respondent”), USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <ggdrop.shop>, registered with NameSilo, 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.
Alan L. Limbury, as Panelist.
Complainant submitted a Complaint to Forum electronically on May 2, 2023. Forum received payment on May 1, 2023.
On May 2, 2023, NameSilo, LLC confirmed by e-mail to Forum that the <ggdrop.shop> domain name is registered with NameSilo, LLC and that Respondent is the current registrant of the name. NameSilo, LLC has verified that Respondent is bound by the NameSilo, 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 May 5, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 25, 2023 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 postmaster@ggdrop.shop. Also on May 5, 2023, 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, Forum transmitted to the parties a Notification of Respondent Default.
On May 30, 2023, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Alan L. Limbury as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that 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, 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 cancelled.
A. Complainant
Complainant, ITSFAIL LTD., has rights in the GGDROP mark through company registration in the United Kingdom and trademark registration with the European Union Intellectual Property Office (“EUIPO”).
Respondent lacks rights or legitimate interests in the <ggdrop.shop> domain name since Complainant is the exclusive owner of the GGDROP mark.
Respondent registered and uses the <ggdrop.shop> domain name in bad faith pursuant to Russian law. After receiving repeated appeals from our clients and through our own monitoring, we have detected a case of illegal use of our trademark GGDROP in the content of the website “www.ggdrop.shop”. By engaging in these actions and taking into account its audience distribution, the content owners of the “www.ggdrop.shop” website grossly violate the provisions of Article 14 of the Federal Law of the Russian Federation, No. 135-FZ, sections 2 and 5, which prohibit unfair competition by misleading and unfair competition associated with the use of the results of intellectual activity; and Article 10 of the Civil Code of the Russian Federation: “It is not allowed to exercise civil rights solely with the intent to harm another person, to circumvent the law with an unlawful purpose, as well as other obviously unfair exercise of civil rights (abuse of right).” It follows that a domain name similar to a company name is subject to exclusive rights, even if it is not registered as a means of individualization.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has failed to establish all the elements entitling it to relief.
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 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”).
Company registration does not alone give rise to trademark rights. However, Complainant has shown that it has rights in the GGDROP mark through registration with the EUIPO (Reg. No. 1629883, registered on September 22, 2022). The Panel finds Respondent’s <ggdrop.shop> domain name to be identical to Complainant’s mark, since the inconsequential gTLD “.shop” may be ignored.
Complainant has established this element.
(i) before any notice to Respondent of the dispute, the use by Respondent of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) Respondent (as an individual, business or other organization) has been commonly known by the domain name, even if Respondent has acquired no trademark or service mark rights; or
(iii) Respondent is making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert customers or to tarnish the trademark or service mark at issue.
The <ggdrop.shop> domain name was registered on January 4, 2023, some three and a half months after Complainant’s EUIPO registration of its GGDROP mark. This timing and the fact of Complainant’s trademark registration do not alone prove lack of rights or legitimate interests in the domain name on the part of Respondent. Complainant has provided no evidence of its business, nor of the existence and content of Respondent’s website in support of its assertions.
These circumstances, together with Complainant’s assertions, are insufficient to constitute a prima facie showing of absence of rights or legitimate interests in respect of the domain name on the part of Respondent. The mere identity of the domain name to Complainant’s mark is likewise insufficient.
Complainant has failed to establish this element.
Registration and Use in Bad Faith
Paragraph 4(b) of the Policy sets out four illustrative circumstances, which, though not exclusive, shall be evidence of the registration and use of the domain name in bad faith for purposes of paragraph 4(a)(iii) of the Policy, i.e.
(i) circumstances indicating that Respondent has registered or acquired the domain name primarily for the purpose of selling, renting or otherwise transferring the domain name registration to Complainant who is the owner of the trademark or service mark or to a competitor of Complainant, for valuable consideration in excess of Respondent’s documented out-of-pocket costs directly related to the domain name; or
(ii) Respondent has registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that Respondent has engaged in a pattern of such conduct;
(iii) Respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website or other on-line location, by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website or location or of a product or service on its website or location.
The instant dispute is governed by the UDRP Policy. Whatever may be the position under Russian law which, under Paragraph 4(k) of the Policy, the parties are free to litigate, for this Complaint to succeed, it is necessary for Complainant to prove the elements set out in Paragraph 4(a) of the UDRP Policy. See Abbott Labs. v. Patel, FA 740337 (Forum Aug. 15, 2006) (holding that assertions of trademark infringement are “entirely misplaced and totally inappropriate for resolution” in a domain name dispute proceeding because the UDRP Policy applies only to abusive cybersquatting and nothing else).
As noted above, Complainant has provided no evidence of its business, nor of the existence and content of Respondent’s website to support its assertions.
Complainant has failed to establish this element.
Complainant 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 <ggdrop.shop> domain name REMAIN WITH Respondent.
Alan L. Limbury, Panelist
Dated: June 1, 2023
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