Lloyd Irvin v. [Registrant]
Claim Number: FA1606001677800
Complainant is Lloyd Irvin (“Complainant”), represented by Steven L. Rinehart, Utah. Respondent is [Registrant] (“Respondent”), Unknown.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <lloydirvinrapetruth.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.
Hon. Karl V. Fink (Ret.) as Panelist.
Complainant submitted a Complaint to the Forum electronically on June 2, 2016; the Forum received payment on June 2, 2016.
On June 3, 2016, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <lloydirvinrapetruth.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 June 8, 2016, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 28, 2016 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@lloydirvinrapetruth.com. Also on June 8, 2016, 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 June 30, 2016, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Hon. Karl V. Fink (Ret.) 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.
Complainant
Complainant is a prominent martial arts coach who teaches mixed martial arts courses in the greater Washington D.C. area and who has competed in martial arts competitions for more than thirty years. Complainant has registered the LLOYD IRVIN mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 4,114,169, registered March 20, 2012), which demonstrates Complainant’s rights in the mark. The <lloydirvinrapetruth.com> domain is confusingly similar to Complainant’s mark as it wholly incorporates the LLOYD IRVIN mark and merely adds the generic phrase “rape truth” and the generic top-level domain (“gTLD”) “.com.”
Respondent has no rights or legitimate interests in the disputed domain. First, Respondent is not commonly known by the disputed domain name. Second, Respondent is not licensed or authorized to use Complainant’s mark. Finally, Respondent is not making a bona fide offering of goods or services through the disputed domain name or a legitimate noncommercial or fair use. Rather, Respondent uses its disputed domain name to divert Complainant’s customers to Respondent’s “gripe site,” or “criticism site.”
Respondent has registered and is using the disputed domain name in bad faith. Respondent’s resolving webpages contain false and misleading information that is calculated to interfere with Complainant’s economic relationships with other parties. Second, because Respondent knew that Internet users would be searching for the service mark LLOYD IRVIN, it is clear that Respondent had actual knowledge of Complainant’s mark and its rights therein at the time the domain was registered.
Respondent
Respondent did not submit a Response in this proceeding.
For the reasons set forth below, the Panel finds Complainant is entitled to the requested relief of transfer of the 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 is a prominent martial arts coach who teaches mixed martial arts courses in the greater Washington D.C. area and who has competed in martial arts competitions for more than thirty years. Complainant has registered the LLOYD IRVIN mark with the USPTO (Reg. No. 4,114,169, registered March 20, 2012), which Complainant argues demonstrates its rights in the mark. Panels have found that trademark registrations with the USPTO suffice to demonstrate a complainant’s rights in its mark for the purposes of Policy ¶ 4(a)(i), even with respect to a potential geographic disparity between the parties. See W.W. Grainger, Inc. v. Above.com Domain Privacy, FA 1334458 (Forum Aug. 24, 2010) (stating that “the Panel finds that USPTO registration is sufficient to establish these [Policy ¶ 4(a)(i)] rights even when Respondent lives or operates in a different country.”). Accordingly, the Panel finds that Complainant has demonstrated its rights in the LLOYD IRVIN mark pursuant to Policy ¶ 4(a)(i).
Complainant argues that the <lloydirvinrapetruth.com> domain is confusingly similar to Complainant’s mark as it wholly incorporates the LLOYD IRVIN mark and merely adds the generic phrase “rape truth” and the gTLD “.com.” Panels have generally concluded that neither the addition of generic terms nor the affixation of the gTLD “.com” suffices to adequately distinguish a respondent’s disputed domain from a complainant’s mark. See Arthur Guinness Son & Co. (Dublin) Ltd. v. Healy/BOSTH, D2001-0026 (WIPO Mar. 23, 2001) (finding confusing similarity where the domain name in dispute contains the identical mark of the complainant combined with a generic word or term); see also Reese v. Morgan, FA 917029 (Forum Apr. 5, 2007) (finding that the mere addition of the generic top-level domain “.com” is insufficient to differentiate a disputed domain name from a mark). Panels have also concluded that the elimination of the spaces between the words of a complainant’s mark does not serve to differentiate a respondent’s domain and a complainant’s mark. See Bond & Co. Jewelers, Inc. v. Tex. Int’l Prop. Assocs., FA 937650 (Forum Apr. 30, 2007) (finding that the elimination of spaces between terms and the addition of a gTLD do not establish distinctiveness from the complainant’s mark under Policy ¶ 4(a)(i)). Therefore, the Panel finds that Respondent’s disputed domain is confusingly similar to Complainant’s mark pursuant to Policy ¶ 4(a)(i).
Complainant has proved this element.
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), and then the burden shifts to Respondent to show it does have rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name); see also AOL LLC v. Gerberg, FA 780200 (Forum Sept. 25, 2006) (“Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.”).
Complainant argues that Respondent has no rights or legitimate interests in the disputed domain name. Complainant contends that Respondent is not commonly known by the disputed domain name. Complainant argues that Respondent has no license or authorization to use Complainant’s mark. The WHOIS information does not list the registrant’s name and Respondent has not provided any evidence for the Panel’s consideration. Therefore, the Panel finds there is no basis in the available record to find Respondent commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii). See Tercent Inc. v. Lee Yi, FA 139720 (Forum Feb. 10, 2003) (stating “nothing in [the respondent’s] WHOIS information implies that [the respondent] is ‘commonly known by’ the disputed domain name” as one factor in determining that Policy ¶ 4(c)(ii) does not apply).
Complainant contends that Respondent is not using the disputed domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use. Complainant argues that Respondent uses its disputed domain name to divert Complainant’s customers to Respondent’s “gripe site,” or “criticism site.” Panels have held that a respondent lacks rights and legitimate interests where it uses a disputed domain, which incorporates a complainant’s trademark, as a platform for criticizing the complainant. See Dar Al-Arkan Real Estate Development Company v. AnonymousSpeech AnonymousSpeech, D2012-0692 (WIPO June 4, 2012) (finding that “it is not legitimate to use the Complainant’s own trademark as a platform for criticizing the Complainant itself”). Accordingly, the Panel finds that Respondent is not using the disputed domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶ 4(c)(i) and Policy ¶ 4(c)(iii).
Complainant has proved this element.
Complainant argues that Respondent’s resolving webpage contains false and misleading information that is calculated to interfere with Complainant’s economic relationships with other parties. Complainant argues that Respondent uses the domain to divert Internet traffic intended for Complainant to Respondent. Panels have held that a respondent demonstrates bad faith under Policy ¶ 4(b)(iv) where it uses a disputed domain to attract Internet users that are seeking Complainant’s website to that of Respondent. See State Fair of Texas v. Granbury.com, FA 95288 (Forum Sept. 12, 2000) (finding bad faith where the respondent registered the domain name <bigtex.net> to infringe on the complainant’s goodwill and attract Internet users to the respondent’s website); see also CMG Worldwide, Inc. v. Lombardi, FA 95966 (Forum Jan. 12, 2001) (finding that the respondent’s use of the complainant’s VINCE LOMBARDI mark to divert Internet users to its commercial website located at the <vincelombardi.com> domain name constituted bad faith use and registration of the disputed domain name). Therefore, the Panel finds that Respondent has engaged in bad faith registration and use per Policy ¶ 4(b)(iv).
Complainant asserts that because Respondent knew that Internet users would be searching for the service mark LLOYD IRVIN, it is clear that Respondent had actual knowledge of Complainant’s mark and its rights therein at the time the domain was registered. Past panels have held that a respondent demonstrated bad faith pursuant to Policy ¶ 4(a)(iii) where the respondent was well-aware of the complainant’s mark at the time the disputed domain name was registered. See Yahoo! Inc. v. Butler, FA 744444 (Forum Aug. 17, 2006) (finding bad faith where the respondent was “well-aware” of the complainant’s YAHOO! mark at the time of registration). Accordingly, the Panel finds that Respondent registered the disputed domain name with actual knowledge of Complainant’s mark, thereby violating Policy ¶ 4(a)(iii).
Complainant has proved this element.
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is ORDERED that the <lloydirvinrapetruth.com> domain name be TRANSFERRED from Respondent to Complainant.
__________________________________________________________________
Hon. Karl V. Fink (Ret.), Panelist
Dated: July 1, 2016
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