Enphase Energy, Inc. v. Marcus Randall / 3rd i LLC
Claim Number: FA1801001768382
Complainant is Enphase Energy, Inc. (“Complainant”), represented by Charles P. Guarino of Moser Taboada, New Jersey, USA. Respondent is Marcus Randall / 3rd i LLC (“Respondent”), Kentucky, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <enphase.energy>, registered with GoDaddy.com, LLC.
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.
Kenneth L. Port as Panelist.
Complainant submitted a Complaint to the Forum electronically on January 23, 2018; the Forum received payment on January 23, 2018.
On January 24, 2018, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <enphase.energy> 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 February 1, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 21, 2018 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@enphase.energy. Also on February 1, 2018, 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 February 23, 2015, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Kenneth L. Port 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, Enphase Energy, Inc., is an energy technology company focused on providing solar generation, energy storage, and monitoring and control systems and services to residential and commercial customers throughout the world. Complainant uses its ENPHASE ENERGY mark to promote its products and services and established rights in the mark through registration with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 3,595,609, registered Mar. 24, 2009). See Amend. Compl. Ex. A. Respondent’s <enphase.energy> domain name is identical or confusingly similar to Complainant’s ENPHASE ENERGY mark because it merely separates the two terms with a period.
Respondent does not have rights or legitimate interests in the <enphase.energy> domain name. Complainant has not licensed or otherwise authorized Respondent to use its ENPHASE ENERGY in any fashion. Respondent is not commonly known by the disputed domain name as the WHOIS information of record lists “Marcus Randall / 3rd i LLC” as the registrant. See Amend. Compl. Ex. C. Respondent is not using the <enphase.energy> domain name in connection with any bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent uses the <enphase.energy> domain name to divert Internet users to website that features a message indicating the domain name is for sale.
Respondent registered and used the domain name in bad faith. Respondent attempts to disrupt Complainant’s business by diverting Internet users to its website. Further, Respondent attempts to create a likelihood of confusion between Complainant’s mark and the disputed domain name for Respondent’s commercial gain.
B. Respondent
Respondent failed to submit a Response in this proceeding. Respondent registered the <enphase.energy> domain name on December 8, 2017.
The Panel finds that the disputed domain name is confusingly similar to Complainant’s valid and subsisting trademark; that Respondent has no rights or legitimate interests in or to the disputed domain name; and that Respondent has engaged in bad faith use and registration of the disputed domain name.
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.”).
The Panel finds that the disputed domain name, <enphase.energy>, is confusingly similar to Complainant’s valid and subsisting trademark, ENPHASE ENERGY. Complainant has adequately plead its rights and interests in and to this trademark. Respondent arrives at the disputed domain name by taking the mark in its entirety, deleting a space, and adding a period. This is insufficient to distinguish the disputed domain name from Complainant’s trademark.
As such, the Panel finds that the disputed domain name is confusingly similar to Complainant’s trademark.
Additionally, the Panel finds that Respondent has no rights or legitimate interests in or to the disputed domain name. Respondent has no right, permission or license to register the disputed domain name. Respondent is not commonly known by the disputed domain name. Further, Respondent is not using the <enphase.energy> domain name in connection with any bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent appears to use the <enphase.energy> domain name to divert Internet users to a website that features a message indicating the domain name is for sale. Complainant argues that the <enphase.energy> domain name resolves to a website that features the message, “If your search led you here and you are interested in partnering on this project or taking over and creating your own idea or vision for this, or one of our upcoming projects listed below, please feel welcomed to reach out to us and share your personalized concepts.” See Amend. Compl. Ex. B.
As such, the Panel finds that Respondent has no rights or legitimate interests in or to the disputed domain name.
Further, the Panel finds that Respondent has engaged in bad faith use and registration of the disputed domain name. Complainant claims that Respondent registered and used the <enphase.energy> domain name in bad faith by disrupting Complainant’s business and diverting Internet users to its own website. Use of a disputed domain name to divert Internet users away from complainant’s website to respondent’s website may disrupt a complainant’s business and may be evidence of bad faith. See DatingDirect.com Ltd. v. Aston, FA 593977 (Forum Dec. 28, 2005) (“Respondent is appropriating Complainant’s mark to divert Complainant’s customers to Respondent’s competing business. The Panel finds this diversion is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iii).”). Complainant contends that screenshots of the <enphase.energy> domain name’s resolving website indicate that the site is used for a business called “Marcus.Ventures” and features information about how to purchase the disputed domain name. See Amend. Compl. Ex. B. As such, the Panel finds that Respondent disrupted Complainant’s business and engaged in bad faith use under Policy ¶ 4(b)(iii).
Further, Complainant alleges that Respondent attempts to create a likelihood of confusion between Complainant’s mark and the disputed domain name for Respondent’s commercial gain. Use of a domain name to create confusion as to the source, sponsorship, affiliation or endorsement therein for a respondent’s commercial gain may evidence bad faith registration and use. See H-D Michigan, Inc. v. Petersons Auto., FA 135608 (Forum Jan. 8, 2003) (finding that the disputed domain name was registered and used in bad faith pursuant to Policy ¶ 4(b)(iv) through the respondent’s registration and use of the infringing domain name to intentionally attempt to attract Internet users to its fraudulent website by using the complainant’s famous marks and likeness). Complainant contends that screenshots of the confusingly similar domain name’s resolving website indicate that the site contains information about how to purchase the domain name from Respondent. See Amend. Compl. Ex. B. Complainant contends that Respondent presumably profits off of this confusion. See Amend. Compl. p. 6. Therefore, the Panel finds that Respondent used the domain name to create confusion with Complainant’s mark for Respondent’s own commercial gain. As such, the Panel finds that Respondent registered and used the domain name in bad faith pursuant to Policy ¶ 4(b)(iv).
Furthermore, the Panel finds that, given the totality of the circumstances, Respondent registered the disputed domain name with actual knowledge of Complainant’s prior rights in and to the trademark ENPHASE ENERGY.
As such, the Panel finds that Respondent engaged in bad faith use and registration of the disputed 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 <enphase.energy> domain name transferred from Respondent to Complainant.
Kenneth L. Port, Panelist
Dated: February 26, 2018
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