Arris Enterprises LLC v. Ruckus Wireless
Claim Number: FA2111001973092
Complainant is Arris Enterprises LLC (“Complainant”), represented by William Schultz of Merchant & Gould, P.C., Minnesota, USA. Respondent is Ruckus Wireless (“Respondent”), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <ruckuswirelesss.com>, registered with IONOS SE.
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 November 12, 2021; the Forum received payment on November 12, 2021.
On November 22, 2021, IONOS SE confirmed by e-mail to the Forum that the <ruckuswirelesss.com> domain name is registered with IONOS SE and that Respondent is the current registrant of the name. IONOS SE has verified that Respondent is bound by the IONOS SE 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 23, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 13, 2021 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@ruckuswirelesss.com. Also on November 23, 2021, 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 19, 2021, 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.
A. Complainant
Complainant contends as follows:
Complainant provides a variety of goods in the wireless access and computer products business.
Complainant asserts rights in the RUCKUS mark through its registration of the mark with the United States Patent and Trademark Office (“USPTO”).
Respondent’s <ruckuswirelesss.com> domain name is identical or confusingly similar to Complainant’s mark, as it includes the entire mark, only adding a generic term, an extra “s”, and the “.com” generic top-level domain (“gTLD”).
Respondent has no rights or legitimate interests in the at-issue domain name. Complainant has not authorized or licensed Respondent to use the RUCKUS mark, nor is Respondent commonly known by the domain name. Further, Respondent is not using the disputed domain name in connection with a bona fide offering of goods and services or legitimate noncommercial or fair use, as the resolving website presents users with hyperlinks to Complainant’s competitors.
Respondent registered and uses the <ruckuswirelesss.com> domain name in bad faith. Respondent’s resolving website disrupts Complainant’s business, as it redirects users to Complainant’s competitors. Similarly, the resolving website attempts to attract users for commercial gain, as such website displays advertisements to Complainant’s competitors. Finally, Respondent had actual notice of Complainant’s rights in the mark before it registered the <ruckuswirelesss.com> domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has rights in the RUCKUS mark.
Complainant’s rights in RUCKUS existed prior to Respondent’s registration of the at-issue domain name.
Respondent is not authorized to use Complainant’s trademarks.
Respondent’s at-issue domain name addresses a parked website that displays pay-per-click hyperlinks some of which are related to Complainant’s business.
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 confusingly similar to a trademark in which Complainant has rights.
Complainant’s ownership of a USPTO trademark registration for its RUCKUS mark establishes Complainant’s rights in such mark for the purposes of Policy ¶ 4 (a)(I). See Recreational Equipment, Inc. v. Liu Chan Yuan, FA 2107001954773 (Forum Aug. 9, 2021) (“Registration of a mark with the USPTO is sufficient to demonstrate rights in the mark per Policy ¶ 4(a)(i)”).
The at-issue domain name consists of Complainant’s RUCKUS trademark followed by the term “wireless” and an extra “s,” with all followed by the top level domain name “.com.” The differences between <ruckuswirelesss.com> and Complainant’s RUCKUS trademark are insufficient to distinguish the domain name from Complainant’s trademark for the purposes of the Policy. Therefore, the Panel finds pursuant to Policy ¶ 4(a)(i) that Respondent’s <ruckuswirelesss.com> domain name is confusingly similar to Complainant’s RUCKUS trademark. See MTD Products Inc. v. J Randall Shank, FA 1783050 (Forum June 27, 2018) (“The disputed domain name is confusingly similar to Complainant’s mark as it wholly incorporates the CUB CADET mark before appending the generic terms ‘genuine’ and ‘parts’ as well as the ‘.com’ gTLD.”); see also, PathAdvantage Associated v. VistaPrint Technologies Ltd, FA 1625731 (Forum July 23, 2015) (holding that the <pathadvantages.com> domain name was confusingly similar to the PATHADVANTAGE trademark because the domain name “merely adds the letter ‘s’ to Complainant’s mark”).
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 the 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. See Emerson Electric Co. v. golden humble / golden globals, FA 1787128 (Forum June 11, 2018) (“lack of evidence in the record to indicate a respondent is authorized to use [the] complainant’s mark may support a finding that [the] respondent does not have rights or legitimate interests in the disputed domain name per Policy ¶ 4(c)(ii)”).
The WHOIS information for the at-issue domain name identifies the domain name’s registrant as “Ruckus Wireless.” However the record before the Panel contains no corroborating evidence tending to prove that Respondent is commonly known by either the <ruckuswirelesss.com> domain name or by RUCKUS. The validity of Respondent’s WHOIS information is further impeached given that Complainant shows such information contains a phony registrant address. The Panel therefore concludes that Respondent is not commonly known by the <ruckuswirelesss.com> domain name for the purposes of Policy ¶ 4(c)(ii). See Google Inc. v. S S / Google International, FA1506001625742 (Forum Aug. 4, 2015) (“Respondent did identify itself as ‘Google International’ in connection with its registration of the Disputed Domain Name, and this is reflected in the WHOIS information. However, Respondent has not provided affirmative evidence from which the Panel can conclude that Respondent was commonly known by the Disputed Domain Name before Respondent’s registration thereof.”).
Respondent uses the <ruckuswirelesss.com> domain name to address a parked webpage featuring pay-per-click hyperlinks, some of which are related to Complainant’s competition. Complainant’s use of the <ruckuswirelesss.com> domain name in this manner fails to indicate either a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use of the domain name under Policy ¶ 4(c)(iii). See Ashley Furniture Industries, Inc. v. domain admin / private registrations aktien gesellschaft, FA1506001626253 (Forum July 29, 2015) (“Respondent is using the disputed domain name to resolve to a web page containing advertising links to products that compete with those of Complainant. The Panel finds that this does not constitute a bona fide offering or a legitimate noncommercial or fair use.”); see also, McGuireWoods LLP v. Mykhailo Loginov / Loginov Enterprises d.o.o, FA1412001594837 (Forum Jan. 22, 2015) (“The Panel finds Respondent’s use of the disputed domain names to feature parked hyperlinks containing links in competition with Complainant’s legal services is not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), and it is not a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).”).
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).
As discussed below without limitation, 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.
First, Respondent’s use of the at-issue domain name to address a webpage displaying pay-per-click links that compete with Complainant shows Respondent’s bad faith under Policy ¶ 4(b)(iii) and under Policy ¶ 4(b)(iv). Notably, such usage is disruptive to Complainant’s business and demonstrations that Respondent is attempting to attract internet users for commercial gain by trading off the Complainant’s trademark via Respondent’s confusingly similar domain name. See Transamerica Corporation v. Carolina Rodrigues / Fundacion Comercio Electronico, FA 1798316 (Forum Aug. 20, 2018) (“Respondent's use of the domain name to link to competitors of Complainant, presumably generating pay-per-click or referral fees for Respondent, is indicative of bad faith under paragraphs 4(b)(iii) and 4(b)(iv).”); see also Zynex Medical, Inc. v. New Ventures Services, Corp, FA 1788042 (Forum July 2, 2018) (“The resolving webpage [] appears to display [competing] links such as “Electrical Stimulation” and “Physical Therapy Software.” Accordingly, the Panel agrees that Respondent disrupts Complainant’s business and attempted to commercially benefit off Complainant’s mark in bad faith under Policy ¶¶ 4(b)(iii) & (iv).”).
Next, Respondent engages in a form of typosquatting. Typosquatting is a practice whereby a domain name registrant deliberately introduces typographical errors or misspellings into a trademark, or some other name associated with another, and then uses the resulting string in a domain name. The registrant hopes that internet users will inadvertently type the malformed string when searching for content related to the domain name’s target trademark, or upon viewing the domain name will confound the two. The typosquatting domain name registrant may then further exploit the internet users’ confusion. The typosquatter may additionally benefit when search engines return links to the typosquatter’s confusingly similar domain name when they the search engine is queried by users that are intent on finding references to a domain name’s typosquatted trademark online. Here, Respondent inserts an extra “s” into Complainant’s official domain name and website address, <ruckuswireless.com>, and incorporates the misspelling in Respondent’s at-issue domain name. At a glance, the at-issue domain name is easily confused with Complainant’s official website at <ruckuswireless.com>. It is also likely that internet users may at times inadvertently add an extra “s” when attempting to type Complainant’s operative domain name into a web browser and then be waylaid to Respondent’s <ruckuswirelesss.com> website. Typosquatting, in itself, indicates bad faith under Policy ¶ 4(a)(iii). See Computerized Sec. Sys., Inc. v. Hu, FA 157321 (Forum June 23, 2003) (finding that the respondent engaged in typosquatting, which is evidence of bad faith registration and use under Policy ¶ 4(a)(iii)).
Moreover, Respondent had actual knowledge of Complainant’s rights in the RUCKUS mark when it registered <ruckuswirelesss.com>as a domain name. Respondent’s actual knowledge is evident from the notoriety of Complainant’s mark; from Respondent’s inclusion of the suggestive term “wireless” in the at-issue domain name; and from Respondent’s typosquatting of the Complainant’s <ruckuswireless.com> domain name as discussed elsewhere herein. Respondent’s registration and use of a confusingly similar domain name with knowledge of Complainant’s rights in such domain name shows Respondent’s bad faith pursuant to Policy ¶4(a)(iii). See Google Inc. v. Ahmed Humood, FA1411001591796 (Forum Jan. 7, 2015) (“This Panel makes that inference; Respondent has actual knowledge of Complainant’s mark at the time of domain name registration based on the fame of Complainant’s GOOGLE mark and Respondent’s use of one of the disputed domain names to detail Internet domain name registration and maintenance services related to and in competition with Complainant.”); see also, Norgren GmbH v. Domain Admin / Private Registrations Aktien Gesellschaft, FA1501001599884 (Forum Feb. 25, 2014) (holding that the respondent had actual knowledge of the complainant and its rights in the mark, thus demonstrating bad faith registration under Policy ¶ 4(a)(iii), where the respondent was using the disputed domain name to purposely host links related to the complainant’s field of operation).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <ruckuswirelesss.com> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: December 21, 2021
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