Crisp & Green LLC v. Eldon Dixon
Claim Number: FA2205001995806
Complainant is Crisp & Green LLC (“Complainant”), represented by Joel D. Leviton of STINSON LLP, Minnesota, USA. Respondent is Eldon Dixon (“Respondent”), Canada.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <crisspandgreen.com>, registered with NameCheap, Inc.
The undersigned certifies that she has acted independently and impartially and to the best of her knowledge has no known conflict in serving as Panelist in this proceeding.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to the Forum electronically on May 10, 2022; the Forum received payment on May 10, 2022.
On May 10, 2022, NameCheap, Inc. confirmed by e-mail to the Forum that the <crisspandgreen.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 May 11, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 31, 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@crisspandgreen.com. Also on May 11, 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 June 3, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Sandra J. Franklin 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
1. Respondent’s <crisspandgreen.com> domain name is confusingly similar to Complainant’s CRISP & GREEN mark.
2. Respondent does not have any rights or legitimate interests in the <crisspandgreen.com> domain name.
3. Respondent registered and uses the <crisspandgreen.com> domain name in bad faith.
B. Respondent did not file a Response.
Complainant operates chain restaurants that provides healthy foods. Complainant holds a registration for the CRISP & GREEN mark with the United States Patent and Trademark Office (USPTO) (Reg. No. 5,183,533, registered on April 11, 2017).
Respondent registered the <crisspandgreen.com> domain name on April 5, 2022, and uses it to engage in a phishing scheme.
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 Panel finds that Complainant has rights in the CRISP & GREEN mark through its registration of the mark with the USPTO. 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)”).
Respondent’s <crisspandgreen.com> domain name uses the CRISP & GREEN mark, changes the ampersand to the word “and,” and add the letter “s”, and the “.com” gTLD. These changes do not differentiate a disputed domain name from a mark under Policy ¶ 4(a)(i). See Russell & Bromley Limited v. KIM H. SUK, FA 1729773 (Forum June 12, 2017) (finding respondent’s <russellandbromley.com> domain name identical to complainant’s RUSSEL & BROMLEY mark, because “[t]he ampersand is a prohibited character in a domain name so there is no difference between the ampersand (in the mark) and the word ‘and’ (in the domain name)”); see also Barnesandnoble.com LLC v. Your One Stop Web Shop, FA 670171 (Forum May 3, 2006) (finding that the additions of the letter “s” and generic top-level domains to the disputed <barnesandnobles.info> and <barnesandnobles.biz> domain names failed to avoid the confusing similarity between the domain names and the complainant’s BARNESANDNOBLE.COM mark pursuant to Policy ¶ 4(a)(i)). Therefore, the Panel finds that Respondent’s <crisspandgreen.com> domain name is confusingly similar to Complainant’s CRISP & GREEN mark.
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(i).
Once Complainant makes a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), the burden shifts to Respondent to show 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 contends that Respondent lacks rights and legitimate interests in the <crisspandgreen.com> domain name because Respondent is not commonly known by the domain name and is not authorized to use the CRISP & GREEN mark. The WHOIS information shows that Respondent is known as “Eldon Dixon.” Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name, and thus has no rights under Policy ¶ 4(c)(ii). See Amazon Technologies, Inc. v. Suzen Khan / Nancy Jain / Andrew Stanzy, FA 1741129 (Forum Aug. 16, 2017) (finding that respondent had no rights or legitimate interests in the disputed domain names when the identifying information provided by WHOIS was unrelated to the domain names or respondent’s use of the same); see also Radio Flyer Inc. v. er nong wu, FA 2011001919893 (Forum Dec. 16, 2020) (“Here, the WHOIS information lists “er nong wu” as the registrant and no information suggests Complainant has authorized Respondent to use the RADIO FLYER mark in any way. Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).”).
Complainant also argues that Respondent does not use the <crisspandgreen.com> domain name for a bona fide offering of goods or services or a legitimate noncommercial or fair use because the disputed domain name is used in connection with a phishing scheme. Using a disputed domain name to engage in a phishing scheme is not a bona fide offering of goods and services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) and (iii). See Chevron Intellectual Property LLC v. Thomas Webber / Chev Ronoil Recreational Sport Limited, FA 1661076 (Forum Mar. 15, 2016) (finding that the respondent had failed to provide a bona fide offering of goods or services or any legitimate noncommercial or fair use, stating, “Respondent is using an email address to pass themselves off as an affiliate of Complainant. Complainant presents evidence showing that the email address that Respondent has created is used to solicit information and money on false pretenses. The disputed domain name is being used to cause the recipients of these emails to mistakenly believe Respondent has a connection with Complainant and is one of the Complainant’s affiliates.”) Complainant provides evidence of an attempted phishing scheme by Respondent using and email associated with the disputed domain name. The Panel finds that this is not a bona fide offering of goods or services or a legitimate noncommercial or fair use, and thus Respondent has no rights under under Policy ¶¶ 4(c)(i) or (iii).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant asserts that Respondent registered and uses the <crisspandgreen.com> domain name in bad faith because Respondent had actual notice of Complainant’s rights in the CRISP & GREEN mark, evinced by Respondent’s attempt to pass off as Complainant in a phishing scheme. Past panels have concluded a respondent had actual notice of a complainant’s rights when the respondent tries to pass off as complainant via email. See Spectrum Brands, Inc. v. Guo Li Bo, FA 1760233 (Forum Jan. 5, 2018) (“[T]he fact Respondent registered a domain name that looked identical to the SPECTRUM BRANDS mark and used that as an email address to pass itself off as Complainant shows that Respondent knew of Complainant and its trademark rights at the time of registration.”) The Panel notes the string of emails showing that Respondent attempts to pass off as Complainant. The Panel finds that Respondent had actual notice of Complainant’s rights in the CRISP & GREEN mark when it registered the disputed domain name, demonstrating bad faith under Policy ¶ 4(a)(iii).
Complainant argues that Respondent’s use of the disputed domain name to engage in a phishing scheme in and of itself also evinces bad faith. The Panel agrees and finds further bad faith under Policy ¶ 4(a)(iii). See Zoetis Inc. and Zoetis Services LLC v. VistaPrint Technologies Ltd, FA1506001623601 (Forum July 14, 2015) (“Respondent’s attempt to use the <zoietis.com> domain name to phish for personal information in fraudulent emails also constitutes bad faith pursuant to Policy ¶ 4(a)(iii).”)
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <crisspandgreen.com> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: June 6, 2022
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