Noorani Trading Inc. v. Chris Wyatt / Applied Analytic Systems
Claim Number: FA1705001732577
Complainant is Noorani Trading Inc. (“Complainant”), represented by Courtney Adams Thornton of Smith, Gambrell & Russell, LLP, Georgia, USA. Respondent is Chris Wyatt / Applied Analytic Systems (“Respondent”), Pennsylvania, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <blunteffects.com>, registered with NameSilo, 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.
Darryl C. Wilson, as Panelist.
Complainant submitted a Complaint to the Forum electronically on May 19, 2017; the Forum received payment on May 19, 2017.
On May 22, 2017, NameSilo, LLC confirmed by e-mail to the Forum that the <blunteffects.com> domain name is registered with NameSilo, LLC and that Respondent is the current registrant of the name. NameSilo, LLC has verified that Respondent is bound by the NameSilo, 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 May 25, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 14, 2017 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@blunteffects.com. Also on May 25, 2017, 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 June 20, 2017, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Darryl C. Wilson, 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, Noorani Trading Inc., is a scent product producer and distributor with headquarters based in Conyers, Georgia, USA. In connection with this business, Complainant uses the BLUNTEFFECTS mark to promote its goods and services. Complainant has rights in the BLUNTEFFECTS mark based upon its registration with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 3,384,399, registered Feb. 19, 2008). Respondent’s domain name, <blunteffects.com>, is identical to Complainant’s BLUNTEFFECTS mark as the domain entirely consists of the mark, plus the generic top-level-domain (“gTLD”) “.com.”
Respondent lacks rights and legitimate interests in <blunteffects.com>. Respondent is not commonly known by the disputed domain name and Complainant has not authorized Respondent to register a domain name reflecting the BLUNTEFFECTS mark. Respondent failed to use <blunteffects.com> in connection with a bona fide offering of goods or services or for a legitimate noncommercial or fair use. Instead, the disputed domain name resolves to a page offering Complainant’s products for sale and hyperlinks to Complainant’s competitors.
Respondent registered and uses <blunteffects.com> in bad faith. Respondent appropriates Complainant’s mark to attract Internet users confused as to the ownership of the disputed domain name for Respondent’s commercial gain. Respondent had actual notice of Complainant’s rights in the BLUNTEFFECTS mark prior to Respondent’s registration of the disputed domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant is Noorani Trading Inc., of Conyers, GA, USA. Complainant is the owner of the domestic registration for the mark BLUNTEFFECTS, which it has continuously used since at least as early as 2007, in connection with its provision of goods and services in the incense and air freshener industry.
Respondent is Chris Wyatt / Applied Analytic Systems, of Montour, PA, USA. Respondent’s registrar’s address is listed as Phoenix, AZ, USA. The Panel notes that <blunteffects.com> was registered on or about March 13, 2017.
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 (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 asserts rights in the BLUNTEFFECTS mark based upon its registration with the USPTO (Reg. No. 3,384,399, registered Feb. 19, 2008). Registration with a trademark authority such as the USPTO is sufficient to establish rights in a mark per Policy ¶ 4(a)(i). See Humor Rainbow, Inc. v. James Lee, FA 1626154 (Forum Aug. 11, 2015) (stating, “There exists an overwhelming consensus amongst UDRP panels that USPTO registrations are sufficient in demonstrating a complainant’s rights under Policy ¶ 4(a)(i) and its vested interests in a mark. . . . Due to Complainant’s attached USPTO registration on the principal register at Exhibit 1, the Panel agrees that it has sufficiently demonstrated its rights per Policy ¶ 4(a)(i).”). The Panel here finds that Complainant has rights in the BLUNTEFFECTS mark.
Next, Complainant argues Respondent’s domain name, <blunteffects.com>, is identical to Complainant’s BLUNTEFFECTS mark as the domain entirely consists of the mark, plus the gTLD “.com.” Wholly appropriating a mark and adding a gTLD is insufficient to differentiate between the disputed domain name and the mark it is derived from per Policy ¶ 4(a)(i). See Red Hat, Inc. v. Haecke, FA 726010 (Forum July 24, 2006) (concluding that the <redhat.org> domain name is identical to the complainant’s RED HAT mark because the mere addition of gTLD was insufficient to differentiate the disputed domain name from the mark). Here, Respondent’s only change to Complainant’s mark is the addition of a gTLD. The Panel here finds that Respondent’s domain name is identical to Complainant’s mark.
Respondent raises no contentions with regards to Policy ¶ 4(a)(i).
Complainant has proven this element.
The Panel recognizes that Complainant must first make a prima facie case that 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 does have rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (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). Complainant has met this burden.
Complainant asserts Respondent is not commonly known by <blunteffects.com> and that Complainant has not authorized Respondent to register a domain name reflecting Complainant’s mark. Where no response is submitted, WHOIS information can substantiate a finding that a Respondent is not commonly known by a disputed domain name. See St. Lawrence Univ. v. Nextnet Tech, FA 881234 (Forum Feb. 21, 2007) (concluding a respondent has no rights or legitimate interests in a disputed domain name where there was no evidence in the record indicating that the respondent was commonly known by the disputed domain name); see also Chevron Intellectual Property LLC v. Fred Wallace, FA1506001626022 (Forum July 27, 2015) (finding that the respondent was not commonly known by the <chevron-europe.com> domain name under Policy ¶ 4(c)(ii), as the WHOIS information named “Fred Wallace” as registrant of the disputed domain name). Here, the WHOIS information names “Chris Wyatt” as registrant of the disputed domain name, and Respondent has provided nothing to contradict Complainant’s assertions. The Panel here finds that Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii).
Complainant asserts Respondent failed to use <blunteffects.com> in connection with a bona fide offering of goods or services or for a legitimate noncommercial or fair use. Use of a disputed domain name to offer a complainant’s goods or services in an unauthorized fashion evinces a finding of a lack of rights and legitimate interests. Additionally, resolving to hyperlinks of a complainant’s competitors demonstrates a lack of rights and legitimate interests in the disputed domain name per Policy ¶¶ 4(c)(i) & (iii). See The Lincoln Electric Company v. Privacy protection service - whoisproxy.ru, FA 1651493 (Forum January 13, 2016) (noting that, as Respondent used the disputed domain to promote Complainant’s distributor without license to do so, Respondent did not demonstrate any bona fide offering of goods or services or any legitimate noncommercial or fair use); see also CheapCaribbean.com, Inc. v. Moniker Privacy Services, FA1411001589962 (Forum Jan. 1, 2015) (“The Panel finds that Respondent’s use of the <cheepcaribbean.com> name to promote links in competition with Complainant’s travel agency services does not fall within Policy ¶ 4(c)(i)’s bona fide offering of goods or services, nor does it amount to a legitimate noncommercial or fair use described in Policy ¶ 4(c)(iii).”). Here, the disputed domain name resolves to a page offering Complainant’s products for sale and hyperlinks to Complainant’s competitors. The Panel here finds that Respondent lacks rights and legitimate interests in <blunteffects.com>.
Respondent raises no contentions with regards to Policy ¶ 4(a)(ii).
As Respondent has not provided a response to this action, Respondent has failed to meet its burden regarding proof of any rights or legitimate interest in the disputed domain.
Complainant has proven this element.
Complainant argues Respondent registered and uses <blunteffects.com> in bad faith. Complainant contends Respondent appropriates Complainant’s mark to attract Internet users confused as to the ownership of <blunteffects.com> for Respondent’s commercial gain. Use of a disputed domain name to divert Internet users otherwise seeking a complainant to a respondent’s website for respondent’s commercial gain signifies a finding of bad faith. See Perot Sys. Corp. v. Perot.net, FA 95312 (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); see also Fanuc Ltd v. Mach. Control Servs., FA 93667 (Forum Mar. 13, 2000) (finding that the respondent violated Policy ¶ 4(b)(iv) by creating a likelihood of confusion with the complainant's mark by using a domain name identical to the complainant’s mark to sell the complainant’s products). Here, Complainant argues, Respondent profits from the confusion created through registration of an identical domain name and sales of Complainant’s products. The Panel here finds that Respondent registered and uses <blunteffects.com> in bad faith pursuant to Policy ¶ 4(b)(iv).
Respondent raises no contentions with regards to Policy ¶ 4(a)(iii).
Complainant has proven this element.
As Complainant has established all three elements required under the ICANN Policy, the Panel concludes that Complainant’s requested relief shall be GRANTED.
Accordingly, it is Ordered that the <blunteffects.com> domain names be TRANSFERRED from Respondent to Complainant.
Darryl C. Wilson, Panelist
Dated: July 3, 2017
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page