Crunchbase, Inc. v. crun block / crun
Claim Number: FA2012001923409
Complainant is Crunchbase, Inc. (“Complainant”), represented by Holly Pranger of Pranger Law PC, United States. Respondent is crun block / crun (“Respondent”), United States.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <crunchbaseexchange.com>, registered with NameCheap, 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.
Steven M. Levy, Esq. as Panelist.
Complainant submitted a Complaint to the Forum electronically on December 1, 2020; the Forum received payment on December 1, 2020.
On December 1, 2020, NameCheap, Inc. confirmed by e-mail to the Forum that the <crunchbaseexchange.com> domain name is registered with NameCheap, Inc. and that Respondent is the current registrant of the name. NameCheap, Inc. has verified that Respondent is bound by the NameCheap, 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 December 3, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 23, 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@crunchbaseexchange.com. Also on December 3, 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 December 28, 2020, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Steven M. Levy, Esq. 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, Crunchbase, Inc., operates an online service that provides financial news, company information, data research, and sales tracking information for entrepreneurs and potential investors. Complainant has rights in the trademark CRUNCHBASE based on its use in commerce since 2007 and its registration with the respective Trademark Offices of Australia, Canada, China, India, Japan, the United States, and others, the earliest of which dates to 2012. Respondent’s <crunchbaseexchange.com> domain name, registered on October 21, 2020, is confusingly similar to Complainant’s mark because it incorporates the mark in its entirety and simply adds the term “exchange” and the “.com” generic top level domain (“gTLD”).
Respondent does not have rights or legitimate interests in the <crunchbaseexchange.com> domain name. Respondent is not commonly known by the disputed domain name and Complainant has not licensed or authorized Respondent to use the CRUNCHBASE mark. Additionally, Respondent does not use the disputed domain name for any bona fide offering of goods or services nor does it make a legitimate noncommercial or fair use thereof. Instead, Respondent uses the domain to pass itself off as Complainant as part of a scam.
Respondent registered and uses the <crunchbaseexchange.com> domain name in bad faith. Respondent has engaged in a pattern of bad faith registration with respect to the CRUNCHBASE mark. Additionally, Respondent seeks to pass itself off as Complainant and divert Internet users for commercial gain. Furthermore, Respondent has constructive knowledge of Complainant’s rights in the CRUNCHBASE mark as shown by it use of the mark on the <crunchbaseexchange.com> website and its use of another domain name, <crunchbasetrade.com>, which is the subject of a prior adverse UDRP decision against an entity believed to be Respondent. Respondent’s knowledge of Complainant’s mark is also shown by the notoriety of the mark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
(1) the domain name registered by Respondent is confusingly similar to a trademark in which Complainant has rights;
(2) Respondent has no rights to or legitimate interests in respect of the domain name; and
(3) the disputed domain name was registered and is being used by Respondent 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 and evidence 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 and supported 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 asserts rights in the CRUNCHBASE mark based on registration with various national trademark offices around the world. Registration of a mark with such national or regional trademark offices is sufficient to demonstrate rights in the mark per Policy ¶ 4(a)(i). See Margaritaville Enterprises, LLC v. Neil Wein, FA 1916531 (Forum Nov. 9, 2020) (“It is well established by decisions under this Policy that a trademark registered with a national authority is evidence of trademark rights”). Since Complainant provides copies of its registration certificates for the CRUNCHBASE mark with various national trademark offices[i], the Panel finds that Complainant has rights in the mark under Policy ¶ 4(a)(i).
Complainant argues that Respondent’s <crunchbaseexchange.com> domain name is confusingly similar to Complainant’s CRUNCHBASE mark because it wholly incorporates the mark and simply adds the term “exchange” and the “.com” gTLD. The addition of a generic term and a gTLD to a mark typically does not negate any confusing similarity between a disputed domain name and mark under Policy ¶ 4(a)(i). See Bloomberg Finance L.P. v. Nexperian Holding Limited, FA 1782013 (Forum June 4, 2018) (“Where a relevant trademark is recognisable within a disputed domain name, the addition of other terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) does not prevent a finding of confusing similarity under the first element.”); 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.”). Thus, the Panel finds that the disputed domain name is confusingly similar to the CRUNCHBASE mark under Policy ¶ 4(a)(i).
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). Should it succeed in this effort, the burden then shifts to Respondent to show that 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”).
Complainant argues that Respondent does not have rights or legitimate interests in the <crunchbaseexchange.com> domain name because Respondent is not commonly known by the disputed domain name and Complainant has not licensed or authorized Respondent to use the CRUNCHBASE mark. In considering this issue, WHOIS information can be used to show that a respondent is or is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See H-D U.S.A., LLC, v. ilyas Aslan / uok / Domain Admin ContactID 5645550 / FBS INC / Whoisprotection biz, FA 1785313 (Forum June 25, 2018) (“The publicly available WHOIS information identifies Respondent as ‘Ilyas Aslan’ and so there is no prima facie evidence that Respondent might be commonly known by either of the [<harleybot.bid> and <harleybot.com>] domain names.”) Additionally, lack of a license or authorization to use a mark may constitute a further showing that a respondent lacks rights in a mark. See SPTC, Inc. and Sotheby’s v. Tony Yeh shiun, FA 1810835 (Forum Nov. 13, 2018) (finding no rights or legitimate interests in the <sothebys.email> domain name where the WHOIS identified Respondent as “Tony Yeh shiun,” Complainant never authorized or permitted Respondent to use the SOTHEBY’S mark, and Respondent failed to submit a response.). Here, the WHOIS information lists the registrant of the <crunchbaseexchange.com> domain name as “crun block / crun” and no evidence has been submitted to suggest that Respondent is known otherwise or that Complainant has authorized Respondent to use the CRUNCHBASE mark in any way. Thus, the Panel finds that Respondent is not commonly known by the domain name under Policy ¶ 4(c)(ii).
Additionally, Complainant argues that Respondent does not use the disputed domain name for any bona fide offering of goods or services and that it has not made a legitimate noncommercial or fair use thereof. Instead, it asserts, the domain name is used to pass Respondent off as Complainant as part of a phishing scam. The use of a disputed domain name to pass oneself off as a complainant and engage in a phishing scheme does not constitute a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶ 4(c)(i) or (iii). See Ripple Labs Inc. v. Jessie McKoy / Ripple Reserve Fund, FA 1790949 (Forum July 9, 2018) (finding the respondent did not use the domain name to make a bona fide offering of goods or services per Policy ¶ 4(c)(i) or for a legitimate noncommercial or fair use per Policy ¶ 4(c)(iii) where the website resolving from the disputed domain name featured the complainant’s mark and various photographs related to the complainant’s business); see also DaVita Inc. v. Cynthia Rochelo, FA 1738034 (Forum July 20, 2017) (”Passing off in furtherance of a phishing scheme is not considered a bona fide offering of goods or services or legitimate noncommercial or fair use.”) Complainant provides screenshots of the resolving website for the disputed domain name that show Respondent’s use of the CRUNCHBASE mark, a “CB” logo, and images of Complainant’s actual officers claiming that they are the officers of Respondent’s business entity. Complainant also notes Respondent’s website features an image of a United Kingdom Certificate of Incorporation for a company called “CRUNCH BASE EXCHANGE” however, upon Complainant’s further research, the listed document number has been found to actually be associated with a third-party company whose name bears no relation to the disputed domain name or the term “Crunch Base” (a copy of the actual UK Certificate of Incorporation has also been provided). Complainant contends that Respondent uses all of these website elements and references to Complainant as part of a scam to induce users to invest money through Respondent’s website. and Complainant contends this is further evidence of Respondent’s attempts to pass itself off as a legitimate investment branch of Complainant’s business. As Respondent has filed no Response or made any other submission in this case it has not refuted Complainant’s prima facie case under Policy ¶ 4(a)(ii). Thus, by a preponderance of the available evidence, the Panel finds that Respondent is not using the domain name for a bona fide offering of goods or services under Policy ¶ 4(c)(i) and is also not making a legitimate noncommercial or fair use thereof under Policy ¶ 4(c)(iii).
Complainant argues that Respondent has constructive knowledge of Complainant’s rights in the CRUNCHBASE mark based on registration of the mark, Respondent’s prior use of the mark in another disputed domain name, and the notoriety of the mark. While constructive knowledge is typically not considered under the Policy, Panels have found actual knowledge based on the fame of a mark and the use made of it by a respondent. See Sears Brands, LLC v. Airhart, FA 1350469 (Forum Dec. 2, 2010) (stating that constructive notice generally will not suffice for a finding of bad faith); see also United States Postal Service v. Yongkun Wang, FA 1788170 (Forum July 11, 2018) (finding Respondent had actual knowledge of Complainant’s rights in the USPS mark “given the widespread use of Complainant’s mark and the fact that Respondent registered four separate domain names all of which include Complainant’s USPS mark in its entirety”). Although making a brief mention of “the … notoriety of the CRUNCHBASE Marks” Complainant has provided no evidence to support this claim. Further, while it does provide a screenshot of a page from its own <crunchbase.com> website showing a list of its “Current Team” and “Board Members and Advisors”, it does not supply any other evidence showing the conduct and nature of its business or the reputation that its mark has gained with the public. However, Respondent’s extensive use of Complainant’s mark on the <crunchbaseexchange.com> website and its reference to information that is unique to Complainant does show Respondent’s knowledge of Complainant and its marks. Therefore, the Panel finds it highly likely that Respondent had actual knowledge of Complainant’s rights in the CRUNCHBASE mark at the time it registered the disputed domain name.
Next, Complainant argues that Respondent registered and uses the <crunchbaseexchange.com> domain name in bad faith because Respondent seeks to pass itself off as Complainant and divert Internet users for commercial gain. The use of a disputed domain name to pass oneself off as a complainant and divert Internet users seeking a complainant to a respondent’s own website is evidence of bad faith under Policy ¶ 4(b)(iv). See Bittrex, Inc. v. Caroline Alves Maia, FA 1796113 (Forum Aug. 6, 2018) (finding the respondent registered and used the domain name in bad faith per Policy ¶ 4(b)(iv) because the respondent used the disputed domain name to present users with a website that was “virtually identical, with the same color scheme, the same layout and the same substantive content” and used the website to gain access to users’ cryptocurrency accounts); see also Allianz of Am. Corp. v. Bond, FA 680624 (Forum June 2, 2006) (finding bad faith registration and use under Policy ¶ 4(b)(iv) where the respondent was diverting Internet users searching for the complainant to its own website and likely profiting). As noted above, Complainant provides screenshots of the resolving website for the disputed domain name that features Complainant’s mark, a “CB” logo, and images of Complainant’s officers, all of which Complainant contends are used by Respondent to make the website appear to be a legitimate investment branch of Complainant’s business and to capitalize on users’ confusion for commercial benefit. As Respondent has not participated in this case to explain its actions, Complainant’s reasonable and supported allegations and evidence go unrebutted. Therefore, the Panel finds that the <crunchbaseexchange.com> domain name was registered and use by Respondent in bad faith per Policy ¶ 4(b)(iv).
Complainant also argues that Respondent registered and uses the <crunchbaseexchange.com> domain name in bad faith because Respondent has engaged in a pattern of bad faith registration. Under Policy ¶ 4(b)(ii), previous UDRP rulings against a respondent or its ownership of other infringing domain names may indicate that the respondent engages in a pattern of a bad faith registration. Here, Complainant contends that Respondent is also the registrant of the <crunchbasetrade.com> domain name that was ordered transferred to Complainant in a previous UDRP ruling based on the fact that the content of that website – a screenshot of which was submitted – is nearly identical to that of the <crunchbaseexchange.com> site, the fact that the named Respondent in the prior case – crunch trade – is similar to the name of the present Respondent, and the fact that Respondents in both cases use false address information in the WHOIS records of their respective domain names. While not conclusive, the Panel finds Complainant’s assertions on this issue to be reasonable and they go unrefuted by the Respondent. As such, further evidence of bad faith is found from Respondent’s pattern of conduct per Policy ¶ 4(b)(ii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <crunchbaseexchange.com> domain name be TRANSFERRED from Respondent to Complainant.
Steven M. Levy, Esq., Panelist
Dated: December 29, 2020
[i] The Panel notes that the submitted European Intellectual Property Office trademark registration certificate lists the owner as “TechCrunch, Inc.” and no evidence of an assignment of these registrations to Complainant or any relationship between these named entities is provided. As such, this certificate will not be considered. However, as other submitted registration certificates list the owner as “Crunchbase, Inc.” the Panel finds that Complainant has met its threshold burden of proving that it owns trademark rights in the CRUNCHBASE mark under Policy ¶ 4(a)(i).
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