Trex Company, Inc. v. uhra yilan
Claim Number: FA2201001982345
Complainant is Trex Company, Inc. ("Complainant"), represented by Lois B. Duquette of McNees Wallace & Nurick LLC, Pennsylvania, USA. Respondent is uhra yilan ("Respondent"), Turkey.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <trexsignature.com>, registered with Dynadot, 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.
David E. Sorkin as Panelist.
Complainant submitted a Complaint to the Forum electronically on January 28, 2022; the Forum received payment on January 28, 2022.
On January 28, 2022, Dynadot, LLC confirmed by email to the Forum that the <trexsignature.com> domain name is registered with Dynadot, LLC and that Respondent is the current registrant of the name. Dynadot, LLC has verified that Respondent is bound by the Dynadot, 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 January 31, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 22, 2022 by which Respondent could file a Response to the Complaint, via email to all entities and persons listed on Respondent's registration as technical, administrative, and billing contacts, and to postmaster@trexsignature.com. Also on January 31, 2022, the Written Notice of the Complaint, notifying Respondent of the email 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 February 24, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed David E. Sorkin 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 manufactures a variety of goods including composite lumber and building materials. Complainant has used TREX and related marks in connection with these goods and related services since 1993. Complainant owns numerous registrations for the TREX marks in the United States and worldwide, including a United States registration for TREX SIGNATURE in standard character form issued in 2016.
Respondent registered the disputed domain name <trexsignature.com> via a privacy registration service in December 2021. The domain name redirects to a web page at sedo.com, a domain name marketplace, stating that the domain name is for sale at a price of $25,000. Complainant alleges that Respondent has no rights in the domain name and is squatting on the name for commercial gain.
Complainant contends on the above grounds that the disputed domain name <trexsignature.com> is identical to its TREX SIGNATURE mark; that Respondent lacks rights or legitimate interests in the disputed domain name; and that the disputed domain name was registered and is being used in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that the disputed domain name is identical to a mark in which Complainant has rights; that Respondent lacks rights or legitimate interests in respect of the disputed domain name; and that the disputed domain name was registered and is being used 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 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 Overview of WIPO Panel Views on Selected UDRP Questions, § 4.3 (3d ed. 2017), available at http://www.wipo.int/amc/en/domains/search/overview3.0/; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (dismissing complaint where complainant failed to "produce clear evidence to support its subjective allegations").
The disputed domain name <trexsignature.com> corresponds to Complainant's registered TREX SIGNATURE trademark, omitting the space and appending the ".com" top-level domain. Such alterations are normally treated as inconsequential for purposes of paragraph 4(a)(i) of the Policy. See, e.g., Brickyard Trademarks, Inc. & Indianapolis Motor Speedway, LLC v. robdaddy.com a/k/a Robert Thomas, FA 155132 (Forum June 11, 2003) (finding <indianapolismotorspeedway.com> identical to INDIANAPOLIS MOTOR SPEEDWAY); Trex Co., Inc. v. Santiago Valencia, FA 1954123 (Forum Aug. 4, 2021) (finding <trexcontractors.com> confusingly similar to TREX). The Panel considers the disputed domain name to be identical to a mark in which Complainant has rights.
Under the Policy, the Complainant must first make a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain name, and then the burden shifts to the Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Productions, Inc. v. Entertainment Commentaries, FA 741828 (Forum Aug. 18, 2006).
The disputed domain name incorporates Complainant's registered mark without authorization. Respondent does not appear to have made any active use of the domain name, apart from redirecting Internet users to a page at which the domain name is offered for sale. Such use does not give rise to rights or legitimate interests under the Policy. See, e.g., United Services Automobile Ass'n v. Cyan Yo, FA 1931638 (Forum Mar. 15, 2021) (finding lack of rights or interests in similar circumstances); Capital One Financial Corp. v. Haimin Xu, FA 1819364 (Forum Jan. 8, 2019) (same).
Complainant has made a prima facie case that Respondent lacks rights and legitimate interests in the domain name, and Respondent has failed to come forward with any evidence of such rights or interests. Accordingly, the Panel finds that Complainant has sustained its burden of proving that Respondent lacks rights or legitimate interests in respect of the disputed domain name.
Finally, Complainant must show that the disputed domain name was registered and is being used in bad faith. Under paragraph 4(b)(i) of the Policy, bad faith may be shown by evidence that a domain name was acquired "primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of [Respondent's] documented out-of-pocket costs directly related to the domain name."
Respondent used a privacy registration service to register a domain name corresponding to Complainant's registered mark, and the only apparent use of the domain name has been to redirect users to a page at which the domain name is offered for sale. Respondent has not come forward with any explanation for the selection of the domain name. Under the circumstances, the Panel considers it reasonable to infer that Respondent was aware of Complainant and its TREX SIGNATURE mark at all relevant times, and that Respondent's registration of the domain name was targeted at Complainant or its mark. Respondent's general offer to sell the domain name at a price far in excess of Respondent's out-of-pocket costs, together with this inference that the offer was primarily targeted at Complainant or its competitors, is indicative of bad faith under paragraph 4(b)(i). See, e.g., Capital One Financial Corp. v. Haimin Xu, supra (finding bad faith in similar circumstances). The Panel finds that the disputed domain name was registered and is being used in bad faith.
Having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <trexsignature.com> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: February 25, 2022
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