Apeel Technology, Inc. v. Alexandr Erofeevskiy
Claim Number: FA2004001893094
Complainant is Apeel Technology, Inc. (“Complainant”), represented by Lisa Greenwald-Swire of Fish & Richardson, P.C., Minnesota, USA. Respondent is Alexandr Erofeevskiy (“Respondent”), Russia.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <apeel-sciences.com>, registered with Registrar of Domain Names REG.RU 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.
Paul M. DeCicco, as Panelist.
Complainant submitted a Complaint to the Forum electronically on April 21, 2020; the Forum received payment on April 21, 2020.
On April 23, 2020, Registrar of Domain Names REG.RU LLC confirmed by e-mail to the Forum that the <apeel-sciences.com> domain name is registered with Registrar of Domain Names REG.RU LLC and that Respondent is the current registrant of the name. Registrar of Domain Names REG.RU LLC has verified that Respondent is bound by the Registrar of Domain Names REG.RU 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 April 28, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 18, 2020 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@apeel-sciences.com. Also on April 28, 2020, 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 May 26, 2020, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Paul M. DeCicco 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.
The Panel notes that the relevant Registration Agreement is written in Russian making the favored language of the proceedings also in Russian. However, pursuant to UDRP Rule 11(a), the Panel finds that there is a likely possibility that the Respondent is conversant and/or proficient in the English language and further that conducting the proceeding is Russian would unfairly burden Complainant. Importantly, Respondent, although having been given appropriate notice of the instant complaint, has failed to offer any objection to going forward in English. Therefore, the Panel finds that the proceeding should continue in English.
A. Complainant
Complainant contends as follows:
Complainant, Apeel Technology, Inc. develops revolutionary plant-derived products, including edible coatings made from natural plant extracts that allow produce suppliers to maintain produce quality and extend shelf life.
Complainant has rights in the APEEL SCIENCES mark based upon its registration with the United States Patent and Trademark Office (“USPTO”).
Respondent’s <apeel-sciences.com> domain name is identical or confusingly similar as it contains Complainant’s APEEL SCIENCES mark in its entirety, merely adding the generic top level domain (“gTLD”) “.com.”
Respondent has no rights or legitimate interests in the <apeel-sciences.com> domain name. Respondent is not licensed or authorized to use Complainant’s APEEL SCIENCES mark and is not commonly known by the at-issue domain name. Additionally, Respondent doesn’t use the domain for any bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent fails to make an active use of the at-issue domain name.
Respondent registered and uses the <apeel-sciences.com> domain name in bad faith. Respondent fails to make an active use of the domain name. Respondent has employed a privacy service to hide its identity. Respondent has failed to respond to Complainant’s cease and desist letters. Finally, Respondent had actual knowledge or constructive notice of Complainant’s APEEL SCIENCES mark prior to registering the <apeel-sciences.com> domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has rights in the APEEL SCIENCES trademark.
Respondent is not affiliated with Complainant and had not been authorized to use Complainant’s trademark in any capacity.
Respondent registered the at‑issue domain name after Complainant acquired rights in the APEEL SCIENCES trademark.
Respondent’s holds the at-issue domain name passively.
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 at-issue domain name is identical to a trademark in which Complainant has rights.
Complainant’s registration of the APEEL SCIENCES mark with the USPTO sufficiently demonstrates Complainant’s rights in a mark under Policy ¶ 4(a)(i). See Haas Automation, Inc. v. Jim Fraser, FA 1627211 (Forum Aug. 4, 2015) (finding that Complainant’s USPTO registrations for the HAAS mark sufficiently demonstrate its rights in the mark under Policy ¶ 4(a)(i)).
Further, Respondent’s <apeel-sciences.com>domain name incorporates Complainant’s APEEL SCIENCES trademark with the mark’s domain name impermissible space replaced by a hyphen, all followed by the top-level domain name “.com.” However, the slight difference between Complainant’s trademark and Respondent’s domain name do nothing to distinguish the at-issue domain name from such trademark pursuant to Policy ¶ 4(a)(i) since hyphens and top-level domain names are disregarded for the purposes of Policy ¶ 4(a)(i) analysis Therefore, the Panel concludes that Respondent’s <apeel-sciences.com> domain name is identical to Complainant’s APEEL SCIENCES trademark. See Daniel Handler v. Masanori Toriimoto / PLAN-B Co.,Ltd, FA 778986 (Forum May 7, 2018) (finding that hyphens and top-level domains are irrelevant for purposes of the Policy); see also, Blue Cross and Blue Shield Association v. Shi Lei aka Shilei, FA 1784643 (Forum June 18, 2018) (“A TLD (whether a gTLD, sTLD or ccTLD) is disregarded under a Policy ¶4(a)(i) analysis because domain name syntax requires TLDs.”).
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. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006). Since Respondent failed to respond, Complainant’s prima facie showing acts conclusively.
Respondent lacks both rights and legitimate interests in respect of the at-issue domain name. Respondent is not authorized to use Complainant’s trademark in any capacity and, as discussed below, there are no Policy ¶ 4(c) circumstances from which the Panel might find that Respondent has rights or interests in respect of the at‑issue domain name.
The WHOIS information for the at-issue domain name identifies the domain name’s registrant as “Alexandr Erofeevskiy” and the record before the Panel contains no evidence tending to prove that Respondent is commonly known by the <apeel-sciences.com>domain name. The Panel therefore concludes that Respondent is not commonly known by the <apeel-sciences.com> domain name for the purposes of Policy ¶ 4(c)(ii). See Braun Corp. v. Loney, FA 699652 (Forum July 7, 2006) (concluding that the respondent was not commonly known by the disputed domain names where the WHOIS information, as well as all other information in the record, gave no indication that the respondent was commonly known by the domain names, and the complainant had not authorized the respondent to register a domain name containing its registered mark).
Respondent holds the <apeel-sciences.com> domain name passively. In particular, Complainant shows that browsing to the at-issue domain name returns an error message. Respondent’s passive holding of the at-issue domain name indicates neither a bona fide offering of goods or services under Policy ¶ 4 (c)(i), nor a non-commercial or fair use pursuant to Policy ¶ 4(c)(iii). See Michelin North America, Inc. v. Energie Media Group, FA 451882 (Forum Aug. 7, 2012) (finding that inactive use, or “passive holding,” of the disputed domain name by a respondent “permits the inference that [the respondent] lacks rights and legitimate interests in the domain names.”)
Given the forgoing, Complainant satisfies its initial burden and conclusively demonstrates Respondent’s lack of rights and lack of interests in respect of the at-issue domain name under Policy ¶ 4(a)(ii).
Respondent’s <apeel-sciences.com> domain name was registered and used in bad faith. Although Complainant makes no cognizable arguments that would fall under Policy ¶ 4(b), such arguments are not required as they are merely illustrative rather than exclusive to support a finding of bad faith. See Home Interiors & Gifts, Inc. v. Home Interiors, D2000-0010 (WIPO Mar. 7, 2000) (“[J]ust because Respondent’s conduct does not fall within the ‘particular’ circumstances set out in [¶ 4(b)], does not mean that the domain names at issue were not registered in and are not being used in bad faith.”). As discussed below, bad faith circumstances are present which compel the Panel to conclude that Respondent acted in bad faith pursuant to paragraph 4(a)(iii) of the Policy.
As mentioned elsewhere herein regarding rights and legitimate interests, Respondent fails to make any active use of the <apeel-sciences.com> domain name. Browsing to the <apeel-sciences.com> domain name returns an error message indicating that the domain name’s address cannot be reached. Respondent’s passive holding of the <apeel-sciences.com> domain name shows Respondent’s bad faith registration and use of the domain name per Policy ¶ 4(a)(iii). See Marsh Supermarkets Company, LLC, formerly known as Marsh Supermarkets, Inc. v. Choi Sungyeon, FA1312001532854 (Forum Feb. 25, 2014) (“Therefore, the Panel finds that Respondent registered and is using the <marshsupermarkets.com> domain name in bad faith pursuant to Policy ¶ 4(a)(iii) because Respondent has failed to make an active use of the disputed domain name.”); see also, 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).”); see also, The Toronto-Dominion Bank v. Yi Liu, FA1904001838897 (Forum May 15, 2019) (finding bad faith where respondent’s domain name addressed a blank page).
Additionally, Respondent registered <apeel-sciences.com> and continued to hold the confusingly similar domain name knowing that Complainant had trademark rights in the APEEL SCIENCES trademark. Respondent’s knowledge is evident from the notoriety of Complainant’s trademark and from the fact that Respondent was given notice of Complainant’s rights in the mark via several cease and desist communications directed from Complainant to Respondent. While Respondent failed to respond to Complainant’s communications, Respondent nevertheless admits by its silence to Complainant’s having rights in APEEL SCIENCES. It is thus apparent that Respondent intentionally registered the at-issue domain name to improperly exploit its trademark value, rather than for some benign reason. Respondent’s prior knowledge of Complainant's trademark further indicates that Respondent registered and used the <apeel-sciences.com>domain name in bad faith pursuant to Policy ¶ 4(a)(iii). See Minicards Vennootschap Onder FIrma Amsterdam v. Moscow Studios, FA 1031703 (Forum Sept. 5, 2007) (holding that respondent registered a domain name in bad faith under Policy ¶ 4(a)(iii) after concluding that respondent had "actual knowledge of Complainant's mark when registering the disputed domain name").
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <apeel-sciences.com> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: May 26, 2020
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