4355768 Canada Inc. v. tim / tim ward
Claim Number: FA2204001993160
Complainant is 4355768 Canada Inc. (“Complainant”), represented by ROBIC, LLP, Canada. Respondent is tim / tim ward (“Respondent”), Canada.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <crakmedia.co>, registered with NameSilo, 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.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on April 20, 2022; the Forum received payment on April 20, 2022.
On April 20, 2022, NameSilo, LLC confirmed by e-mail to the Forum that the <crakmedia.co> domain name is registered with NameSilo, LLC and that Respondent is the current registrant of the name. NameSilo, LLC has verified that Respondent is bound by the NameSilo, 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 27, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 17, 2022 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@crakmedia.co. Also on April 27, 2022, 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 20, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Richard Hill 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 states that it is specialized in monetizing web traffic and generates sales from such qualified traffic in more than 200 countries. Complainant operates a cost per action (CPA) online advertising network through a platform focused on affiliate marketing, a type of performance-based marketing in which a business rewards one or more affiliates for each lead (i.e., visitor or customer) brought by the affiliate’s own marketing efforts. Complainant’s expertise has allowed for a network of more than 35,000 affiliates (which continues to grow) to be paid over 250 million USD in affiliate commissions so far. In the last three years, Complainant has experienced an exponential growth and is positioned as the leading employer in the web marketing industry in Quebec City, having grown to over 160 employees in the last year. Complainant has rights in the CRAKMEDIA mark through its registration of the mark in the European Union in 2014.
Complainant alleges that the disputed domain name is identical or confusingly similar to its CRAKMEDIA mark as it incorporates the mark in its entirety and merely adds the “.co” country-code top-level domain (“ccTLD”).
According to Complainant, Respondent lacks rights and legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name, nor has Complainant authorized or licensed Respondent to use its CRAKMEDIA mark in any way. Respondent does not use the disputed domain name for any bona fide offering of goods or services, nor a legitimate noncommercial or fair use, but instead uses it to resolve to a website that offers services that compete with those of Complainant, and that gives an address in the same city as Complainant.
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith. Respondent has a pattern of bad faith conduct. Respondent uses the disputed domain name to disrupt Complainant’s business and divert business to its own website for commercial gain: the resolving website offers competing services in the same city as Complainant.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has rights in the mark CRAKMEDIA dating back to 2014 and uses it to offer web marketing services.
The disputed domain name was registered in 2019.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
Respondent is using the disputed domain names to resolve to a web site that offers services that compete with those of Complainant.
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 disputed domain name incorporates Complainant’s CRAKMEDIA mark in its entirety and merely adds the “.co” ccTLD. Under Policy ¶ 4(a)(i), a domain name is generally considered confusingly similar to the mark it incorporates where it merely adds a ccTLD. See ER Marks, Inc. and QVC, Inc. v. Stefan Hansmann, FA 1381755 (Forum May 6, 2011) (“Neither the addition of country code top-level domains, i.e., ‘.co.,’ ‘.de,’ ‘.cr,’ ‘.es,’ nor the insertion of a gTLD has a distinctive function”). Therefore the Panel finds that the disputed domain name is identical to Complainant’s mark under Policy ¶ 4(a)(i).
Complainant has not authorized or licensed Respondent to use its CRAKMEDIA mark in any way. Respondent is not commonly known by the disputed domain name: under Policy ¶ 4(c)(ii), where a response is lacking, relevant WHOIS information may demonstrate that a Respondent is not commonly known by a disputed domain name. See Deutsche Lufthansa AG v. Mohamed elkassaby, FA 1801815 (Forum Sept. 17, 2018) (“The WHOIS lists “Mohamed elkassaby” as registrant of record. Coupled with Complainant’s unrebutted assertions as to absence of any affiliation between the parties, the Panel finds that Respondent is not commonly known by the Domain Name in accordance with Policy ¶ 4(c)(ii).”). Here, the WHOIS information identifies Respondent as “tim / tim ward”. Therefore the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).
The resolving website offers services that compete with those of Complainant. Panels have held that using another’s mark to resolve to a website that offers products or services in competition with a Complainant’s business is not using the domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use. See Coachella Music Festival, LLC v. josh greenly / All Access Tickets, FA1507001629217 (Forum Aug. 10, 2015) (finding that the respondent had failed to provide a bona fide offering of goods or services or a legitimate noncommercial or fair use of the disputed domain name as required under Policy ¶ 4(c)(i) and Policy ¶ 4(c)(iii), where the respondent was using the disputed domain name to host a web page that featured links to services that competed with those of the complainant); see also General Motors LLC v. MIKE LEE, FA 1659965 (Forum Mar. 10, 2016) (finding that “use of a domain to sell products and/or services that compete directly with a complainant’s business does not constitute a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii)”). Thus, the Panel finds that Respondent fails to use the disputed domain name to make a bona fide offering of goods or services under Policy ¶¶ 4(c)(i) or (iii). And the Panel finds that Respondent does not have rights or legitimate interests in the disputed domain name.
Complainant alleges that Respondent has engaged in a pattern of bad faith registration and use of domain names. However, it does not cite any UDRP proceedings in which Respondent was found to have registered and used domain names in bad faith. Therefore the Panel finds that Complainant has failed to satisfy its burden of proof for this allegation and will not further discuss it.
Respondent (who did not reply to Complainant’s contentions) has not presented any plausible explanation for its use of Complainant’s mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain name.
Indeed, as already noted, the resolving website offers competing services. This constitutes bad faith registration and use under Policy ¶ 4(b)(iv). See Asbury Auto Group Inc v. Tex. Int'l Prop Assocs FA 958542 (Forum May 29, 2007) (finding that the respondent's use of the disputed domain name to compete with the complainant's business would likely lead to confusion amongst Internet users as to the sponsorship or affiliation of a competing business and was therefore evidence of bad faith and use); see also Xylem Inc. and Xylem IP Holdings LLC v. YinSi BaoHu YiKaiQi, FA1504001612750 (Forum May 13, 2015) (“The Panel agrees that Respondent’s use of the website to display products similar to Complainant’s, imputes intent to attract Internet users for commercial gain, and finds bad faith per Policy ¶ 4(b)(iv).”). Accordingly, the Panel finds bad faith registration and use per Policy ¶ 4(b)(iv).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <crakmedia.co> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: May 23, 2022
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