Great Lakes Higher Education Corporation v. SUSHIL KUMAR
Claim Number: FA1811001814798
Complainant is Great Lakes Higher Education Corporation (“Complainant”), represented by Laura M. Konkel of Michael Best & Friedrich LLP, Wisconsin, USA. Respondent is SUSHIL KUMAR (“Respondent”), Chandigarh, India.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <attigo.org>, registered with GoDaddy.com, LLC.
The undersigned certifies that she has acted independently and impartially and to the best of her knowledge has no known conflict in serving as Panelist in this proceeding.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to the Forum electronically on November 2, 2018; the Forum received payment on November 2, 2018.
On November 5, 2018, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <attigo.org> 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 November 5, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 26, 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@attigo.org. Also on November 5, 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 November 30, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Sandra J. Franklin 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
1. Respondent’s <attigo.org> domain name is confusingly similar to Complainant’s ATTIGO mark.
2. Respondent does not have any rights or legitimate interests in the <attigo.org> domain name.
3. Respondent registered and uses the <attigo.org> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Great Lakes Higher Education Corporation, is an affiliated group of companies that offer services related to higher education and student loan repayment using the ATTIGO mark. Complainant holds a registration for the ATTIGO mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 5,586,850, registered Oct. 16, 2018).
Respondent registered the <attigo.org> domain name on January 4, 2018, and inactively holds 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.”).
Complainant claims rights in the ATTIGO mark based upon registration of the mark with the USPTO. Registration of a mark with the USPTO is generally sufficient to establish rights in that mark. See Liberty Global Logistics, LLC v. damilola emmanuel / tovary services limited, FA 1738536 (Forum Aug. 4, 2017) (stating, “Registration of a mark with the USPTO sufficiently establishes the required rights in the mark for purposes of the Policy.”). Complainant provides a copy of its USPTO registration for the ATTIGO mark, registered on October 16, 2018, after Respondent’s registration of the disputed domain name. However, Complainant filed the trademark application for the ATTIGO mark on November 14, 2016, well before Respondent registered the <attigo.org> domain name. Therefore, the Panel finds that Complainant has rights in the ATTIGO mark dating back to the trademark application filing date. See Adorama, Inc. v. Moniker Privacy Services, FA 1610020 (Forum May 1, 2015) (“Trademark protection extends back to the application filing date of a registered mark.”); see also Bittrex, Inc. v. Super Privacy Service LTD c/o Dynadot, FA 1790692 (Forum July 12, 2018) (finding that complainant’s filing date was sufficient to is sufficient to establish rights in the mark under Policy ¶ 4 (a)(i).)
Respondent’s <attigo.org> domain name incorporates the ATTIGO mark in its entirety and adds the “.org” generic top‐level domain (“gTLD”). The addition of a gTLD to a mark does not distinguish the disputed domain name from the mark. See 3M Company v. Kabir S Rawat, FA 1725079 (Forum May 9, 2017) (”Respondent’s <nexcare.org> domain name incorporates the NEXCARE mark and merely adds “.org.” This addition does not distinguish the disputed domain name from Complainant’s mark… Thus, the Panel finds that Respondent’s <nexcare.org> domain name is confusingly similar to Complainant’s NEXCARE mark.”). Accordingly, the Panel finds that Respondent’s <attigo.org> domain name is confusingly similar to Complainant’s ATTIGO mark.
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(i).
Once Complainant makes a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), 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 asserts that Respondent has no rights or legitimate interests in the <attigo.org> domain name and is not commonly known by the domain name. Complainant has not authorized Respondent to use the ATTIGO mark in any way. The WHOIS information of record identifies the registrant of the disputed domain name as “Sushil Kumar.” The Panel therefore finds under Policy ¶ 4(c)(ii) that Respondent is not commonly known by the <attigo.org> domain name. 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); see also Emerson Electric Co. v. golden humble / golden globals, FA 1787128 (Forum June 11, 2018) (“lack of evidence in the record to indicate a respondent is authorized to use [the] complainant’s mark may support a finding that [the] respondent does not have rights or legitimate interests in the disputed domain name per Policy ¶ 4(c)(ii)”).
Complainant further argues that Respondent’s lack of rights and legitimate interests in the <attigo.org> domain name because it fails to use the domain name for a bona fide offering of goods and services or for a legitimate or noncommercial or fair use. Complainant demonstrates that the disputed domain name leads to an undeveloped WordPress blog. The Panel therefore finds that Respondent does not have rights or legitimate interests in the <attigo.org> domain name under Policy ¶¶ 4(c)(i) or (iii). See Activision Blizzard, Inc. / Activision Publishing, Inc. / Blizzard Entertainment, Inc. v. Cimpress Schweiz GmbH, FA 1737429 (Forum Aug. 3, 2017) (“Complainant insists that Respondent has made no demonstrable preparations to use the disputed domain name. When Respondent is not using the disputed domain name in connection with an active website, the Panel may find that Respondent is not using the disputed domain name for a bona fide offering of goods or services… 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.”).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant contends that Respondent’s bad faith is indicated by its inactive holding of the disputed domain name. Failure to use a domain name can be evidence of bad faith registration and use under Policy ¶ 4(a)(iii). See Marsh Supermarkets Company, LLC, formerly known as Marsh Supermarkets, Inc. v. Choi Sungyeon, FA1312001532854 (Forum Feb. 25, 2014) (“Therefore, the Panel finds that Respondent registered and is using the <marshsupermarkets.com> domain name in bad faith pursuant to Policy ¶ 4(a)(iii) because Respondent has failed to make an active use of the disputed domain name.”). Accordingly, the Panel finds that Respondent is holding the <attigo.org> domain name in bad faith.
The Panel finds that 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 <attigo.org> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: December 2, 2018
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