Halfbrick Studios Pty, LTD. / Kate Hynes v. REDACTED
Claim Number: FA1412001592887
Complainant is Halfbrick Studios Pty, LTD. / Kate Hynes (“Complainant”), represented by Nicholas D. Wells of Kirton McConkie, Utah, USA. Respondent is REDACTED (“Respondent”), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <halfbrick.us>, registered with GoDaddy.com, LLC.
The undersigned certifies he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.
Houston Putnam Lowry, Chartered Arbitrator, as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on December 2, 2014; the National Arbitration Forum received payment on December 2, 2014.
On December 3, 2014, GoDaddy.com, LLC confirmed by e-mail to the National Arbitration Forum that the <halfbrick.us> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, LLC registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with the U.S. Department of Commerce’s usTLD Dispute Resolution Policy (the “Policy”).
On December 4, 2014, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 24, 2014 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@halfbrick.us. Also on December 4, 2014, 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 December 30, 2014, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Houston Putnam Lowry, Chartered Arbitrator, 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 to the usTLD Dispute Resolution Policy (“Rules”). Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the Policy, the 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. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the usTLD Policy, usTLD 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
The HALFBRICK mark is currently registered as a stand-alone mark with the U.S. Patent and Trademark Office under Registration Number: 4,331,561, registered May 7, 2013, and first used in interstate commerce on April 10, 2010.
Complainant is authorized to use and has used the HALFBRICK mark in connection with the following goods and services under Reg. No. 4,331,561: computer games software; computer game software programs for use in playing on-line computer games, in Class 9 (U.S. CLS. 21, 23, 26, 36 and 38).
FACTUAL AND LEGAL GROUNDS
[a.] BACKGROUND FACTS
This Amended Complaint is based on the following factual and legal grounds:
Complainant Halfbrick Studios Pty. Ltd. (“Halfbrick”) is an Australian video game developer founded in 2001 and based in Brisbane, Australia. Halfbrick has been on the forefront of the Australian game development industry for many years, beginning with the development of licensed titles for platforms such as Gameboy Advance, Nintendo DS and PlayStation Portable. They have expanded their portfolio with a range of hugely successful, independently-released games on multiple platforms. With their recent success of such games, Halfbrick has grown to become one of the most well-known indie developers in the world, including a strong presence in the global market.
Halfbrick has registered the HALFBRICK mark with the U.S. Patent and Trademark Office under Registration Number 4,331,561. Halfbrick has also registered the HALFBRICK mark in Australia (Trademark 1485021 entered on Register on November 19, 2012) and the European Union (Community Trade Mark 11171709, entered on Register on May 15, 2013)
Further applications to register the HALFBRICK mark are pending in South Korea, Russia, Japan, Brazil, China, and India.
Complainant Halfbrick has been using the HALFBRICK trademark in the United States, Canada, the European Union, Australia, South Korea, Japan, Brazil, China, India, and many other countries or more than 10 years and have invested substantially in the trademark associated with the goods and services marketed under the HALFBRICK brand name. As a result, the HALFBRICK trademark, together with Complainant’s name and reputation, have become synonymous with quality computer game software and computer game software programs for on-line gaming. Complainant has built up considerable goodwill in the minds of consumers in connection with the HALFBRICK trademark.
Respondent REDACTED (“Respondent”) registered the “halfbrick.us” domain name (the “Domain Name”) on October 10, 2014. Complainants have not licensed or otherwise authorized Respondent to use the HALFBRICK trademark in the Domain Name at issue, or for any other purpose.
The Domain Name currently does not resolve to a website, but was created as a trap for Internet users who were seeking Complainant’s website (www.halfbrick.com), to which the Domain Name was forwarded. Per the support staff from Go Daddy.com, the Domain Name has currently been reassigned so the domain name is not utilizing their DNS services. This is a temporary solution which can be reversed by the registrant at any time. With the creation of this website, the registrant was able to create phony email addresses that mimicked and impersonated the employees and officers of Halfbrick. Through this correspondence they de-fraud consumers by representing themselves as Halfbrick, providing false references regarding investment opportunities, legalities of contracts, and the production of new game applications. Respondent used the Domain Name for its own gain by creating confusion among Internet users and investors, and, in the process, disrupting Complainant’s business.
Complainant contends that: (1) Respondent has registered the Domain Name, which is identical to and/or confusingly similar to the HALFBRICK mark in which Complainant has rights, (2) Respondent has no rights or legitimate interests in the Domain Name, and (3) Respondent has registered and is using the Domain Name in bad faith.
[b.] THE DOMAIN NAME IS IDENTICAL TO AND/OR CONFUSINGLY SIMILAR TO A MARK IN WHICH COMPLAINANTS HAVE RIGHTS.
Complainant has rights in the HALFBRICK mark, as confirmed by a federal trademark registration. Respondent’s Domain Name contains the word “halfbrick” in its entirety and is, therefore, confusingly similar to the HALFBRICK trademark. An examination of the Domain Name at issue shows that it likewise meets the “confusingly similar” test with respect to Complainant’s HALFBRICK mark and thus satisfies the first prong of the required analysis.
The Domain Name incorporates the HALFBRICK mark in its entirety. Although the Domain Name uses the “.us” top-level domain, the difference is inconsequential given the distinctiveness of the Complainant’s HALFBRICK mark. The addition of generic, non-distinctive terms does not make either the Domain Name as a whole distinguishable over the HALFBRICK mark alone, nor does the addition of the “.us” top-level domain. See Disney Enterprises, Inc. v. R B, FA 444432 (Nat. Arb. Forum May 3, 2005) (simply adding the “.info” gTLD to the mark fails to distinguish the domain name from the mark); Biovail Laboratories International SRL v. Richard Koch, FA 1225360 (Nat. Arb. Forum Nov. 4, 2008) (“Under Policy ¶4(a)(i), the addition of a gTLD is irrelevant when considering whether a domain name is identical to a mark.”). Previous panels have specifically found confusing similarity in domain names having elements nearly identical to those at issue here; names such as “epsoncartridges.com,” “epson-inkjet-cartridges-refills.com,” “epsoninkcartridgerefill.com,” and “epsonink.com.” Seiko Epson Corp. v. Eyecon Marketing, Inc., FA 609195 (Nat. Arb Forum January 23, 2006) (“epsoncartridges.com”); Seiko Epson Corp. v. AGA Strategies LLC, FA 910873 (Nat. Arb. Forum March 12, 2007) (“epson-inkjet-cartridges-refills.com”); Seiko Epson Corp. v. Digi Real Estate Foundation, FA 1007976 (Nat. Arb. Forum July 24, 2007) (“epsoninkcartridgerefill.com”); Seiko Epson Corp. v. Best Quality Computers, FA 1213557 (Nat. Arb. Forum Oct. 2, 2008) (“epsonink.com”). See also Seiko Epson Corp. v. Price-less Inkjet Cartridge Co., FA 96849 (Nat. Arb Forum May 2, 2001) (“epsonink.net,” “epsoninkjet.net,” “epsoninkjet.com,” “epsoninkjets.com”).
Respondent’s use of the HALFBRICK mark suggests to consumers that Respondent is an authorized licensee and and/or affiliated with Complainant, which it is not. As discussed above the Respondent was able to create phony email addresses that mimicked and impersonated the employees and officers of Halfbrick. This suggestion that Respondent is affiliated with Complainant confuses consumers into believing that the Respondent’s activities are somehow sponsored by or affiliated with Complainant’s business. See PACCAR, Inc. v. Telescan Tech., L.L.C., 319 F.3d 243, 254 (6th Cir. 2003) (finding a likelihood of confusion and intent to confuse consumers by suggesting sponsorship or affiliation where alleged infringer included plaintiff’s trademark in domain name and elsewhere on its site). That Internet users may or may not quickly ascertain that the Respondent’s activities are not affiliated with Complainant is irrelevant to the issue of source confusion. Radisson Hotels Int’l, Inc, v. Raddison Suites, FA 98235 (Nat. Arb. Forum Aug. 27, 2001) (“It is irrelevant that Internet users may discover upon arriving at Respondent’s web site that they have not reached Complainant’s web site.”); Tall Oaks Publishing, Inc. v National Trade Publications, Inc., FA 94346 (Nat. Arb. Forum May 5, 2000) (same).
In light of the foregoing, this Panel should find that usTLD Rule 3(c)(ix)(1), usTLD Policy ¶4(a)(i) have been satisfied because the Domain Name is identical and/or confusingly similar to Complainant’s HALFBRICK trademark and service mark.
[c.] RESPONDENT HAS NO RIGHTS OR LEGITIMATE INTERESTS IN THE DOMAIN NAME.
Respondent has no rights or legitimate interests in the Domain Name. First, Respondent is neither a licensee of Complainant nor is it otherwise authorized to use the HALFBRICK mark or any of Complainant’s other marks in a domain name. Accordingly, Respondent is not authorized by Complainant to register the Domain Name, nor is it authorized to run active websites at any domain incorporating Complainant’s HALFBRICK mark.
In addition, Respondent could not possibly contend that it is commonly known by or identified with the Domain Name. HALFBRICK is an invented word that has no meaning other than to serve as a source identifier for Complainant Halfbrick, as well as the products manufactured and/or sold by them. Respondent’s name (before redaction) is not even remotely similar to the Domain Name. See Pepsico, Inc. v Becky, FA 117014 (Nat. Arb. Forum Sept. 3, 2002) (holding that because the respondent did not own any trademarks or service marks reflecting the <pepsicola.us> domain name, it had no rights or legitimate interests pursuant to Policy ¶4(c)(i); See Seiko Epson Corp. v. Price-less Inkjet Cartridge Co., FA 096849 (Nat. Arb. Forum May 2, 2001), citing, inter alia, Compagnie de Saint Gobain v. Com-Union Corp., D200-0020 (WIPO Mar. 14, 2000) (finding no rights or legitimate interest where Respondent was not commonly known by the mark and never applied for a license or for permission from Complainant to use the trademarked name); Gallup, Inc. v. Amish Country Store, FA 096209 (Nat. Arb. Forum Jan. 23, 2001) (same).
Further where the domain was registered and set up to forward to Complainant’s official website www.halfbrick.com to impersonate officers of the company, such a diversion is neither a bona fide offering of goods or services nor a legitimate noncommercial or fair use. See Dell, Inc. v. Vijayan Anbalagan, FA 1531184 (Nat. Arb. Forum Decemebr 30, 2013) See Kmart of Mich., Inc. v. Cone, FA 655014 (Nat. Arb. Forum April 25, 2006) (The panel found the respondent’s attempt to pass itself of as the complainant was not 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) when the respondent used the disputed domain name to present users with a website that was nearly identical to the complainant’s website); see also Homer TLC, Inc. v. Seed of Abraham Christian School, FA 1358569 (Nat. Arb. Forum Jan. 3, 2011) (determining that the respondent lacks rights and legitimate interests in the <thehomedepotgardenclub.com> domain name because the respondent attempted to acquire the personal information of Internet users accessing the resolving website).
Thus Respondent cannot maintain that its use of the HALFBRICK mark is legitimate or bona fide. This Panel should, therefore, find that usTLD Rule 3(c)(ix)(2), usTLD Policy ¶4(a)(ii) has been satisfied because the Respondent has no rights or legitimate interests in respect of the Domain Name at issue.
[d.] RESPONDENT HAS REGISTERED AND IS USING THE DOMAIN NAME IN BAD FAITH.
Respondent is engaged in bad faith use of the Domain Name to attract or deceive Complainant’s consumers through the use of the HALFBRICK trademark within the Domain Name. At the time Respondent registered and began using the Domain Name, Respondent was well aware of Complainant’s HALFBRICK trademark. First, HALFBRICK trademark is registered, and there is no trademark registered or used by third parties that is similar to the HALFBRICK mark. Indeed, Complainant has been using the HALFBRICK mark in the United States and around the world for more than 10 years. The HALFBRICK trademark, together with Complainant’s name and reputation, has become synonymous with quality computer game software and computer game software programs for on-line gaming. Complainant has built up considerable goodwill in the minds of consumers in connection with the HALFBRICK trademark.
Based on the circumstances, it can only be inferred that Respondent registered the Domain Name for the purpose of deceiving customers through impersonating employees of Halfbrick by use of the Domain Name, based upon the unlicensed use of Complainant’s HALFBRICK mark in the Domain Name. See Jellibeans, Inc. v. Skating Clubs of Georgia, Inc., 212 U.S.P.Q. 170, 176 (N.D. Ga. 1981), aff’d, 716 F.2d 833, 222 U.S.P.Q. 10 (11th Cir. 1983) (holding that intent to capitalize on plaintiff’s brand may be proved by circumstantial evidence); E. & J. Gallo Winery v. Gallo Cattle Co., 12 U.S.P.Q.2d 1657, 1674 (E.D. Cal. 1989), modified & aff’d, 955 F.2d 1327, 21 U.S.P.Q.2d 1824 (9th Cir. 1992), amended, 967 F.2d 1280 (9th Cir. 1992). Attracting and deceiving customers through the unlicensed use of Complainant’s HALFBRICK mark is evidence that Respondent has registered and is using the Domain Name in bad faith. See Seiko Epson Corp. et. al v. Registrant, FA0602000644511(Nat. Arb. Forum April 18, 2006) (finding that the respondent registered and used the domain name in bad faith pursuant to Policy ¶4(b)(iv) because the respondent was using the confusingly similar domain name to attract Internet users to its commercial website); Policy ¶4(b)(i)-(ii),(iv).
Moreover, use of a domain name that, as here, is likely to create confusion as to Complainant’s sponsorship and affiliation with the disputed Domain Name is further evidence of bad faith registration and use. See Disney Enters., Inc. v. Noel, FA 198805 (Nat. Arb. Forum Nov. 11, 2003) (“Respondent registered a domain name confusingly similar to Complainant’s mark to divert Internet users to a competitor’s website. It is a reasonable inference that Respondent’s purpose of registration and use was to either disrupt or create confusion for Complainant’s business in bad faith pursuant to Policy ¶¶4(b)(iii) [and] (iv).”); See Reuters Ltd. v. Teletrust IPR Ltd., D2000-0471 (WIPO Sept. 8, 2000) (finding that the respondent demonstrated bad faith where the Respondent was aware of the complainant’s famous mark when registering the domain name as well as aware of the deception and confusion that would inevitably follow if he used the domain name). Since Respondent has no apparent connection to the HALFBRICK mark, there can be no dispute, given the fame of that mark, that Respondent is intentionally using it in bad faith to generate traffic to its Website.
Respondent’s Website features nothing more than a domain set up to de-fraud consumers by posing as representatives of Complainant’s organization. The Domain Name was intentionally forwarded to the Complainant’s domain www.halfbrick.com, causing initial, obvious customer confusion. With the creation of this domain, Registrant then created and corresponded with Internet users, consumers and investors through phony email addresses regarding services offered commercially by Respondent, in the apparent belief that fraudulent use of the names of Complainant’s employees would induce potential customers to purchase services from Respondent. Respondent uses the HALFBRICK mark to attract customers looking for Respondent’s services of developing application software, while doing so through deceiving customers and devaluing the integrity of Complainant. Given the fame of the HALFBRICK mark there can be no question of Respondent’s bad faith registration and use of the Domain Name. See Am. Int’l Group, Inc. v. Busby, FA 156251 (Nat. Arb. Forum May 30, 2003) (finding that the disputed domain name was registered and used in bad faith where the respondent hosted a website that “duplicated Complainant’s mark and logo, giving every appearance of being associated or affiliated with Complainant’s business . . . to perpetrate a fraud upon individual shareholders who respected the goodwill surrounding the AIG mark”).
Accordingly, this Panel should find that usTLD Rule 3(c)(ix)(3), usTLD Policy ¶4(a)(iii) is satisfied because Respondent has registered and is using the Domain Name in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding, except two pieces of email correspondence denying Respondent or his brother’s company registered the disputed domain name.
(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 or is being used in bad faith.
Respondent claims he did not register this domain name. Complainant added the company listed in the WHOIS, which is Respondent’s brother’s company operating in Pakistan. Respondent claims neither his brother nor his brother’s company registered or uses the disputed domain name. It appears to the Panel Respondent is a victim of identity theft.
Although it was not requested by the Respondent, the Panel will redact Respondent’s personal information from this decision to prevent the further victimization of Respondent. In Wells Fargo & Co. v. John Doe as Holder of Domain Name <wellzfargo.com>, FA 362108 (Nat. Arb. Forum Dec. 30, 2004) and Wells Fargo & Co. v. John Doe as Holder of Domain Name <wellsfargossl>, FA 453727 (Nat. Arb. Forum May 19, 2005), the panels omitted the respondents’ personal information from the decisions in an attempt to protect the respondents who claimed to be victims of identity theft from becoming associated with acts the actual registrants sought to impute to them. See also Nat’l Westminster Bank plc v. [Redacted], FA 1028337 (Nat. Arb. Forum July 25, 2007). According to Policy ¶4(j), “[a]ll decisions under this Policy will be published in full over the Internet, except when an Administrative Panel determines in an exceptional case to redact portions of its decision.” The circumstances of the present case, including the claim of identity theft by Respondent, warrant the redaction of Respondent’s personal information from the Panel’s decision.
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 Complainant prove the following three elements to obtain an order cancelling or transferring a domain name:
(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 or is being used in bad faith.
Given the similarity between the Uniform Domain Name Dispute Resolution Policy (“UDRP”) and the usTLD Policy, the Panel will draw upon UDRP precedent as applicable in rendering its decision.
In view of Respondent's failure to submit a formal response other than the two emails, 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 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.”).
Complainant develops video games through its business and uses the HALFBRICK mark to identify its goods. The HALFBRICK mark is registered in Australia (e.g., Reg. No. 1,485,021 registered Nov. 19, 2012) and in the United States (e.g., Reg. No. 4,331,561, registered May 7, 2013, filed August 30, 2012). These trademark registrations satisfy the proof of rights required by Policy ¶4(a)(i). See Vivendi Universal Games v. XBNetVentures Inc., FA 198803 (Nat. Arb. Forum Nov. 11, 2003) (“Complainant's federal trademark registrations [with the USPTO] establish Complainant's rights in the BLIZZARD mark.”).
The <halfbrick.us> domain name is identical to the HALFBRICK mark. Because a gTLD or a ccTLD is required by domain name syntax, it must be ignored when determining whether the domain name is confusingly similar to Complainant’s mark under Policy ¶4(a)(i). See Lockheed Martin Corp. v. Roberson, FA 323762 (Nat. Arb. Forum Oct. 19, 2004) (holding that the ccTLD “.us” does not differentiate the disputed domain name from Complainant’s mark). The disputed domain name is confusingly similar to Complainant’s mark.
The Panel finds Policy ¶4(a)(i) satisfied.
Complainant must first make a prima facie case Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶4(a)(ii). Then the burden shifts to Respondent to show it has 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 Respondent has no license or other rights to use the HALFBRICK mark. Respondent even denies using the domain name and the mark. Apparently unknown third parties are using Complainant’s mark while impersonating Respondent. This raises the level of inquiry by another level. Certainly Respondent cannot acquire any rights to the disputed domain name when Respondent was not even aware Respondent was allegedly using the mark.
Respondent is not commonly known or identified by the <halfbrick.us> domain name. The name of the registrant of record in the WHOIS record bears no relationship to the disputed domain name. There is no evidence to find Respondent as “commonly known as” this disputed domain name under Policy ¶4(c)(iii). See LawyerLocate.ca Inc v. J Kirby Inwood / CanLaw, FA 1496334 (Nat. Arb. Forum June 20, 2013) (“Respondent’s name is J Kirby Inwood and his organization’s name is CanLaw. There is no evidence Respondent is known by the Domain Names nor by the names Lawyerlocate or Lawyerlocate.ca.”).
The Panel finds Policy ¶4(a)(ii) satisfied.
This is an interesting scam worthy of note. Some unknown third party registers the disputed domain name impersonating Respondent. This means the third party has provided false WHOIS information in violation of the UDRP. The third party forwards the domain name to Complainant’s legitimate web site. This makes the disputed domain name look as if it is Complainant’s legitimate web site.
Then the third party uses the disputed domain name to create email addresses very similar to some of Complainant’s senior personnel’s valid email addresses. The only difference is the TLD, a difference a human may fail to notice but a computer will always notice (ie: President@Halftrack.us instead of President@Halftrack.com). Then the third party impersonates Complainant’s real employees for fraudulent purposes. This type of fraudulent activity obviously constitutes bad faith registration and use of the disputed domain name under the general penumbra of Policy ¶4(b). See Perot Sys. Corp. v. Perot.net, FA 95312 (Nat. Arb. Forum Aug. 29, 2000) (finding bad faith where the domain name in question is obviously connected with the complainant’s well-known marks, thus creating a likelihood of confusion strictly for commercial gain). Policy ¶4(b)(iv) does not strictly apply because the third party is not attracting the public to Respondent’s web site or other on-line location.
The third party who registered the domain name while impersonating Respondent had actual knowledge of Complainant’s rights. The disputed domain name was registered and used in bad faith under Policy ¶4(a)(iii) because of its essential role in the fraud. See The Way Int'l, Inc. v. Diamond Peters, D2003-0264 (WIPO May 29, 2003) ("As to constructive knowledge, the Panel takes the view that there is no place for such a concept under the Policy."); see also Yahoo! Inc. v. Butler, FA 744444 (Nat. Arb. Forum Aug. 17, 2006) (finding bad faith where the respondent was well-aware of the complainant's YAHOO! mark at the time of registration).
The Panel finds Policy ¶4(a)(iii) satisfied.
Having established all three elements required under the usTLD Policy, the Panel concludes relief shall be GRANTED.
Accordingly, it is Ordered the <halfbrick.us> domain name be TRANSFERRED from Respondent to Complainant.
Houston Putnam Lowry, Chartered Arbitrator, Panelist
Dated: Wednesday, January 7, 2015
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