Huron Consulting Group Inc. v. C. Mark Hussey
Claim Number: FA1603001663924
Complainant is Huron Consulting Group Inc. (“Complainant”), represented by Brian J. McGinnis of Barnes & Thornburg LLP, Indiana, United States. Respondent is C. Mark Hussey (“Respondent”), New York, United States.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <huronconsultgroup.com>, registered with GoDaddy.com, LLC.
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.
Paul M. DeCicco, as Panelist.
Complainant submitted a Complaint to the Forum electronically on March 3, 2016; the Forum received payment on March 3, 2016.
On March 4, 2016, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <huronconsultgroup.com> 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 ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On March 4, 2016, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 24, 2016 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@huronconsultgroup.com. Also on March 4, 2016, 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 March 28, 2016, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Paul M. DeCicco 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
Complainant contends as follows:
Complainant uses the HURON CONSULTING GROUP mark in connection with its consulting services.
Complainant registered the HURON CONSULTING GROUP mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 3,568,857, registered February 3, 2009), which demonstrates rights in the mark. Complainant’s has numerous other registrations for the HURON CONSULTING GROUP mark worldwide.
Respondent falsely registered the at-issue domain name using the name of an officer in Complainant’s business.
Respondent’s <huronconsultgroup.com> domain name is confusingly similar to the HURON CONSULTING GROUP mark as it is merely a variation by deletion of the “ING” and addition of the generic top-level domain “.com”.
Respondent has no rights or legitimate interests in the <huronconsultgroup.com> domain name. Respondent is not commonly known by the disputed domain name. Further, Respondent is making neither a bona fide offering of goods or services, nor a legitimate noncommercial fair use through the <huronconsultgroup.com> domain name as the domain name is inactive.
Respondent is using the <huronconsultgroup.com> domain name in bad faith. The Respondent’s misrepresented required information in registering the domain name and the domain name does not resolve to an active website.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has rights in the HURON CONSULTING GROUP mark through its registration of such mark with the USPTO and otherwise.
Respondent is not affiliated with Complainant and had not been authorized to use Complainant’s trademark in any capacity.
Respondent did not use its real identity in registering the at-issue domain name.
The at-issue domain name was registered after Complainant acquired rights in its HURON CONSULTING GROUP trademark.
Respondent’s domain name is inactive.
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 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 at-issue domain name is confusingly similar to a trademark in which Complainant has rights.
Complainant’s registration of the HURON CONSULTING GROUP mark with the USPTO is sufficient to establish its rights in a mark under Policy ¶ 4(a)(i). See Am. Int’l Group, Inc. v. Morris, FA 569033 (Nat. Arb. Forum Dec. 6, 2005) (“Complainant has established rights in the AIG mark through registration of the mark with several trademark authorities throughout the world, including the United States Patent and Trademark Office (‘USPTO’)”).
Respondent’s <huronconsultgroup.com> domain name contains Complainant’s HURON CONSULTING GROUP mark less its space and less “ING”, with the top-level domain name “.com” added to the resulting string to complete the domain name. The slight differences between Respondent’s at-issue domain name and Complainant’s trademark fail to distinguish one from the other for the purposes of the Policy. Therefore, the Panel finds that the at-issue domain name is confusingly similar to Complainant’s HURON CONSULTING GROUP mark pursuant to Policy ¶ 4(a)(i). See Classic Metal Roofs, LLC v. Interlock Indus., Ltd., FA 724554 (Nat. Arb. Forum Aug. 1, 2006) (concluding that the <classicmetalroofing.com> domain name was confusingly similar to the complainant’s CLASSIC METAL ROOFS mark because changing the final term of the mark from “roofs” to “roofing” was a minor alteration and did not sufficiently distinguish the domain name from the mark); see also Trip Network Inc. v. Alviera, FA 914943 (Nat. Arb. Forum Mar. 27, 2007) (concluding that the affixation of a gTLD to a domain name is irrelevant to a Policy ¶ 4(a)(i) analysis).
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. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006). Where there is no evidence supporting a finding pursuant to Policy 4(c) that Respondent has rights or interests in the at-issue domain name, Complainant’s prima facie showing acts conclusively.
Respondent lacks both rights and legitimate interests in respect of the at-issue domain name. Respondent is not authorized to use Complainant’s trademark in any capacity and, as discussed below, there are no Policy ¶4(c) circumstances from which the Panel might conclude that Respondent has rights or interests in respect of the <huronconsultgroup.com> domain name.
WHOIS information for the <huronconsultgroup.com> domain name lists “C. Mark Hussey” as the domain name’s registrant. While C. Mark Hussey is the name of an officer in Complainant’s business, said C. Mark Hussey did not register the domain name and there is nothing in the record that suggests the real Respondent is commonly known by the <huronconsultgroup.com> domain name. Therefore, the Panel finds that Respondent is not commonly known by the at-issue domain name pursuant to Policy ¶ 4(c)(ii). See Compagnie de Saint Gobain v. Com-Union Corp., D2000-0020 (WIPO Mar. 14, 2000) (finding no rights or legitimate interest where the respondent was not commonly known by the mark and never applied for a license or permission from the complainant to use the trademarked name).
Further, Respondent’s confusingly similar <huronconsultgroup.com> domain name is inactive. An at-issue domain name’s inactivity suggests neither a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See Thermo Electron Corp. v. Xu, FA 713851 (Forum July 12, 2006) (finding that the respondent’s non-use of the disputed domain names demonstrates that the respondent is not using the disputed domain names for a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii)).
Given the forgoing, Complainant satisfies its initial burden under Policy ¶ 4(a)(ii) and conclusively demonstrates Respondent’s lack of rights and lack of interests in respect of the at-issue domain name.
The domain name was registered and used in bad faith. As discussed below, bad faith circumstances are present which compel the Panel to conclude that Respondent acted in bad faith under paragraph 4(a)(iii) of the Policy.
As mentioned above regarding Policy ¶ 4(a)(ii), the confusingly similar <huronconsultgroup.com> domain name addresses is inactive. Importantly, such inactivity indicates Respondent’s bad faith. See DCI S.A. v. Link Commercial Corp., D2000-1232 (WIPO Dec. 7, 2000) (concluding that the respondent’s [failure to make an active use] of the domain name satisfies the requirement of ¶ 4(a)(iii) of the Policy).
Additionally, Respondent submitted false information to the domain name registrar in registering the at-issue domain name. Providing incorrect information for a WHOIS record constitutes further evidence of Respondent’s bad faith. See Enterprise Holdings v. Enterprise Online Serv., Ltd., FA1205001444232 (Nat.Arb. Forum June 14, 2012) (“Respondent provided false WHOIS information. That alone is sufficient grounds to find bad faith registration and use of the domain name.”).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <huronconsultgroup.com> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: March 29, 2016
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