C40 Cities Climate Leadership Group, Inc. v. 111222
Claim Number: FA1508001634967
Complainant is C40 Cities Climate Leadership Group, Inc. (“Complainant”), represented by Meghan Hungate of Willkie Farr & Gallagher LLP, New York, United States. Respondent is 111222 (“Respondent”), Canada.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <c4o.org>, registered with Pdr Ltd. D/B/A Publicdomainregistry.Com.
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 Forum electronically on August 25, 2015; the Forum received payment on August 25, 2015.
On August 26, 2015, Pdr Ltd. D/B/A Publicdomainregistry.Com confirmed by e-mail to the Forum that the <c4o.org> domain name is registered with Pdr Ltd. D/B/A Publicdomainregistry.Com and that Respondent is the current registrant of the name. Pdr Ltd. D/B/A Publicdomainregistry.Com has verified that Respondent is bound by the Pdr Ltd. D/B/A Publicdomainregistry.Com 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 26, 2015, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 15, 2015 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@c4o.org. Also on August 26, 2015, 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 September 21, 2015, 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 <c4o.org> domain name is confusingly similar to Complainant’s C40 mark.
2. Respondent does not have any rights or legitimate interests in the <c4o.org> domain name.
3. Respondent registered and uses the <c4o.org> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant has registered the C40 mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 4,367,113, registered July 16, 2013). Complainant uses the C40 mark in its work connecting cities around the world on environmental causes. Complainant also uses the <C40.org> domain name.
Respondent registered the <c4o.org> domain name on June 7, 2015. The disputed domain name does not resolve to an active website.
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’s USPTO registration demonstrates its rights in the C40 mark for purposes of Policy ¶ 4(a)(i). See Metro. Life Ins. Co. v. Bonds, FA 873143 (Nat. Arb. Forum Feb. 16, 2007) (finding that a USPTO trademark registration adequately demonstrates a complainant’s rights in a mark under Policy ¶ 4(a)(i)).
Respondent’s <c4o.org> domain name is confusingly similar to Complainant’s mark as it merely substitutes the letter “o” for the numeral “0.” Past panels have found confusing similarity between a respondent’s disputed domain name and a complainant’s mark where the respondent substituted a number for a letter in a complainant’s mark. See 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”). Thus, the Panel finds that Respondent’s <c4o.org> domain name is confusingly similar to Complainant’s C40 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 argues that Respondent has no rights or legitimate interests in the <c4o.org> domain name, and that Respondent is not commonly known by the disputed domain name. Complainant states that Respondent is not licensed or authorized to use Complainant’s mark. The WHOIS information merely lists “111222” as registrant. Respondent has failed to submit any evidence for the Panel’s consideration. Thus, the Panel finds that Respondent is not commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii). See Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003) (stating “nothing in [the respondent’s] WHOIS information implies that [the respondent] is ‘commonly known by’ the disputed domain name” as one factor in determining that Policy ¶ 4(c)(ii) does not apply).
Complainant asserts that Respondent is not making a bona fide offering of goods or services through the disputed domain name, or a legitimate noncommercial or fair use. Respondent has failed to make an active use of the disputed domain name. Past panels have concluded that there is no bona fide offering of goods or services or a legitimate noncommercial or fair use where a respondent fails to use a disputed domain name in connection with an active website. See Bloomberg L.P. v. SC Media Servs. & Info. SRL, FA 296583 (Nat. Arb. Forum Sept. 2, 2004) (“Respondent is wholly appropriating Complainant’s mark and is not using the <bloomberg.ro> domain name in connection with an active website. The Panel finds that the [failure to make an active use] of a domain name that is identical to Complainant’s mark is not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) and it is not a legitimate noncommercial or fair use of the domain name pursuant to Policy ¶ 4(c)(iii).”). The Panel finds that Respondent is not using the disputed domain name in connection with 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).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant argues that Respondent has violated Policy ¶ 4(a)(iii) by failing to make an active use of the disputed domain name. Past panels have found bad faith where a respondent failed to make an active use of a domain name. See Am. Broad. Cos., Inc. v. Sech, FA 893427 (Nat. Arb. Forum Feb. 28, 2007) (concluding that the respondent’s failure to make active use of its domain name in the three months after its registration indicated that the respondent registered the disputed domain name in bad faith). The Panel finds that Respondent has engaged in bad faith per Policy ¶ 4(a)(iii).
Complainant contends that Respondent has engaged in the bad fiath tactic of typosquatting by taking advantage of Internet users who attempt to access Complainant’s website but mistakenly misspell Complainant’s mark by typing the letter “o” instead of the numeral “0.” The Panel agrees and finds additional bad faith under Policy ¶ 4(a)(iii). See Microsoft Corp. v. Domain Registration Philippines, FA 877979 (Nat. Arb. Forum Feb. 20, 2007) (finding bad faith registration and use of the <microssoft.com> domain name as it merely misspelled the complainant’s MICROSOFT mark).
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 <c4o.org> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: September 25, 2015
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