NETSCOUT SYSTEMS INC. v. Super Privacy Service LTD c/o Dynadot
Claim Number: FA1906001849802
Complainant is NETSCOUT SYSTEMS INC. ("Complainant"), represented by Amanda K. Greenspon of Munck Wilson Mandala, LLP, Texas, USA. Respondent is Super Privacy Service LTD c/o Dynadot ("Respondent"), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <visibilitywithoutborders.com> registered with Dynadot, LLC.
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 E. Sorkin as Panelist.
Complainant submitted a Complaint to the Forum electronically on June 26, 2019; the Forum received payment on June 26, 2019.
On June 27, 2019, Dynadot, LLC confirmed by email to the Forum that the <visibilitywithoutborders.com> domain name is registered with Dynadot, LLC and that Respondent is the current registrant of the name. Dynadot, LLC has verified that Respondent is bound by the Dynadot, 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 July 2, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 22, 2019 by which Respondent could file a Response to the Complaint, via email to all entities and persons listed on Respondent's registration as technical, administrative, and billing contacts, and to postmaster@visibilitywithoutborders.com. Also on July 2, 2019, the Written Notice of the Complaint, notifying Respondent of the email 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 26, 2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed David E. Sorkin 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 is a worldwide provider of application and network performance management products and services. Complainant has used VISIBILITY WITHOUT BORDERS in connection with these products and services since at least as early as November 2018. Complainant owns a European Union registration for the mark, and has applied to register it in various other jurisdictions; Complainant's U.S. trademark application was filed on January 17, 2019.
Respondent registered the disputed domain name <visibilitywithoutborders.com> on January 21, 2019. The domain name is being used to redirect Internet users to a web page that advertises it for sale at a price of $990. Complainant states that Respondent is not affiliated with Complainant in any way, has not been licensed to use Complainant's mark, and is not an authorized vendor, supplier, or distributor of Complainant's goods and services.
Complainant contends on the above grounds that the disputed domain name <visibilitywithoutborders.com> is confusingly similar to its VISIBILITY WITHOUT BORDERS mark; that Respondent lacks rights or legitimate interests in the disputed domain name; and that the disputed domain name was registered and is being used in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that the disputed domain name is identical to a mark in which Complainant has rights; that Respondent lacks rights or legitimate interests in respect of the disputed domain name; and that the disputed domain name was registered and is being used 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; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, § 4.3 (3d ed. 2017), available at http://www.wipo.int/amc/en/domains/search/overview3.0/; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (dismissing complaint where complainant failed to "produce clear evidence to support its subjective allegations").
The disputed domain name <visibilitywithoutborders.com> corresponds to Complainant's registered VISIBILITY WITHOUT BORDERS trademark, with the spaces omitted and the ".com" top-level domain appended thereto. The omission of spaces and the addition of a top-level domain are normally irrelevant for purposes of paragraph 4(a)(i) of the Policy. See, e.g., Bureau International de Medecins Sans Frontieres & Medecins Sans Frontieres USA Inc v. Nizar Mawani, D2001-0515 (WIPO May 27, 2001) (finding <doctorswithoutborders.com> identical to DOCTORS WITHOUT BORDERS). The Panel therefore considers the disputed domain name to be identical to Complainant's registered mark.
Under the Policy, the Complainant must first make a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain name, and then the burden shifts to the Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Productions, Inc. v. Entertainment Commentaries, FA 741828 (Forum Aug. 18, 2006).
The disputed domain name incorporates Complainant's registered mark without authorization, and its sole apparent use has been to redirect Internet users to a web page that offers the domain name for sale. Such use is unlikely to give rise to rights or legitimate interests under the Policy. See, e.g., Citizens Financial Group, Inc. v. DOMAIN MAYBE FOR SALE c/o Dynadot, FA 1827738 (Forum Mar. 4, 2019) (finding lack of rights or interests under similar circumstances).
Complainant has made a prima facie case that Respondent lacks rights and legitimate interests in the domain name, and Respondent has failed to come forward with any evidence of such rights or interests. Accordingly, the Panel finds that Complainant has sustained its burden of proving that Respondent lacks rights or legitimate interests in respect of the disputed domain name.
Finally, Complainant must show that the disputed domain name was registered and is being used in bad faith. Paragraph 4(b) of the Policy sets forth circumstances that serve as evidence of registration and use in bad faith. Under paragraph 4(b)(i) of the Policy, for example, bad faith may be shown by evidence that a domain name was acquired "primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of [Respondent's] documented out-of-pocket costs directly related to the domain name."
The instances of bad faith set forth in paragraph 4(b) are merely illustrative, and bad faith may be found based upon other circumstances in appropriate cases. The timing of a domain name registration in particular may support an inference of opportunistic bad faith. See, e.g., WBC Group, LLC v. Mau Lio, FA 1678469 (Forum July 21, 2016) (finding bad faith where domain name corresponding to mark was registered two days after trademark application was filed and two days after application became public); WBC Group, LLC v. Lupie Jet, FA 1678468 (Forum July 8, 2016) (same).
Respondent registered a domain name corresponding to Complainant's registered mark, and the sole apparent use has been to redirect users to a page advertising the domain name for sale, presumably at a profit. The suspicious timing of Respondent's domain name registration -- four days after Complainant filed its U.S. trademark application -- is also suggestive of bad faith. The Panel finds that the disputed domain name was registered and is being used in bad faith.
Having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <visibilitywithoutborders.com> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: July 29, 2019
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