Love City Brewing Company v. Anker Fog / Love City Brewing Company
Claim Number: FA1710001753144
Complainant is Love City Brewing Company (“Complainant”), represented by Melissa Walter of Love City Brewing Company, Pennsylvania, USA. Respondent is Anker Fog / Love City Brewing Company (“Respondent”), Pennsylvania, USA.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <lovecitybrewing.com> and <lovecitybrewingcompany.com>, registered with Tucows Domains Inc..
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.
Ho Hyun Nahm, Esq. as Panelist.
Complainant submitted a Complaint to the Forum electronically on October 11, 2017; the Forum received payment on October 11, 2017.
On Oct 12, 2017, Tucows Domains Inc. confirmed by e-mail to the Forum that the <lovecitybrewing.com> and <lovecitybrewingcompany.com> domain names are registered with Tucows Domains Inc. and that Respondent is the current registrant of the names. Tucows Domains Inc. has verified that Respondent is bound by the Tucows Domains 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 October 23, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 13, 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@lovecitybrewing.com, postmaster@lovecitybrewingcompany.com. Also on October 23, 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 November 14, 2017, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Ho Hyun Nahm, Esq., 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.
On November 20, 2017, the Complainant filed an additional Submission which was timely.
Complainant requests that the domain names be transferred from Respondent to Complainant.
A. Complainant
i) Complainant, Love City Brewing Company, uses the LOVE CITY BREWING COMPANY mark to market its craft brewery in Philadelphia, Pennsylvania. Complainant claims rights in the mark based upon a pending but received both Notice of Allowance and Notice of Approval trademark application with the United States Patent and Trademark Office (“USPTO”). (Ser. No. 86844714, filed Dec. 10, 2015) See Amend Compl. Ex. A. & B. Once the allowance of approval is rendered its trademark right may be considered as dating back to the filing date. Respondent’s <lovecitybrewing.com> and <lovecitybrewingcompany.com> are identical or confusingly similar to Complainant’s mark, as each consists entirely of Complainant’s mark, less the spacing, and the generic top level domain
(“gTLD”) “.com.” The <lovecitybrewing.com> domain name also omits the word “company” from the mark.
ii) Respondent does not have rights or legitimate interests in the <lovecitybrewing.com> or <lovecitybrewingcompany.com> domain names. Respondent is not commonly known by the disputed domain names. Respondent is not using the disputed domain names to make a bona fide offering of goods or services or for a legitimate non-commercial or fair use. Rather, Respondent’s <lovecitybrewing.com> and <lovecitybrewingcompany.com> domain names resolve to inactive websites.
iii) Respondent has registered and used the <lovecitybrewing.com> and <lovecitybrewingcompany.com> domain names in bad faith. Respondent is inactively holding the disputed domain names and attempting to disrupt Complainant’s business.
Respondent
Respondent did not submit a Response in this proceeding. The Panel notes that the disputed domain name was created on August 6, 2015.
C. Complainant's Additional Submissions
Complainant’s additional submissions consist of amendements clarifying the identification of Respondent and its contact information according to the current WHOIS registration information for the disputed domain name. An additional amendment was made to include a copy of the related ICANN Policy as an anne, as required by Rule 3(b)(xiv).
Complainant established that it had rights in the mark contained in the disputed domain names. Each of the disputed domain names is confusingly similar to Complainant’s protected mark.
Respondent has no rights to or legitimate interests in the disputed domain names.
Respondent registered and used the disputed domain names in bad faith.
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, Love City Brewing Company, uses the LOVE CITY BREWING COMPANY mark to market its craft brewery in Philadelphia, Pennsylvania. Complainant claims rights in the mark based upon a pending but received both Notice of Allowance and Notice of Approval trademark application with the United States Patent and Trademark Office (“USPTO”). (Ser. No. 86844714, filed Dec. 10, 2015) See Amend Compl. Ex. A. & B. This Panel is of the view that once the allowance of approval is rendered its trademark right may be considered as dating back to the filing date. The Approved and Allowed application will be sufficient to establish its trademark right with the USPTO ( Ser. No. 86844714, filed on Dec. 10, 2015) See Amend. Compl. Ex. A.&B. Therefore, the Panel finds that Complainant established rights in the LOVE CITY BREWING COMPANY mark per Policy ¶ 4(a)(i).
Complainant asserts that <lovecitybrewing.com>, <lovecitybrewingcompany.com> are confusingly similar to the LOVE CITY BREWING COMPANY mark. The Panel may note each name consists entirely of Complainant’s mark, less the spacing, and the generic top level domain
(“gTLD”) “.com.” Panels have consistently found that slight differences between domain names and registered marks, such as the addition of words that describe the goods or services in connection with the mark or removal of a space, do not distinguish the domain name from the mark incorporated therein. See Research Now Group, Inc. v. Pan Jing, FA 1735345 (Forum July 14, 2017) (“Complainant also asserts that Respondent’s <researchnow.host>, <researchnow.top> and <researchnow.club> domain names are confusingly similar to Complainant’s mark because each merely eliminates the space and appends a gTLD to the fully incorporated mark. The addition of a gTLD and elimination of spacing are both considered irrelevant when distinguishing between a mark and a domain name.”). The panel may note the <lovecitybrewing.com> domain name also omits the word “company” from the mark. See VNY Model Management, Inc. v. Lisa Katz / Domain Protection LLC, FA 1625115 (Forum Aug. 17, 2015) (finding that Respondent’s <vnymodels.com> domain name is confusingly similar to the VNY MODEL MANAGEMENT mark under Policy ¶ 4(a)(i).). The Panel agrees with Complainant and finds that <lovecitybrewing.com> and <lovecitybrewingcompany.com> do not contain changes that would sufficiently distinguish them from the LOVE CITY BREWING COMPANY mark.
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), and 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); see also AOL LLC v. Gerberg, FA 780200 (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 <lovecitybrewing.com> and <lovecitybrewingcompany.com> as Respondent is not commonly known by the disputed domain names. Where a response is lacking, WHOIS information can support a finding that a respondent is not commonly known by the disputed domain name. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum Sept. 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark.). The WHOIS information of record identifies registrant as “Anker Fog.” Additionally, lack of evidence in the record to indicate that the respondent has been authorized to register a domain name using a complainant’s mark supports a finding that respondent does not have rights or legitimate interests in the disputed domain name. See Navistar International Corporation v. N Rahmany, FA1505001620789 (Forum June 8, 2015) (finding that the respondent was not commonly known by the disputed domain name where the complainant had never authorized the respondent to incorporate its NAVISTAR mark in any domain name registration). Complainant asserts that there are no other breweries in the United States or Canada with business names that could possibly be reflected by these domain names. The Panel therefore finds under Policy ¶ 4(c)(ii) that Respondent has not been commonly known by the disputed domain names.
Complainant contends that Respondent has made no effort to use the <lovecitybrewing.com> or <lovecitybrewingcompany.com> domain names since they were registered. When a respondent is not using the disputed domain name in connection with an active website, such a respondent may not be able to avail itself of Policy ¶¶ 4(c)(i) and (iii). See Kohler Co. v xi long chen, FA 1737910 (Forum Aug. 4, 2017) (”Respondent has not made a bona fide offering of goods or services, or a legitimate non-commercial or fair use of the domain. Respondent’s <kohler-corporation.com> resolves to an inactive webpage displaying the message “website coming soon!”). Complainant notes Respondent’s domain names lead to an expired notification on the “Squarespace” platform, indicating that these names are not actively being used. See Amend. Compl. Ex. E. Therefore, the Panel agrees that the <lovecitybrewing.com>, <lovecitybrewingcompany.com> domain names are inactively used and as such is not a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii).
The Panel finds that Complainant has made out a prima facie case that arises from the considerations above. All of these matters go to make out the prima facie case against Respondent. As Respondent has not filed a Response or attempted by any other means to rebut the prima facie case against it, the Panel finds that Respondent has no rights or legitimate interests in the disputed domain names.
Complainant argues that Respondent registered and uses the disputed domain names in bad faith because Respondent attempts to disrupt Complainant’s business. Using a confusingly similar domain name to disrupt complainant’s business constitutes bad faith. See EthnicGrocer.com, Inc. v. Unlimited Latin Flavors, Inc., FA 94385 (Forum July 7, 2000) (finding that the minor degree of variation from the complainant's marks suggests that the respondent, the complainant’s competitor, registered the names primarily for the purpose of disrupting the complainant's business). Here, Complainant asserts that Respondent intends to disrupt Complainant’s business by pointing potential customers and vendors to an expired webpage. See Amend. Compl. Ex. E. This may create the perception that Complainant is closed, never existed, or is not a legitimate business. Therefore, the Panel finds that Respondent registered and uses the disputed domain names in bad faith.
Complainant argues that Respondent’s failure to make an active use of the disputed domain name evinces bad faith. Panels have held that an inactive use of a domain name which is confusingly similar to a complainant’s mark is considered bad faith under Policy ¶ 4(a)(iii). See Dermtek Pharmaceuticals Ltd. v. Sang Im / Private Registration, FA1310001522801 (Forum Nov. 19, 2013) (holding that because the respondent’s website contained no content related to the domain name and instead generated the error message “Error 400- Bad Request,” the respondent had registered and used the disputed domain name in bad faith pursuant to Policy ¶ 4(a)(iii)). Here, Complainant contends that Respondent’s disputed domain names have never resolved to an active website. See Amend. Compl. Ex. E. The Panel agrees with Complainant and finds that Respondent registered and uses the disputed domain names in bad faith pursuant to the Policy.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <lovecitybrewing.com> and <lovecitybrewingcompany.com> domain name be TRANSFERRED from Respondent to Complainant.
Ho Hyun Nahm, Esq., Panelist
Dated: November 27, 2017
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