DECISION

 

Melyssa Griffin and The Nectar Collective, LLC v. Jennifer Shannahan

Claim Number: FA1802001771294

PARTIES

Complainant is Melyssa Griffin and The Nectar Collective, LLC (“Complainant”), represented by Autumn Witt Boyd, Tennessee, USA.  Respondent is Jennifer Shannahan (“Respondent”)

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <melyssagriffin.me>, registered with NameCheap, Inc..

 

PANEL

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.

 

John J. Upchurch as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to the Forum electronically on February 9, 2018; the Forum received payment on February 9, 2018.

 

On February 12, 2018, NameCheap, Inc. confirmed by e-mail to the Forum that the <melyssagriffin.me> domain name is registered with NameCheap, Inc. and that Respondent is the current registrant of the name.  NameCheap, Inc. has verified that Respondent is bound by the NameCheap, 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 February 16, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 8, 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@melyssagriffin.me.  Also on February 16, 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.

 

A timely Response was received and determined to be complete on February 20, 2018.

 

On February 23, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed John J. Upchurch 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.

 

RELIEF SOUGHT

Complainant requests that the domain name be transferred from Respondent to Complainant.

 

PRELIMINARY ISSUE:  IDENTITY THEFT

            In the Response, the owner of Respondent ZFERRAL claimed to have no knowledge of the disputed domain name, or having any knowledge of or relationship with Jennifer Shannahan, listed as an alternate Respondent.  ZFERRAL disclaimed any interest in the subject domain name, and thus implicitly consents to the relief sought by Complainant.  Reference to “Respondent” hereinafter shall be to the alternate Respondent, Jennifer Shannahan.

 

PARTIES' CONTENTIONS

A.   Complainant

1.    Complainant asserts common law rights in the MELYSSA GRIFFIN mark. Respondent’s <melyssagriffin.me> domain name is nearly identical and confusingly similar to Complainant’s mark as it copies Complainant’s own name and unique spelling.

2.    Respondent has no rights or legitimate interests in the <melyssagriffin.me> domain name. Respondent is not commonly known by the disputed domain name, nor has Complainant authorized, licensed, or otherwise permitted Respondent to use the mark. Respondent also does not use the disputed domain name in connection with a bona fide offering of goods or services or legitimate noncommercial or fair use. Rather, Respondent passes off as Complainant to create confusion and steal credit card information from Internet users who believe Respondent is Complainant.

3.    Respondent registered and uses the <melyssagriffin.me> domain name in bad faith. Respondent intentionally attracts, for commercial gain, Internet users otherwise seeking Complainant for Respondent’s commercial gain via a fraudulent scheme to steal credit card information.

 

B.   Respondent

1.    Respondent failed to submit a response in this proceeding.

 

FINDINGS

1.    Respondent’s <melyssagriffin.me> domain name is confusingly similar to Complainant’s Melyssa Griffin mark.

2.    Respondent does not have any rights or legitimate interests in the <melyssagriffin.me> domain name.

3.    Respondent registered or used the <melyssagriffin.me> domain name in bad faith.

 

DISCUSSION

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.

 

Identical and/or Confusingly Similar

Complainant asserts common law rights in the MELYSSA GRIFFIN mark. Policy ¶ 4(a)(i) allows for common law rights where a complainant can establish secondary meaning instilled within a mark. See Klabzuba Oil & Gas, Inc. v. LAKHPAT SINGH BHANDARI, FA 1625750 (Forum Jul. 17, 2015) (holding, “Complainant has provided evidence of secondary meaning by providing evidence of length of use in the mark; evidence of holding an identical domain name; media recognition; and promotional material/advertising (including letterhead and business cards). Complainant has used its mark in the oil and gas industry since 1997.  Complainant has used its mark in the real estate industry since 2004.  Complainant’s rights were previously recognized in Klabzuba Oil & Gas, Inc. v. ross micheal, Claim Number: FA1505001619813.”); see also Artistic Pursuit LLC v. calcuttawebdevelopers.com, FA 894477 (Forum Mar. 8, 2007) (finding that Policy ¶ 4(a)(i) does not require a trademark registration if a complainant can establish common law rights in its mark); see also James v. Demand Domains, FA 1106240 (Forum Dec. 27, 2007) (“The AMI JAMES mark has become distinct through Complainant’s use and exposure of the mark in the marketplace and through use of the mark in connection with Complainant’s television show, clothing line, and tattoo shop for over seventeen years.”). Complainant asserts that since 2013, Complainant Melyssa Griffin has been using her own name as a trademark and service mark to identify the source of Complainant’s services and products, for commercial purposes, including through her Blog. In addition, Complainant asserts Complainant registered her name as a domain name (melyssagriffin.com). See Amend. Compl. Annex 1. The Panel agrees with Complainant and finds Complainant has demonstrated secondary meaning within the MELYSSA GRIFFIN mark, thus providing common law rights in the mark.

 

Next, Complainant argues that Respondent’s <melyssagriffin.me> domain name is confusingly similar to Complainant’s mark as it copies Complainant’s own name and unique spelling. Similar changes in a registered mark have failed to sufficiently distinguish a domain name for the purposes of Policy ¶4(a)(i). See Marquette Golf Club v. Al Perkins, FA 1738263 (Forum Jul. 27, 2017) (“When a respondent’s domain name incorporates a mark in its entirety and merely adds a generic top-level domain (gTLD), “.com”, then the Panel may find that the disputed domain name is identical to Complainant’s mark.”); see also Cards Against Humanity, LLC v. sri winarti, FA 1736823 (Forum Jul. 31, 2017) (“The Panel therefore finds Respondent’s <cardsagainsthumanity.us> to be identical to Complainant’s CARDS AGAINST HUMANITY mark.”). The Panel agrees with Complainant and finds that the <melyssagriffin.me> domain name is identical to or confusingly similar to the MELYSSA GRIFFIN mark under Policy ¶4(a)(i).

 

 

Rights or Legitimate Interests

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 Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“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”).

 

Complainant argues that Respondent has no rights or legitimate interests in the <melyssagriffin.me> domain name as Respondent is not commonly known by the disputed domain name, nor has Complainant authorized Respondent to use the MELYSSA GRIFFIN mark. Where a response is lacking, WHOIS information can support a finding that the respondent is not commonly known by the disputed domain name, especially where a privacy service has been engaged. See State Farm Mutual Automobile Insurance Company v. Dale Anderson, FA1504001613011 (Forum May 21, 2015) (concluding that because the WHOIS record lists “Dale Anderson” as the registrant of the disputed domain name, the respondent was not commonly known by the <statefarmforum.com> domain name pursuant to Policy ¶ 4(c)(ii)); see also Kohler Co. v. Privacy Service, FA1505001621573 (Forum Jul. 2, 2015) (holding that the respondent was not commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii) where “Privacy Service” was listed as the registrant of the disputed domain name). The Panel notes that a privacy service was used by Respondent, but was lifted as a result of the commencement of this proceeding. As a result, the Panel may note that the WHOIS information of record identifies Respondent as “Jennifer Shannahan / ZFERRAL, INC..” Additionally, lack of evidence in the record to indicate that a complainant authorized respondent to register a domain name using a complainant’s mark supports a finding that Respondent does not have rights or legitimate interests in a disputed domain name. See Navistar International Corporation v. N Rahmany, FA1505001620789 (Forum Jun. 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). The Panel therefore finds under Policy ¶ 4(c)(ii) that Respondent is not commonly known by the <melyssagriffin.me> domain name under Policy ¶ 4(c)(ii).

 

Complainant next argues that Respondent also doesn’t use the disputed domain for any bona fide offering of goods or services or a legitimate noncommercial or fair use because it attempts to pass off as Complainant for its own commercial gain. Passing off can evince a lack of a bona fide offering of goods or services or a legitimate noncommercial or fair use. See Netflix, Inc. v. Irpan Panjul / 3corp.inc, FA 1741976 (Forum Aug. 22, 2017) (“The usage of Complainant’s NETFLIX mark which has a significant reputation in relation to audio visual services for unauthorised audio visual material is not fair as the site does not make it clear that there is no commercial connection with Complainant and this amounts to passing off . . . As such the Panelist  finds that Respondent does not have rights or a legitimate interest in the Domain Name.”). Complainant asserts Respondent duplicates Complainant’s own webpages exactly in an attempt to create the mistaken belief Respondent is Complainant for Respondent’s commercial gain via the sale of Complainant’s own products and services on the disputed domain name’s resolving website. See Amend. Compl. Annex 1, 2, 5—11. The Panel therefore finds that Respondent has failed to provide a bona fide offering of goods or services under Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use per Policy ¶ 4(c)(iii).

 

Registration and Use in Bad Faith

Complainant argues that Respondent registered and is using the <melyssagriffin.me> domain name in bad faith by creating a likelihood for confusion as to the source, sponsorship, affiliation, or endorsement of the disputed domain name to commercially benefit by offering competing goods or services. Commercially benefiting via intentional confusion can evince bad faith registration and use. See Citadel LLC and its related entity, KCG IP Holdings, LLC v. Joel Lespinasse / Radius Group, FA1409001579141 (Forum Oct. 15, 2014) (“Here, the Panel finds evidence of Policy ¶ 4(b)(iv) bad faith as Respondent has used the confusingly similar domain name to promote its own financial management and consulting services in competition with Complainant.”); see also Xylem Inc. and Xylem IP Holdings LLC v. YinSi BaoHu YiKaiQi, FA1504001612750 (Forum May 13, 2015) (“The Panel agrees that Respondent’s use of the website to display products similar to Complainant’s, imputes intent to attract Internet users for commercial gain, and finds bad faith per Policy ¶ 4(b)(iv).”). Complainant asserts Respondent registered the disputed domain name and copied Complainant’s website in an attempt to create confusion and steal money from Complainant’s customers. The Panel agrees with Complainant and find that Respondent attempted to commercially benefit off Complainant’s mark in bad faith under Policy ¶ 4(b)(iv).

 

DECISION

Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.

 

Accordingly, it is Ordered that the <melyssagriffin.me> domain name be TRANSFERRED from Respondent to Complainant.

 

John J. Upchurch, Panelist

Dated:  March 7, 2018