Crystal Brand Company Limited v. Jon Kleppe
Claim Number: FA1908001857083
Complainant is Crystal Brand Company Limited (“Complainant”), represented by Adam Losey, of Losey, PLLC, Florida, USA. Respondent is Jon Kleppe (“Respondent”), Colorado, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <explorecrystalcruises.com>, registered with GoDaddy.com, LLC; GoDaddy.com, 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.
The Honourable Neil Anthony Brown QC as Panelist.
Complainant submitted a Complaint to the Forum electronically on August 13, 2019; the Forum received payment on August 14, 2019.
On August 14, 2019, GoDaddy.com, LLC; GoDaddy.com, LLC confirmed by e-mail to the Forum that the <explorecrystalcruises.com> domain name is registered with GoDaddy.com, LLC; GoDaddy.com, LLC and that Respondent is the current registrant of the name. GoDaddy.com, LLC; GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, LLC; GoDaddy.com, 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 August 15, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 4, 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@explorecrystalcruises.com. Also on August 15, 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 September 6, 2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed The Honourable Neil Anthony Brown QC 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 made the following contentions.
Complainant operates a fleet of eight ships and offers over eight hundred (800) luxury cruise voyages all over the globe. Complainant has rights in the CRYSTAL CRUISES mark through its trademark registrations with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 1,710,442, registered Aug. 25, 1992). See Compl. Ex. 3. Respondent’s <explorecrystalcruises.com> domain name is confusingly similar to Complainant’s CRYSTAL CRUISES mark as it wholly incorporates the mark along with the descriptive term “explore” and a “.com” generic top-level domain (“gTLD”).
Respondent has no rights or legitimate interests in the <explorecrystalcruises.com> domain name. Respondent is not authorized to use Complainant’s CRYSTAL CRUISES 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 uses the disputed domain name to redirect to a website that advertises competing goods and services.
Respondent registered and uses the <explorecrystalcruises.com> domain name in bad faith. Respondent has offered to sell the disputed domain name to Complainant for more than out-of-pocket costs. Furthermore, Respondent attempts to disrupt Complainant’s business and attract, for commercial gain, users to the disputed domain name where it features competing goods and services.
B. Respondent
Respondent failed to submit a Response in this proceeding.
1. Complainant is an Isle of Man company that operates a fleet of eight ships and offers over eight hundred (800) luxury cruise voyages all over the globe.
2. Complainant has established its trademark rights in the CRYSTAL CRUISES mark through its registrations of the mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 1,710,442, registered Aug. 25, 1992).
3. Respondent registered the <explorecrystalcruises.com> domain name on January 14, 2019.
4. Respondent uses the disputed domain name to redirect internet users to a website that advertises competing goods and services.
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”).
The first question that arises is whether Complainant has rights in a trademark or service mark on which it may rely. Complainant submits that it has rights in the CRYSTAL CRUISES mark based upon registration of the mark with the USPTO (e.g., Reg. No. 1,710,442, registered Aug. 25, 1992). See Compl. Ex. 3. 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). The Panel therefore finds that Complainant’s registration of the CRYSTAL CRUISES mark with the USPTO is sufficient to establish rights in the mark under Policy ¶ 4(a)(i).
The next question that arises is whether the disputed domain name is identical or confusingly similar to Complainant’s CRYSTAL CRUISES mark. Complainant argues Respondent’s <explorecrystalcruises.com> domain name is confusingly similar to the CRYSTAL CRUISES mark, as the name incorporates the mark in its entirety, along with a descriptive term “explore” and a “.com” gTLD. Such changes are not sufficient to distinguish a domain name from an incorporated mark in a Policy ¶ 4(a)(i) analysis. See The Toronto-Dominion Bank v. George Whitehead, FA 1784412 (Forum June 11, 2018) (“[S]light differences between domain names and registered marks, such as the addition of words that describe the goods or services in connection with the mark and gTLDs, do not distinguish the domain name from the mark incorporated therein per Policy ¶ 4(a)(i).”). The Panel therefore determines the <explorecrystalcruises.com> domain name is confusingly similar to the CRYSTAL CRUISES mark per Policy ¶ 4(a)(i).
Complainant has thus made out the first of the three elements that it must establish.
It is now well established that Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), then the burden shifts to Respondent to show it does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests”).
The Panel finds that Complainant has made out a prima facie case that arises from the following considerations:
(a) Respondent has chosen to take Complainant’s CRYSTAL CRUISES trademark and to use it in its domain name, which incorporates the mark in its entirety, along with the descriptive term “explore” that does not negate the confusing similarity with Complainant’s trademark;
(b) Respondent registered the <explorecrystalcruises.com> domain name on January 14, 2019;
(c) Respondent uses the disputed domain name to redirect internet users to a website that advertises competing goods and services;
(d) Respondent has engaged in these activities without the consent or approval of Complainant;
(e) Complainant argues that Respondent has no rights or legitimate interests in the <explorecrystalcruises.com> domain name, as Respondent is not commonly known by the disputed domain name, nor has Complainant authorized Respondent to use the CRYSTAL CRUISES mark in any way. Where a response is lacking, WHOIS information can support a finding that the respondent is not commonly known by a disputed domain name. See Philip Morris USA Inc. v. Usama Ramzan, FA 1737750 (Forum July 26, 2017) (“We begin by noting that Complainant contends, and Respondent does not deny, that Respondent has not been commonly known by the <marlborocoupon.us> domain name, and that Complainant has not authorized Respondent to use the MARLBORO mark in any way. Moreover, the pertinent WHOIS information identifies the registrant of the domain name only as “Usama Ramzan,” which does not resemble the domain name. On this record, we conclude that Respondent has not been commonly known by the challenged domain name so as to have acquired rights to or legitimate interests in it within the purview of Policy ¶ 4(c)(ii).”). The WHOIS information of record identifies the registrant of the at-issue domain name as “Jon Kleppe,” and no information on the record indicates Respondent was authorized to register a domain name incorporating Complainant’s mark. The Panel therefore finds under Policy ¶ 4(c)(ii) that Respondent has not been commonly known by the <explorecrystalcruises.com> domain name;
(f) Complainant argues Respondent’s lack of rights or legitimate interests in the <explorecrystalcruises.com> domain name is demonstrated by its failure to use the name to make a bona fide offering of goods or services or for a legitimate noncommercial or fair use. Complainant contends instead that the name resolves to a competing website. Such use is not indicative of rights or legitimate interests per Policy ¶¶ 4(c)(i) or (iii). See General Motors LLC v. MIKE LEE, FA 1659965 (Forum Mar. 10, 2016) (finding that “use of a domain to sell products and/or services that compete directly with a complainant’s business does not constitute a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).”). Specifically, Complainant contends that the domain name redirects users to a website called “CloudBlue Travel,” which is the trade name of Respondent’s Colorado-based business. See Compl. Exs. 9-11. Complainant also provides various social media accounts that are linked to the disputed domain name’s resolving website. See Compl. Exs. 12-14. Complainant argues that the website gives the false impression that it is affiliated with, and authorized by, Complainant. The Panel therefore determines that Respondent does not have rights or legitimate interests in the <explorecrystalcruises.com> domain name.
All of these matters go to make out the prima facie case against Respondent. As Respondent has not filed a Response or attempted by any other means to rebut the prima facie case against it, the Panel finds that Respondent has no rights or legitimate interests in the disputed domain name.
Complainant has thus made out the second of the three elements that it must establish.
It is clear that to establish bad faith for the purposes of the Policy, Complainant must show that the disputed domain name was registered in bad faith and has been used in bad faith. It is also clear that the criteria set out in Policy ¶ 4(b) for establishing bad faith are not exclusive, but that Complainants in UDRP proceedings may also rely on conduct that is bad faith within the generally accepted meaning of that expression.
Having regard to those principles, the Panel finds that the disputed domain name was registered and used in bad faith. That is so for the following reasons.
First, Complainant contends Respondent’s only purpose in registering the <explorecrystalcruises.com> domain name was to gain commercially from the sale of the same, indicating its registration and use of the name in bad faith. A general offer to sell a domain name can be evidence the respondent intended to make such an offer at the time it registered the name, supporting a finding of bad faith per Policy ¶ 4(b)(i). See Citigroup Inc. v. Kevin Goodman, FA1506001623939 (Forum July 11, 2015) (holding that the evidence showed that the respondent registered the disputed domain name primarily for the purpose of transferring it for a profit and demonstrates the respondent’s bad faith registration and use of the disputed domain name pursuant to Policy ¶ 4(b)(i).); see also Pocatello Idaho Auditorium Dist. v. CES Mktg. Group, Inc., FA 103186 (Forum Feb. 21, 2002) ("[w]hat makes an offer to sell a domain [name] bad faith is some accompanying evidence that the domain name was registered because of its value that is in some way dependent on the trademark of another, and then an offer to sell it to the trademark owner or a competitor of the trademark owner"). Complainant argues that given Respondent’s attempt to sell the disputed domain name to Complainant via email (dated Aug. 15, 2019), it is evident Respondent’s purpose for registering and using the domain name was and is to sell the name for a profit. See Compl. Ex. 15. The Panel agrees and finds Respondent to have registered and used the <explorecrystalcruises.com> domain name in bad faith per Policy ¶ 4(b)(i).
Secondly, Complainant claims Respondent’s use of the <explorecrystalcruises.com> domain name to pass itself off as Complainant in order to compete with Complainant’s business demonstrates that Respondent registered and used the domain name in bad faith. Use of a domain name to create a false impression of affiliation with a complainant in order to compete with and disrupt the complainant’s business is behavior indicative of bad faith registration and use per Policy ¶¶ 4(b)(iii) and (iv). See Fitness International, LLC v. ALISTAIR SWODECK / VICTOR AND MURRAY, FA1506001623644 (Forum July 9, 2015) (“Respondent uses the at-issue domain name to operate a website that purports to offer health club related services such as fitness experts, fitness models, fitness venues, exercise programs, and personal training, all of which are the exact services offered by Complainant. Doing so causes customer confusion, disrupts Complainant’s business, and demonstrates Respondent’s bad faith registration and use of the domain name pursuant to Policy ¶ 4(b)(iii).”); see also Am. Int’l Group, Inc. v. Busby, FA 156251 (Forum May 30, 2003) (finding that the disputed domain name was registered and used in bad faith where the respondent hosted a website that “duplicated Complainant’s mark and logo, giving every appearance of being associated or affiliated with Complainant’s business . . . to perpetrate a fraud upon individual shareholders who respected the goodwill surrounding the AIG mark”); Citadel LLC and its related entity, KCG IP Holdings, LLC v. Joel Lespinasse / Radius Group, FA1409001579141 (Forum Oct. 15, 2014) (“Here, the Panel finds evidence of Policy ¶ 4(b)(iv) bad faith as Respondent has used the confusingly similar domain name to promote its own financial management and consulting services in competition with Complainant.”). Complainant contends that the domain name redirects users to a website called “CloudBlue Travel,” which is the tradename of Respondent’s Colorado-based business. See Compl. Exs. 9-11. Complainant also provides various social media accounts that are linked to the disputed domain name’s resolving website. See Compl. Exs. 12-14. The Panel therefore finds Respondent registered and used the domain name in bad faith per Policy ¶¶ 4(b)(iii) and/or (iv).
Thirdly, in addition and having regard to the totality of the evidence, the Panel finds that, in view of Respondent’s registration of the disputed domain name using the CRYSTAL CRUISES mark and in view of the conduct that Respondent has engaged in when using the disputed domain name, Respondent registered and used it in bad faith within the generally accepted meaning of that expression.
Complainant has thus made out the third of the three elements that it must establish.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <explorecrystalcruises.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honourable Neil Anthony Brown QC
Panelist
Dated: September 7, 2019
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