Great Eastern Resort Management, Inc. v. Milen Radumilo
Claim Number: FA1911001870060
Complainant is Great Eastern Resort Management, Inc. (“Complainant”), represented by Christel E. Harlacher of Williams Mullen c/o IP Docketing, Virginia, USA. Respondent is Milen Radumilo (“Respondent”), Romania.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <massanuttenresorts.com>, registered with Tucows Domains 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.
Alan L. Limbury, as Panelist.
Complainant submitted a Complaint to the Forum electronically on November 6, 2019; the Forum received payment on November 6, 2019.
On November 6, 2019, Tucows Domains Inc. confirmed by e-mail to the Forum that the <massanuttenresorts.com> domain name is registered with Tucows Domains Inc. and that Respondent is the current registrant of the name. Tucows Domains Inc. has verified that Respondent is bound by the Tucows Domains Inc. 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 November 11, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 2, 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@massanuttenresorts.com. Also on November 11, 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 December 5, 2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Alan L. Limbury 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 says the domain name is identical or confusingly similar to its MASSANUTTEN RESORT trademark and that Respondent has no rights or legitimate interests with respect to the domain name, which was registered and is being used in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has established all the elements entitling it to transfer of the domain name.
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”).
Complainant is the management company for Massanutten Resort, a 6,000 acre resort located in Rockingham County, Virginia, in the Shenandoah Valley, United States.
Complainant is the proprietor of United States registered trademarks Nos. 4,297,467 MASSANUTTEN RESORT and 4,297,371 MASSANUTTEN, both registered on March 5, 2013 for vacation real estate time share services and vacation real estate rental services in International class 36.
The Panel finds the domain name <massanuttenresorts.com> to be confusingly similar to the MASSANUTTEN RESORT trademark, the additional letter ‘s’ being insufficient to detract from the distinctiveness of the mark and the gTLD ‘.com’ being disregarded as inconsequential. See Paperless Inc. v. ICS Inc, FA 1629515 (Forum Aug. 17, 2015) (establishing a confusing similarity between the <paperlessspost.com> domain name and the PAPERLESS POST trademark in part because the domain name contained the entire mark and added an additional “s”); see also Reese v. Morgan, FA 917029 (Forum Apr. 5, 2007) (finding that the mere addition of the generic top-level domain “.com” is insufficient to differentiate a disputed domain name from a mark).
Complainant has established this element.
Paragraph 4(c) of the Policy sets out three illustrative circumstances as examples which, if established by Respondent, shall demonstrate rights to or legitimate interests in the disputed domain name for purposes of paragraph 4(a)(ii) of the Policy, i.e.
(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 domain name was registered on July 31, 2019. It resolves to a website displaying the MASSANUTTEN RESORT and MASSANUTTEN marks and pay-per-click hyperlinks to Complainant’s competitors.
Complainant says Respondent is not commonly known by the domain name and is not licensed or authorized to use Complainant’s mark. The domain name is not being used in connection with any bona fide offering of goods or services nor any legitimate noncommercial use. Respondent is using the domain name in connection with a “pay-per-click” service, resulting in the website featuring advertising that uses Complainants marks to advertise services that are the same or are closely related to those provided by the Complainant under its marks in a way that enables Respondent to generate revenue from the advertisements.
The Panel finds that Respondent’s use of the domain name, coupled with Complainant’s assertions, are sufficient 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 evidentiary burden therefore shifts to Respondent to show that it does have rights or legitimate interests in the domain name. See 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”).
Respondent has made no attempt to do so. Accordingly, the Panel finds that Respondent has no rights or legitimate interests in respect of the domain name.
Complainant has established 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, including:
(iv) by using the domain name, the 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 the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the respondent’s website or location or of a product or service on its website or location.
Complainant has provided screenshots of the domain name’s resolving webpage containing pay-per-click hyperlinks to Complainant’s competitors. This is evidence of both bad faith registration and use. See Skyscanner Limited v. Domain May Be for Sale, Check Afternic.com Domain Admin, Domain Registries Foundation, D2018-1987 (WIPO Nov. 5, 2018) (finding sufficient bad faith where the respondent registered the domain skyscannerflight.com, the complainant owned the trademark rights to SKYSCANNER in connection with online travel search engine services, and the respondent used the domain name for a webpage with pay-per-click advertisements that directed to third-party travel service providers’ websites).
The Panel therefore finds that Respondent registered and is using the domain name in bad faith.
Complainant has established this element.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <massanuttenresorts.com> domain name be TRANSFERRED from Respondent to Complainant.
Alan L. Limbury, Panelist
Dated: December 13, 2019
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