Xcentric Ventures, L.L.C. v. Mark Johnson
Claim Number: FA0806001203824
Complainant is Xcentric Ventures, L.L.C. (“Complainant”), represented by Adam
S. Kunz,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <rip0ffrep0rt.com>, registered with Names4Ever.
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.
Louis E. Condon as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On
On June
24, 2008, a Notification of Complaint and Commencement of Administrative
Proceeding (the "Commencement Notification"), setting a deadline of
July 14, 2008
by which Respondent could file a
response to the Complaint, was transmitted to Respondent via e-mail, post and
fax, to all entities and persons listed on Respondent's registration as
technical, administrative and billing contacts, and to postmaster@rip0ffrep0rt.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration 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." Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the National Arbitration 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 makes the following assertions:
1. Respondent’s <rip0ffrep0rt.com> domain name is confusingly similar to Complainant’s RIP-OFF REPORT mark.
2. Respondent does not have any rights or legitimate interests in the <rip0ffrep0rt.com> domain name.
3. Respondent registered and used the <rip0ffrep0rt.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Xcentric Ventures, LLC, operates a website from
its <ripoffreport.com> domain name which provides a consumer reporting
forum for Internet users. At
Complainant’s website, consumers can anonymously file a “Ripoff Report”
documenting a consumer’s dissatisfaction with a business and their respective
business practices. Once an Internet user
files a “Ripoff Report,” Complainant creates a database of reports which other
Internet users are able to search. Complainant
has an internal policy against disclosing the personal information of reporters
to third parties. Complainant’s
predecessor-in-interest registered the RIP-OFF REPORT mark with the United
States Patent and Trademark Office (“USPTO”) on
Respondent’s <rip0ffrep0rt.com>
domain name was registered on
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."
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(e), 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 and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); See also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
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.
Complainant’s predecessor-in-interest registered the RIP-OFF
REPORT mark with the USPTO and Complainant has provided evidence of its
assignment. The Panel finds this
evidence sufficiently establishes Complainant’s rights in its RIP-OFF REPORT
mark pursuant to Policy ¶ 4(a)(i). See
Men’s Wearhouse, Inc. v. Wick, FA 117861 (Nat. Arb. Forum Sept. 16,
2002) (“Under
Respondent’s <rip0ffrep0rt.com> domain name incorporates Complainant’s RIP-OFF REPORT mark with the deletion of the hyphen, two substitutions of the number “0” for the letter “o,” and the addition of the generic top-level domain “.com.” The Panel finds these alterations do not sufficiently distinguish Respondent’s disputed domain name from Complainant’s RIP-OFF REPORT mark. Therefore, the Panel finds the disputed domain name is confusingly similar to Complainant’s mark pursuant to Policy ¶ 4(a)(i). See Innomed Techs., Inc. v. DRP Servs., FA 221171 (Nat. Arb. Forum Feb. 18, 2004) (finding that hyphens and top-level domains are irrelevant for purposes of the Policy); see also Oxygen Media, LLC v. Primary Source, D2000-0362 (WIPO June 19, 2000) (finding that the domain name <0xygen.com>, with zero in place of letter “O,” “appears calculated to trade on Complainant’s name by exploiting likely mistake by users when entering the url address”).
The Panel finds Policy ¶ 4(a)(i) has been satisfied.
Complainant has alleged Respondent does not possess rights
or legitimate interests in the disputed domain name. Complainant must present a prima facie case to support these
allegations before the burden shifts to Respondent to prove it does have rights
or legitimate interests in the disputed domain name. The Panel finds Complainant has presented an
adequate prima facie case to support
its allegations and Respondent has failed to respond to these proceedings. Therefore, the Panel may conclude Respondent
does not possess rights or legitimate interests in the disputed domain
name. The Panel, however, will examine
the record and determine if Respondent has rights or legitimate interests
pursuant to Policy ¶ 4(c). See Do The Hustle, LLC v. Tropic Web,
D2000-0624 (WIPO Aug. 21, 2000) (holding that once the complainant asserts that
the respondent has no rights or legitimate interests with respect to the
domain, the burden shifts to the respondent to provide “concrete evidence that
it has rights to or legitimate interests in the domain name at issue”); see also Broadcom Corp. v. Ibecom PLC,
FA 361190 (Nat. Arb. Forum
Complainant asserts Respondent is not commonly known by the <rip0ffrep0rt.com> domain name. The WHOIS information lists Respondent as
“Mark Johnson.” Complainant states it
has not authorized Respondent to use its RIP-OFF REPORT mark in any manner. Therefore, the Panel finds Respondent is not
commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii). See Gallup, Inc. v. Amish Country Store, FA 96209 (Nat. Arb.
Forum Jan. 23, 2001) (finding that the respondent does not have rights in a
domain name when the respondent is not known by the mark); see also Ian Schrager Hotels, L.L.C.
v. Taylor, FA 173369 (Nat. Arb. Forum
Sept. 25, 2003) (finding that without demonstrable evidence to support the
assertion that a respondent is commonly known by a domain name, the assertion
must be rejected).
Respondent is using the disputed domain name to “pass itself off” as Complainant by posing as Complainant and contacting Internet users through e-mail to misinform them that their private information will be shared with Complainant’s alleged corporate partners. The Panel finds Respondent’s use of the disputed domain name is an attempt to pass itself off as Complainant in order to provide Complainant’s customers with misleading information does not confer rights or legitimate interests in the disputed domain name pursuant to Policy ¶¶ 4(c)(i) and (iii). See Am. Int’l Group, Inc. v. Busby, FA 156251 (Nat. Arb. Forum May 30, 2003) (finding that the respondent attempts to pass itself off as the complainant online, which is blatant unauthorized use of the complainant’s mark and is evidence that the respondent has no rights or legitimate interests in the disputed domain name).
Respondent’s disputed domain name does not resolve to an active website. The Panel finds Respondent’s failure to make an active use of the disputed domain name is evidence Respondent lacks rights and legitimate interests in the disputed domain name pursuant to Policy ¶ 4(a)(ii). See Pharmacia & Upjohn AB v. Romero, D2000-1273 (WIPO Nov. 13, 2000) (finding no rights or legitimate interests where the respondent failed to submit a response to the complaint and had made no use of the domain name in question); see also Bloomberg L.P. v. Sandhu, FA 96261 (Nat. Arb. Forum Feb. 12, 2001) (finding that no rights or legitimate interests can be found when the respondent fails to use disputed domain names in any way).
The Panel finds Policy ¶ 4(a)(ii) has been satisfied.
Respondent’s disputed domain name does not resolve to an
active website. The Panel finds Respondent’s
failure to make an active use of the disputed domain name is evidence of bad
faith registration and use pursuant to Policy ¶ 4(a)(iii). See
DCI S.A. v. Link Commercial Corp.,
D2000-1232 (WIPO
Respondent is attempting to pass itself off as Complainant in
order to provide misleading information to Complainant’s clients through an
e-mail address connected with the disputed domain name. The Panel find Respondent’s actions are
evidence of bad faith registration and use pursuant to Policy ¶ 4(a)(iii). See Monsanto Co. v.
Decepticons, FA 101536 (Nat. Arb. Forum Dec. 18, 2001) (finding that
the respondent's use of <monsantos.com> to misrepresent itself as the
complainant and to provide misleading information to the public
supported a finding of bad faith).
The Panel finds Policy ¶ 4(a)(iii) has been satisfied.
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief should be GRANTED.
Accordingly, it is Ordered that the <rip0ffrep0rt.com> domain name be TRANSFERRED from Respondent to Complainant.
Louis E. Condon, Panelist
Dated August 4, 2008
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