For Your Ease Only, Inc v. Expired domain caught by auction winner.***Maybe for sale on Dynadot Marketplace*** c/o Dynadot
Claim Number: FA1806001791755
Complainant is For Your Ease Only, Inc (“Complainant”), represented by William Schultz of Merchant & Gould, P.C., Minnesota, USA. Respondent is Expired domain caught by auction winner.***Maybe for sale on Dynadot Marketplace*** c/o Dynadot (“Respondent”), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <inspirebylorigreiner.com> and <aspirebylorigreiner.com>, registered with Dynadot, 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.
Bruce E. Meyerson as Panelist.
Complainant submitted a Complaint to the Forum electronically on June 14, 2018; the Forum received payment on June 14, 2018.
On June 17, 2018, Dynadot, LLC confirmed by e-mail to the Forum that the <inspirebylorigreiner.com> and <aspirebylorigreiner.com> domain names are registered with Dynadot, LLC and that Respondent is the current registrant of the names. Dynadot, LLC has verified that Respondent is bound by the Dynadot, 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 June 19, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 9, 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@inspirebylorigreiner.com, postmaster@aspirebylorigreiner.com. Also on June 19, 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 July 11, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Bruce E. Meyerson 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 names be transferred from Respondent to Complainant.
A. Complainant
1. Complainant, For Your Ease Only, Inc., is the owner of the LORI GREINER mark used in connection with a wide range of products and services. Complainant has rights in the LORI GREINER mark through its trademark registrations with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 3,568,060, registered Jan. 27, 2009). Additionally, Complainant has USPTO applications for the ASPIRE BY LORI GREINER (e.g., Ser. No. 87,943,794, filed May 31, 2018) and the INSPIRE BY LORI GREINER (e.g., Ser. No. 87,943,827, filed May 31, 2018) marks.
2. Respondent’s <inspirebylorigreiner.com> and <aspirebylorigreiner.com> domain names[i] are confusingly similar to Complainant’s LORI GRIENER, ASPIRE BY LORI GREINER, and INSPIRE BY LORI GREINER marks as Respondent removes spaces within the mark and adds a “.com” generic top-level domain (“gTLD”) to Complainant’s marks.
3. Respondent has no rights or legitimate interests in the <inspirebylorigreiner.com> and <aspirebylorigreiner.com> domain names. Respondent is not licensed or permitted to use Complainant’s marks and is not commonly known by the domain names.
4. Additionally, Respondent is not using the domain names for a bona fide offering of goods or services or a legitimate noncommercial or fair use. Rather, Respondent uses the domain names to divert traffic from Complainant’s website to a website hosting advertising links. Further, Respondent’s attempts to sell the domain name indicate Respondent’s lack of rights or legitimate interests.
5. Respondent registered and uses the <inspirebylorigreiner.com> and <aspirebylorigreiner.com> domain names in bad faith. Respondent is willing to sell the domain names for more than out-of-pocket costs.
6. Furthermore, Respondent’s registration of the domain names immediately after a public announcement is opportunistic bad faith.
7. Finally, Respondent had actual knowledge of Complainant’s rights in the LORI GREINER and related marks.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant holds trademark rights for the LORI GREINER mark. Respondent’s domain names are confusingly similar to Complainant’s LORI GREINER mark. Complainant has established that Respondent lacks rights or legitimate interests in the use of the <inspirebylorigreiner.com> and <aspirebylorigreiner.com domain name and that Respondent registered and uses the 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 has rights in the LORI GREINER mark through its tradmark registration with the USPTO. Home Depot Product Authority, LLC v. Samy Yosef / Express Transporting, FA 1738124 (Forum July 28, 2017) (finding that registration with the USPTO was sufficient to establish the complainant’s rights in the HOME DEPOT mark).
Complainant contends Respondent <inspirebylorigreiner.com> and <aspirebylorigreiner.com> domain names are confusingly similar to Complainant’s LORI GREINER marks. Respondent has added the descriptive terms “aspire by” and “inspire by,” and a “.com” gTLD to Complainant’s LORI GREINER mark. These changes are insufficient to distinguish the domain names from Complainant’s mark. Therefore, the Panel finds Respondent’s domain names are confusingly similar to Complainant’s LORI GREINER mark per Policy ¶ 4(a)(i).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(i).
Complainant alleges that Respondent holds no rights or legitimate interests in the <inspirebylorigreiner.com> and <aspirebylorigreiner.com> domain names. This allegation must be supported with a prima facie showing by Complainant under Policy ¶ 4(a)(ii). After a complainant successfully makes a prima facie case, a respondent is faced with the burden of proving it does have rights or legitimate interests in the domain name. In Swedish Match UK Ltd. v. Admin, Domain, FA 873137 (Forum Feb. 13, 2007), the panel held that when a complainant produces a prima facie case, the burden of proof then shifts to the respondent to demonstrate its rights or legitimate interests in the domain name under Policy ¶ 4(c); see also Compagnie Generale des Matieres Nucleaires v. Greenpeace Int’l, D2001-0376 (WIPO May 14, 2001) (“For the purposes of this sub paragraph, however, it is sufficient for the Complainant to show a prima facie case and the burden of proof is then shifted on to the shoulders of Respondent. In those circumstances, the common approach is for respondents to seek to bring themselves within one of the examples of paragraph 4(c) or put forward some other reason why they can fairly be said to have a relevant right or legitimate interests in respect of the domain name in question.”). The Panel holds that Complainant has made a prima facie case.
Complainant asserts Respondent has no rights or legitimate interests in the <inspirebylorigreiner.com> and <aspirebylorigreiner.com> domain names. Specifically, Complainant argues Respondent is not licensed or permitted to use Complainant’s LORI GREINER mark and is not commonly known by the domain names. Where a response is lacking, relevant WHOIS information may be used to determine whether a respondent is commonly known by the a domain name under Policy ¶ 4(c)(ii). See Guardair Corporation v. Pablo Palermo, FA1407001571060 (Forum Aug. 28, 2014) (holding that the respondent was not commonly known by the <guardair.com> domain name according to Policy ¶ 4(c)(ii), as the WHOIS information lists “Pablo Palermo” as registrant of the disputed domain name). The WHOIS information for the domain names list Respondent as “Expired domain caught by auction winner.***Maybe for sale on Dynadot Marketplace*** c/o Dynadot.” Thus, the Panel agrees Respondent is not commonly known by the <inspirebylorigreiner.com> and <aspirebylorigreiner.com> domain names per Policy ¶ 4(c)(ii).
Complainant argues Respondent attempts to sell the <inspirebylorigreiner.com> and <aspirebylorigreiner.com> domain names, which indicates a lack of rights or legitimate interests. Complainant has provided evidence that Respondent’s resolving websites contain offers to sell each domain name for $950. Attempts to sell a domain name under the circumstances of this case indicate a lack of rights or legitimate interests in the domain name under Policy ¶ 4(a)(ii). See Enterprise Holdings, Inc. v. Huang Jia Lin, FA1504001614086 (Forum May 25, 2015) (“Accordingly, the Panel finds that Respondent’s general attempt to sell the disputed domain name is further evidence of Respondent’s lack of rights and legitimate interests under Policy ¶ 4(a)(ii).”).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant alleges Respondent registered and uses the <inspirebylorigreiner.com> and <aspirebylorigreiner.com> domain names in bad faith. Respondent’s willingness to sell the domain names for more than out-of-pocket costs demonstrates bad faith. Therefore, the Panel holds Respondent registered and uses the domain names in bad faith per Policy ¶ 4(b)(i).
Additionally, Complainant argues Respondent’s registration and use of the <inspirebylorigreiner.com> and <aspirebylorigreiner.com> domain names disrupts Complainant’s business and attracts users for commercial gain. Specifically, the evidence shows that Respondent previously used the domain names to resolve to websites which hosted links to Complainant’s competitors; this demonstrates bad faith under Policy ¶¶ 4(b)(iii) and (iv). See Health Republic Insurance Company v. Above.com Legal, FA1506001622088 (Forum July 10, 2015) (“The use of a domain name’s resolving website to host links to competitors of a complainant shows intent to disrupt that complainant’s business, thereby showing bad faith in use and registration under Policy ¶ 4(b)(iii).”). Therefore, the Panel finds Respondent registered and used the <inspirebylorigreiner.com> and <aspirebylorigreiner.com> domain names in bad faith per Policy ¶¶ 4(b)(iii) and (iv).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <inspirebylorigreiner.com> and <aspirebylorigreiner.com> domain names be TRANSFERRED from Respondent to Complainant.
Bruce E. Meyerson, Panelist
Dated: July 16, 2018
[i] The <inspirebylorigreiner.com> and <aspirebylorigreiner.com> domain names were both registered on June 4, 2018.
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