Radio Flyer, Inc. v. Kiki Krisanti
Claim Number: FA1903001835115
Complainant is Radio Flyer, Inc. (“Complainant”), represented by Joshua S. Frick of Barnes & Thornburg LLP, Illinois. Respondent is Kiki Krisanti (“Respondent”), Indonesia.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <radiofly.info>, registered with 1&1 Internet SE.
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.
The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Complainant submitted a Complaint to the Forum electronically on March 21, 2019; the Forum received payment on March 22, 2019.
On March 22, 2019, 1&1 Internet SE confirmed by e-mail to the Forum that the <radiofly.info> domain name is registered with 1&1 Internet SE and that Respondent is the current registrant of the name. 1&1 Internet SE has verified that Respondent is bound by the 1&1 Internet SE 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 March 25, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 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 postmaster@radiofly.info. Also, on March 25, 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 April 16, 2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed the Honorable Charles K. McCotter, Jr. (Ret.) 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.
A. Complainant
Complainant has been manufacturing and selling safe, high-quality toys, and has grown into a leading designer, manufacturer and provider of toys. Complainant has rights in the RADIO FLYER mark through its trademark registrations with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 635,875, registered Oct. 16, 1956). Respondent’s <radiofly.info> domain name is confusingly similar to Complainant’s RADIO FLYER mark as Respondent incorporates the mark, while removing “er” from the mark and adding a “.info” generic top-level domain (“gTLD”).
Respondent has no rights or legitimate interests in the <radiofly.info> domain name. Respondent is not authorized to use Complainant’s RADIO FLYER mark and is not commonly known by the disputed domain name. Additionally, Respondent fails to use the disputed domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use. Rather, Respondent’s disputed domain name resolves to a parked website with unrelated hyperlinks.
Respondent registered and uses the <radiofly.info> domain name in bad faith. Respondent attempts to disrupt Complainant’s business as the domain name resolves to an inactive website. Respondent’s inactive use of the domain name alone constitutes bad faith. Respondent also engages in typosquatting. Finally, Respondent had actual and constructive knowledge of Complainant’s rights in the RADIO FLYER mark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has been manufacturing and selling safe, high-quality toys, and has grown into a leading designer, manufacturer and provider of toys. Complainant has rights in the RADIO FLYER mark through its trademark registrations with the USPTO (e.g., Reg. No. 635,875, registered Oct. 16, 1956). Respondent’s <radiofly.info> domain name is confusingly similar to Complainant’s RADIO FLYER mark.
Respondent registered the <radiofly.info> domain name on February 28, 2019.
Respondent has no rights or legitimate interests in the <radiofly.info> domain name. Respondent’s disputed domain name resolves to a parked website with unrelated hyperlinks.
Respondent registered and uses the <radiofly.info> domain name in bad faith.
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.
Complainant has rights in the RADIO FLYER mark under Policy ¶ 4(a)(i) based upon registration of the mark with the USPTO. Registration of a mark with the USPTO is sufficient to establish rights in that mark. See Home Depot Product Authority, LLC v. Samy Yosef / Express Transporting, FA 1738124 (Forum July 28, 2017) (finding that registration with the USPTO was sufficient to establish the complainant’s rights in the HOME DEPOT mark).
Respondent’s <radiofly.info> domain name is confusingly similar to the RADIO FLYER mark, as the name incorporates the mark, absent the letters “er” and adds a “.info” gTLD.
Respondent has no rights or legitimate interests in the <radiofly.info> domain name. Complainant has not authorized Respondent to use its RADIO FLYER mark. The WHOIS information of record identifies the registrant of the domain name as “Kiki Krisanti.” Therefore, Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Philip Morris USA Inc. v. Usama Ramzan, FA 1737750 (Forum July 26, 2017) (Where a response is lacking, WHOIS information can support a finding that the respondent is not commonly known by a disputed domain name).
Respondent’s inactive holding of the <radiofly.info> domain name shows it does not have rights or legitimate interests in the name. See George Weston Bakeries Inc. v. McBroom, FA 933276 (Forum Apr. 25, 2007) (finding that the respondent had no rights or legitimate interests in a domain name under either Policy ¶ 4(c)(i) or Policy ¶ 4(c)(iii) where it failed to make any active use of the domain name).
Respondent registered and uses the <radiofly.info> domain name in bad faith under Policy ¶ 4(b)(iii). Respondent attempts to attract users to an inactive website which disrupts Complainant’s business. See Love City Brewing Company v. Anker Fog / Love City Brewing Company, FA 1753144 (Forum Nov. 27, 2017) (Respondent disrupts complainant’s business by pointing Internet users to an expired webpage).
Respondent’s failure to use the <radiofly.info> domain name is also evidence of bad faith under Policy ¶ 4(a)(iii). See VideoLink, Inc. v. Xantech Corporation, FA1503001608735 (Forum May 12, 2015) (“Failure to actively use a domain name is evidence of bad faith registration and use pursuant to Policy ¶ 4(a)(iii).”).
Respondent had actual knowledge of Complainant's rights in the RADIO FLYER mark prior to registering the <radiofly.info> domain name. Therefore, Respondent registered and uses the domain name in bad faith under Policy ¶ 4(a)(iii). See Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum Feb. 6, 2014).
Respondent also engaged in typosquatting.
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <radiofly.info> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: April 29, 2019
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