Key Craze, Inc. v. Yuval G.
Claim Number: FA1307001511867
Complainant is Key Craze, Inc. (“Complainant”), represented by Sukhwinder Dhaliwal, California, USA. Respondent is Yuval G. (“Respondent”), Texas, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <keycraze.info>, registered with enom, inc.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on July 27, 2013; the National Arbitration Forum received payment on July 27, 2013.
On August 5, 2013, enom, inc. confirmed by e-mail to the National Arbitration Forum that the <keycraze.info> domain name is registered with enom, inc. and that Respondent is the current registrant of the name. enom, inc. has verified that Respondent is bound by the enom, 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 August 13, 2013, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 3, 2013 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@keycraze.info. Also on August 13, 2013, 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 National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On September 9, 2103, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Sandra J. Franklin as Panelist.
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" 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 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
1. Respondent’s <keycraze.info> domain name is identical to Complainant’s KEYCRAZE INC. mark.
2. Respondent does not have any rights or legitimate interests in the <keycraze.info> domain name.
3. Respondent registered and uses the <keycraze.info> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant owns the KEYCRAZE INC. mark through its trademark registration with the United States Patent and Trademark Office ("USPTO") (Reg. No. 3,551,282, registered December 23, 2008). Complainant has been using the KEYCRAZE INC. mark to sell keys and accessories since 2007.
Respondent registered the <keycraze.info> domain name on March 12, 2013, and uses it to divert Complainant’s customers to Respondent’s competing locksmith business.
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(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.”).
The Panel finds that Complainant has rights in the KEYCRAZE INC. mark through its trademark registration with the USPTO. Previous panels have determined that a complainant’s USPTO registration is sufficient to establish its rights in the mark. Expedia, Inc. v. Tan, FA 991075 (Nat. Arb. Forum June 29, 2007) (“As the [Complainant’s] mark is registered with the USPTO, Complainant has met the requirements of Policy ¶ 4(a)(i).”).
Respondent’s <keycraze.info> domain name differs from Complainant’s KEYCRAZE INC. mark in that it eliminates the “ INC.” and a space, and adds the generic top-level domain (“gTLD”) “.info.” Previous panels have determined that spacing is insignificant since spaces are impermissible in domain names. See George Weston Bakeries Inc. v. McBroom, FA 933276 (Nat. Arb. Forum Apr. 25, 2007) (finding that eliminating the space between terms of a mark still rendered the <gwbakeries.mobi> domain name identical to the complainant’s GW BAKERIES mark). Previous panels have also found confusing similarity where a respondent eliminates a word from a complainant’s multiple-word mark. For example, in Tesco Pers. Fin. Ltd. v. Domain Mgmt. Servs., FA 877982 (Nat. Arb. Forum Feb. 13, 2007), the panel held that “the Domain Name is confusingly similar to Complainant’s ‘TESCO PERSONAL FINANCE’ mark in that it merely omits the descriptive term ‘personal.’”). It is well established that the affixation of a gTLD is irrelevant for purposes of the Policy ¶ 4(a)(i) analysis. In Microsoft Corp. v. Zournas, FA 1093928 (Nat. Arb. Forum Dec. 10, 2007), the panel wrote, “the Panel finds that Respondent’s <windows.info> domain name is identical to Complainant’s WINDOWS mark as the addition of a gTLD is a necessary addition in the creation of any domain name and therefore an indistinguishing characteristic under Policy ¶ 4(a)(i).” Similarly, the Panel finds that the <keycraze.info> domain name is confusingly similar to the KEYCRAZE INC. 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 Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name); see also AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006) (“Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.”).
Complainant claims that Respondent’s company name is “Open Locksmith Inc.” The WHOIS record indicates that “Yuval G.” is the registrant of the domain name. Complainant also contends that Complainant has no association with Respondent. Respondent did not submit a Response to refute these contentions. Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii). See 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).
Complainant asserts that Respondent uses the disputed domain name in connection with locksmith products and services that compete with those provided by Complainant. Previous panels have refused to find rights or legitimate interests for a respondent who uses a confusingly similar domain name to sell products that compete with the complainant. See Coryn Group, Inc. v. Media Insight, FA 198959 (Nat. Arb. Forum Dec. 5, 2003) (finding that the respondent was not using the domain names for a bona fide offering of goods or services nor a legitimate noncommercial or fair use because the respondent used the names to divert Internet users to a website that offered services that competed with those offered by the complainant under its marks). Accordingly, the Panel finds that Respondent’s use of the domain name does not constitute a bona fide offering of goods or services, or a legitimate noncommercial or fair use pursuant to Policy ¶¶ 4(c)(i) and 4(c)(iii).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant argues that Respondent’s bad faith is evidenced by Respondent’s offer to sell the disputed domain. The Panel notes email correspondence showing that Respondent offers to sell the website for $5,000.00. The Panel finds that this constitutes evidence of bad faith pursuant to Policy ¶ 4(b)(i). In Bank of Am. Corp. v. Nw. Free Cmty. Access, FA 180704 (Nat. Arb. Forum Sept. 30, 2003), the panel similarly found that “Respondent's general offer of the disputed domain name registration for sale establishes that the domain name was registered in bad faith under Policy ¶ 4(b)(i).”
Respondent uses the <keycraze.info> domain name to divert Complainant’s customers to Respondent’s competing locksmith business. Complainant argues that its customers have informed Complainant that they were directed to the resolving page of the disputed domain when searching for Complainant’s website. Previous panels have found evidence of bad faith where the respondent appropriates the complainant’s mark to divert potential customers to respondent’s competing business. See Surface Prot. Indus., Inc. v. Webposters, D2000-1613 (WIPO Feb. 5, 2001) (finding that, given the competitive relationship between the complainant and the respondent, the respondent likely registered the contested domain name with the intent to disrupt the complainant's business and create user confusion). The Panel finds that Respondent uses the <keycraze.info> domain name in bad faith pursuant to Policy ¶ 4(b)(iii).
Respondent uses the domain name to intentionally attract potential costumers to Respondent’s website for commercial gain. In Amazon.com, Inc. v. Shafir, FA 196119 (Nat. Arb. Forum Nov. 10, 2003), the panel wrote, “As Respondent is using the domain name at issue in direct competition with Complainant, and giving the impression of being affiliated with or sponsored by Complainant, this circumstance qualifies as bad faith registration and use of the domain name pursuant to Policy ¶ 4(b)(iv).” Respondent also relies on a confusingly similar domain name to compete with Complainant in the locksmith industry, evidence of Respondent’s bad faith pursuant to Policy ¶ 4(b)(iv).
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 <keycraze.info> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: September 18, 2013
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