CR License, LLC v. chennuo Du
Claim Number: FA2206001999769
Complainant is CR License, LLC (“Complainant”), represented by Jennifer A. Van Kirk of Lewis Roca Rothgerber Christie LLP, Arizona, USA. Respondent is chennuo Du (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <canyonranchtexas.com>, registered with Hong Kong Juming Network Technology Co., Ltd.
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 June 9, 2022; the Forum received payment on June 9, 2022.
On June 13, 2022, Hong Kong Juming Network Technology Co., Ltd confirmed by e-mail to the Forum that the <canyonranchtexas.com> domain name is registered with Hong Kong Juming Network Technology Co., Ltd and that Respondent is the current registrant of the name. Hong Kong Juming Network Technology Co., Ltd has verified that Respondent is bound by the Hong Kong Juming Network Technology Co., Ltd 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 June 15, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 5, 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@canyonranchtexas.com. Also on June 15, 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 July 10, 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 <canyonranchtexas.com> domain name is confusingly similar to Complainant’s CANYON RANCH mark.
2. Respondent does not have any rights or legitimate interests in the <canyonranchtexas.com> domain name.
3. Respondent registered and uses the <canyonranchtexas.com> domain name in bad faith.
B. Respondent did not file a Response.
Complainant, CR License, LLC, uses its CANYON RANCH mark in connection with health resort and spa services. Complainant holds a registration for the CANYON RANCH mark with multiple trademark agencies, including the United States Patent and Trademark Office (“USPTO”)(Reg. No. 1,350,012, registered July 16, 1985).
Respondent registered the <canyonranchtexas.com> domain name on October 11, 2021, and used it to direct users to adult oriented material, but now inactively holds the domain name.
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 CANYON RANCH mark through its registration with multiple trademark agencies, including the USPTO. See Bloomberg Finance L.P. v. Jimmy Yau, FA 1764034 (Forum Jan. 25, 2018) (“The Panel finds that complainant has rights in BLOOMBERG mark under Policy ¶ 4(a)(i) based upon its registration with multiple trademark agencies, including the USPTO.”)
Respondent’s <canyonranchtexas.com> domain name uses CANYON RANCH mark and adds the geographic term “texas” and the “.com” gTLD. Under Policy ¶ 4(a)(i), incorporating a mark in its entirety and adding a geographic descriptor, particularly where Complainant does business, and a gTLD fails to sufficiently distinguish a disputed domain name from a mark. See Dell Inc. v. SNAB Corporation, FA 1785051 (Forum May 30, 2018) (finding the inclusion of a geographic term did not distinguish the domain name and increased possible confusion, as “[t]he geographic term “hyderabad” is also suggestive of Complainant as Complainant has corporate offices in Hyderabad, India.”); see also Longo Brothers Fruit Markets Inc. v. John Obeye / DOMAIN MAY BE FOR SALE, CHECK AFTERNIC.COM, FA 1734634 (Forum July 17, 2017) (“[O]f course it is well established in prior UDRP cases that the addition of a ‘.com’ suffix is irrelevant when determining if a disputed domain name is identical or confusingly similar to a trademark.”) Therefore, the Panel finds that Respondent’s <canyonranchtexas.com> domain name is confusingly similar to Complainant’s CANYON RANCH 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 <canyonranchtexas.com> domain name because Respondent is not commonly known by the disputed domain name and Complainant has not authorized or licensed to Respondent any rights in the CANYON RANCH mark. The WHOIS information lists Respondent as “chennuo Du.” 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 M. Shanken Commc’ns v. WORLDTRAVELERSONLINE.COM , FA 740335 (Forum Aug. 3, 2006) (finding that the respondent was not commonly known by the <cigaraficionada.com> domain name under Policy ¶ 4(c)(ii) based on the WHOIS information and other evidence in the record); see also 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)”).
Complainant also argues that Respondent does not use the <canyonranchtexas.com> domain name for a bona fide offering of goods or services or for a legitimate non-commercial or fair use because Respondent used the domain name to display adult oriented material, and now makes no active use. Failure to make active use of a domain name generally is not a bona fide offer of goods or services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii). See Activision Blizzard, Inc. / Activision Publishing, Inc. / Blizzard Entertainment, Inc. v. Cimpress Schweiz GmbH, FA 1737429 (Forum Aug. 3, 2017) (“Complainant insists that Respondent has made no demonstrable preparations to use the disputed domain name. When Respondent is not using the disputed domain name in connection with an active website, the Panel may find that Respondent is not using the disputed domain name for a bona fide offering of goods or services… As Respondent has not provided a response to this action, Respondent has failed to meet its burden regarding proof of any rights or legitimate interest in the disputed domain.”). Using a domain name to display adult-oriented images is also not a bona fide offering of goods or services or a legitimate noncommercial or fair use. See Karen Koehler v. Hiroshi Ishiura/ Lifestyle Design Inc., FA1730673 (Forum June 1, 2017) (holding that “Respondent is not using the disputed domain name for any bona fide offering of goods or services or a legitimate non-commercial fair use because Respondent uses the domain name to host a pornographic website.”) Complainant provides screenshots of the website at <canyonranchtexas.com>, which does not resolve to an active webpage. Complainant also demonstrates that the website at <canyonranchtexas.com> previously displayed adult oriented material. The Panel finds that neither of these uses of the disputed domain name is a bona fide offering of goods or services or a legitimate noncommercial or fair use, and thus Respondent has no rights under Policy ¶¶ 4(c)(i) or (iii).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant contends that Respondent uses its CANYON RANCH mark in the <canyonranchtexas.com> domain name with intent to divert Internet users to its website for commercial gain, in bad faith. Complainant also argues that Respondent registration and use of the <canyonranchtexas.com> domain name constitutes opportunistic bad faith as the domain name is obviously connected to Complainant’s mark. Complainant demonstrates that Respondent registered the <canyonranchtexas.com> domain name only one month after Complainant’s announcing its plan to open up in the state of Texas. The Panel agrees and finds bad faith under Policy ¶ 4(a)(iii) and Policy ¶ 4(b)(iv). See AOL LLC v. iTech Ent, LLC, FA 726227 (Forum July 21, 2006) (finding that the respondent took advantage of the confusing similarity between the <theotheraol.com> and <theotheraol.net> domain names and the complainant’s AOL mark, which indicates bad faith registration and use pursuant to Policy ¶ 4(b)(iv).); see also Amazon Technologies, Inc. v. harshit dhingaun, FA1505001619696 (Forum June 10, 2015) (holding that the respondent had demonstrated opportunistic bad faith according to Policy ¶ 4(a)(iii), when it registered the <amazonfashionindia.com> and <amazonindiafashion.com> domain names within days after the announcement of the complainant’s sponsorship of India Fashion Week).
Complainant also contends that Respondent’s current failure to make active use of the <canyonranchtexas.com> domain name is further evidence of Respondent’s bad faith use and registration. The Panel agrees and finds bad faith under Policy ¶ 4(a)(iii). See VideoLink, Inc. v. Xantech Corporation, FA1503001608735 (Forum May 12, 2015) (“Failure to actively use a domain name is evidence of bad faith registration and use pursuant to Policy ¶ 4(a)(iii).”)
Complainant claims that Respondent’s past use of the <canyonranchtexas.com> domain name’s resolving page to display adult-oriented material also supports a finding of bad faith registration and use. The Panel agrees and finds further bad faith under Policy ¶ 4(a)(iii). See Twitter, Inc. v. Kiribati Media / Kiribati 200 Media Limited, FA1502001603444 (Forum Mar. 19, 2015) (“Respondent’s use of the disputed domain name to feature adult-oriented advertisements is further evidence of bad faith under 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 <canyonranchtexas.com> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: July 11, 2022
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