Adam Peacock v Thomas Nguyen
Claim Number: FA1902001829148
Complainant is Adam Peacock (“Complainant”), represented by Raeesabbas Mohamed, Arizona, USA. Respondent is Thomas Nguyen (“Respondent”), Mississippi, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <aqorn.com>, registered with GoDaddy.com, 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.
Darryl C. Wilson, as Panelist.
Complainant submitted a Complaint to the Forum electronically on February 8, 2019; the Forum received payment on February 8, 2019.
On February 8, 2019, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <aqorn.com> 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 15, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 7, 2019 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@aqorn.com. Also on February 15, 2019, 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 March 8, 2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Darryl C. Wilson 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 is a consulting company that focuses on cloud computing and software architecture consulting. Complainant has rights in the AQORN mark through its registration of the mark with the United States Patent and Trademark Office (“USPTO”) (e.g. Reg. No. 4,954,136, registered May 10, 2016). Respondent’s <aqorn.com> domain name is identical to Complainant’s mark.
Respondent has no rights or legitimate interests in the <aqorn.com> domain name. Rather, Respondent unlawfully hacked Complainant’s registration of the disputed domain name and changed the registration to make Respondent the owner of the domain name.
Respondent registered and uses the <aqorn.com> domain name in bad faith. The abusive, and suspicious circumstances surrounding Respondent’s possession of the domain name indicate that Respondent has registered the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the Complainant. Further, Respondent registered the domain name primarily for the purpose of disrupting the business of a competitor.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant is Adam Peacock (“Complainant”), of Roseville, CA, USA. Complainant is the owner of the domestic registration for the mark AQORN, which Complainant has used continuously since at least as early as 2011, in connection with the provision of consulting services for cloud computing and software architecture.
Respondent is Thomas Nguyen (“Respondent”), of Pearl, MS, USA. Respondent’s registrar’s address is listed as Scottsdale, AZ, USA. The Panel notes that the <aqorn.com> domain name was registered by Complainant on or about December 3, 2010. Complainant indicates that Respondent did not obtain ownership of the domain name until sometime in 2018.
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 AQORN mark through its registration of the mark with the USPTO (e.g. Reg. No. 4,954,136, registered May 10, 2016). Registration of a mark with the USPTO sufficiently confers a complainant’s rights in a mark for the purposes of Policy ¶ 4(a)(i). See Humor Rainbow, Inc. v. James Lee, FA 1626154 (Forum Aug. 11, 2015) (stating, “There exists an overwhelming consensus amongst UDRP panels that USPTO registrations are sufficient in demonstrating a complainant’s rights under Policy ¶ 4(a)(i) and its vested interests in a mark. . . . Due to Complainant’s attached USPTO registration on the principal register at Exhibit 1, the Panel agrees that it has sufficiently demonstrated its rights per Policy ¶ 4(a)(i).”). The Panel here finds that Complainant has established rights in the AQORN mark for the purposes of Policy ¶ 4(a)(i).
Complainant next argues that Respondent’s <aqorn.com> domain name is identical to Complainant’s mark. The addition of a generic top-level domain (“gTLD”) is generally considered irrelevant for the purposes of a Policy ¶ 4(a)(i) analysis. See Marquette Golf Club v. Al Perkins, FA 1738263 (Forum July 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.”). The Panel here finds that the <aqorn.com> domain name is identical to the AQORN mark under Policy ¶ 4(a)(i).
Respondent raises no contentions with regards to Policy ¶ 4(a)(i).
The Complainant has proven this element.
The Panel notes that 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”). The Panel here finds that Complainant has set forth the requisite prima facie case.
Complainant argues that Respondent has no rights or legitimate interests in the <aqorn.com> domain name as Respondent unlawfully hacked Complainant’s registration of the domain name and changed the registration to make Respondent the owner of the domain name. A respondent who registers/hijacks a domain name previously held by a complainant can be found to lack rights and legitimate interests in that domain name. See CIKA ELECTRONICA SRL v. Ge Chunzi, FA 1796322 (Forum Aug. 9, 2018) (“If opportunistically registering a domain name that a complainant inadvertently allowed to lapse cannot confer rights or legitimate interests upon a respondent, it is even more evident that a respondent who hacks into a registry account and unlawfully transfers a domain name to his own account cannot thereby acquire rights or legitimate interests in that name.”). Complainant provides various exhibits as evidence that Complainant initially registered the domain name in 2010, and communicated extensively with the registrar when Complainant noticed that the registration information on the account associated with the <aqorn.com> domain name was changed without Complainant’s authorization. The Panel here finds that Complainant’s initial registration and ownership of the disputed domain, prior to Respondent’s hacking activities, supports Complainant’s assertion that Respondent lacks rights and legitimate interests in the domain name per Policy ¶ 4(a)(ii).
Respondent raises no contentions with regards to Policy ¶ 4(a)(ii).
The Complainant has proven this element.
Complainant claims that given the abusive and suspicious circumstances surrounding Respondent’s possession of the domain name, Respondent registered the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the Complainant. The surrounding circumstances of the domain name may indicate an intent to sell a domain name for profit under Policy ¶ 4(b)(i). See Jireh Industries Ltd. v. DVLPMNT MARKETING, INC. / Domain Administrator, FA1735270 (Forum July 8, 2017) (“Although Complainant provides no evidence to support this assertion, the Panel notes that registration of a disputed domain name to which a respondent has no known connection may indicate an intent to sell the same.”). Complainant asserts that Respondent hijacked the domain name account from Complainant, and infers that Respondent must have done so to profit from the eventual sale of the domain name to Complainant. Respondent does not answer or refute Complainant’s assertion, thus the Panel here accepts Complainant’s argument as evidence of Respondent’s bad faith under Policy ¶ 4(b)(i).
Further, Complainant argues that it previously owned the domain name prior to Respondent unlawfully hijacking it. Bad faith can be found where a complainant previously owned a domain name prior to a respondent gaining wrongful possession of the domain name. See CIKA ELECTRONICA SRL v. Ge Chunzi, FA 1796322 (Forum Aug. 9, 2018) (“The non-exclusive nature of Policy ¶ 4(b) allows for consideration of additional factors in an analysis for bad faith, and Complainant’s evidence of its former ownership and use of the Domain Name, coupled with Respondent’s current registration thereof, are sufficient in the view of the Panel to support a finding that Respondent did in fact hijack the Domain Name from Complainant, and this is manifest evidence of bad faith use and registration for the purposes of Policy ¶ 4(a)(iii).”). As noted above, Complainant provides various exhibits, which show that Complainant initially registered the domain name in 2010, and communicated extensively with the registrar when Complainant noticed that the registration information changed without Complainant’s authorization. The Panel here finds that Complainant’s prior ownership, and Respondent’s unauthorized hijacking activities, indicative of Respondent’s bad faith under Policy ¶ 4(a)(iii).
Respondent raises no contentions with regards to Policy ¶ 4(a)(iii).
The Complainant has proven this element.
As the Complainant has established all three elements required under the ICANN Policy, the Panel concludes that Complainant’s requested relief shall be GRANTED.
Accordingly, it is Ordered that the <aqorn.com> domain name be TRANSFERRED from Respondent to Complainant.
Darryl C. Wilson, Panelist
Dated: March 22, 2019
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