CABLExpress Corporation v. yoel peled
Claim Number: FA1606001681645
Complainant is CABLExpress Corporation (“Complainant”), represented by Philip I. Frankel of Bond, Schoeneck & King, PLLC, New York, USA. Respondent is yoel peled (“Respondent”), New York, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <cablesxpress.com>, registered with GoDaddy.com, LLC.
The undersigned certifies he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.
Houston Putnam Lowry, Chartered Arbitrator, as Panelist.
Complainant submitted a Complaint to the Forum electronically on June 28, 2016; the Forum received payment on June 28, 2016.
On June 29, 2016, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <cablesxpress.com> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the names. 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 July 5, 2016, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 25, 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@cablesxpress.com. Also on July 5, 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 August 2, 2016, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Houston Putnam Lowry, Chartered Arbitrator, 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 the domain name be transferred from Respondent to Complainant.
A. Complainant
Trademark/Service Mark Information: UDRP Rule 3(b)(viii).
[i.] The Complainant owns the following trademarks:
· CABLEXPRESS CORPORATION® (U.S. Trademark Registration No. 1,619,625): computer cables (first used at least as early as October 30, 1981).
· CABLEXPRESS TECHNOLOGIES® (U.S. Trademark Registration No. 2,818,619): installation services of computer networks and hardware (first used at least as early as February 7, 2000; the registration for this mark lapsed on October 8, 2010).
· CABLEXPRESS® (U.S. Trademark Registration No. 2,869,564): new and refurbished computer connectivity hardware, namely cables, cable assemblies, wiring hardware, and mainframe data center hardware, computer network hardware, namely, servers, LAN adaptors, switch boxes, power supplying, hardware, transceivers, wireless network equipment, bridges, routers, hubs, adaptor cards, memory hardware, modems, and commuter communication hardware; installation, maintenance, cleaning, refurbishing and repair of computer hardware, cables, network hardware, and communication hardware; technical computer support services, namely testing of computer equipment and hardware; technical computer support, consulting and configuration services for cables, testing equipment, mainframe data center hardware, computer hardware, connectors, wiring hardware, computer storage hardware, and network and communication computer hardware (first used at least as early as October 31, 1981).
· CABLEXPRESS TECHNOLOGIES® (U.S. Trademark Registration No. 2,961,985): new and refurbished computer connectivity products, namely, cables, cable assemblies, wiring hardware, mainframe data center hardware; computer network hardware, namely, servers, LAN adapters, switch boxes, power supplies, transceivers, wireless network equipment in the nature of wireless computer peripherals, bridges, routers, hubs, adapter cards, memory, modems and communication computer hardware; testing for others of used products in the nature of computer equipment and accessories to ensure operational viability; technical support, namely, monitoring of network systems, including cables, computer testing equipment, mainframe data center products, computer products, connectors, wiring systems, computer memory storage products and network and communication equipment, and consulting and configuration services therefor (first used at least as early as February 1, 2000; the registration for this mark lapsed on September 28, 2012).
· CABLEXPRESS® (U.S. Trademark Registration No. 3,255,856): new and refurbished computer connectivity hardware, namely cables, cable assemblies, wiring systems and mainframe data center hardware (first used at least as early as December 2002).
[ii.] CABLExpress Corporation is a corporation duly organized and existing under the laws of the State of New York since 1978. CABLExpress Corporation has been using the CABLEXPRESS® brand for almost 35 years to promote its new and refurbished computer cables and other computer-related goods and services. The CABLEXPRESS® brand comprises a family of closely related trademarks containing the word “CABLEXPRESS,” as well as a family of websites containing the word “CABLEXPRESS.”
[iii.] CABLExpress Corporation’s primary website is located at <<www.cablexpress.com>>. The CABLExpress Corporation second- level domain has gained recognition in the minds of consumers as a mark, and is understood by consumers to be a member of the CABLExpress® brand. Since the <<www.cablexpress.com>> domain was established 20 years ago, it has generated millions of dollars in sales for CABLExpress Corporation.
[iv.] CABLExpress Corporation uses the CABLEXPRESS® brand in conjunction with new and refurbished computer cables, as well as numerous other computer-related hardware and services. CABLExpress Corporation’s business is carried out throughout the United States and abroad through an extensive online catalog available through the <<www.cablexpress.com>> website.
FACTUAL AND LEGAL GROUNDS
[a.] This Complaint is based on the following factual and legal grounds:
[i] Complainant does business under CABLExpress Corporation and CXtec worldwide selling new and refurbished high-performance computer connectivity, hardware, and telecommunication products. It registered the domain name <<www.cablexpress.com>> on March 14, 1996. Complainant has promoted its goods and services under the CABLEXPRESS® mark at <<www.cablexpress.com>> since at least as early as 1996. While the content has been modified and updated, it has always provided its goods and services on its website.
[ii] On or about June 17, 2015, Respondent registered <<www.cablesxpress.com>> (the “Peled Domain Name”). Respondent uses its website to sell and promote goods that are identical to those associated with Complainant’s CABLEXPRESS® mark. Specimens from the Peled Domain Name site as it appeared on January 20, 2016 were obtained by the Wayback Machine (available at https://archive.org/web/).
[iii] On or before December 31, 2015, Complainant discovered the Peled Domain Name and sent a first cease and desist letter to Respondent to stop using the infringing domain. Complainant then had its attorneys send two additional cease and desist letters to Respondent’s company. Respondent failed to respond each time, but instead, upon information and belief, redirected his web content from the Peled Domain Name site to a recently registered <<www.cablesdirectonline.com>> domain (the “Buber Domain Name”) on or about February 1, 2016. The same cable content that was present at the Peled Domain Name site is now available at the Buber Domain Name site. Respondent has continued to maintain ownership of and use the Peled Domain Name. Further, upon information and belief, Respondent currently uses the Peled Domain Name to direct web traffic to the Buber Domain Name site. Complainant has taken this action to prevent further damage caused by Respondent’s actions and to retain ownership of the Peled Domain Name.
[iv] On or before December 31, 2015, when Complainant discovered the Peled Domain Name, Complainant viewed the Peled Domain Name website to find that it promoted a business entity named Cables Xpress. The address for Cables Xpress listed on the Peled Domain Name site is: 15 Brandywine Dr., Deer Park, NY 11729.
[v] Upon information and belief, Respondent, Yoel Peled, operates Cables Xpress under different aliases. For example, numerous sites list Jaxson Ortiz as the sole member of Cables Xpress. In addition, the Peled Domain Name is registered at the same address and contact information as the Buber Domain Name. Complainant also found the Cables Xpress Facebook page, showing a positive review written by a “Joel Peled”.
[vi] Upon information and belief, the registrant of the Buber Domain Name, is Dmitry Buber, is also a false alias for Yoel Peled and Jaxson Ortiz. The bogus address listed for Dmitry Buber is: 15 Brandywine Dr., Deer Park, NJ 11729. However, there is no city or town named “Deer Park” in New Jersey. Further, the email address listed for the alleged Dmitry Buber is: <<yoelpeled@mdycommunications.com>>.
[b.] The Peled Domain Name is confusingly similar to Complainant’s CABLEXPRESS® mark in the following ways: UDRP Rule 3(b)(ix)(1)
[i] Complainant’s trade name is CABLEXPRESS® and all of its goods have been continuously offered under that mark since at least as early as 1981. A prior UDRP decision has held that Complainant has established rights in its CABLEXPRESS® mark under Policy ¶4(a)(i) due to Complainant’s multiple trademark registrations with the USPTO for the mark. See Cablexpress Corp. v. 1800CableExpress, FA 1327523, (Nat. Arb. Forum July 8, 2010). Respondent’s Peled Domain Name is confusingly similar to Complainant’s CABLEXPRESS® mark because it completely incorporates Complainant’s mark and Complainant’s <<www.cablexpress.com>> domain. Respondent chose to use the same reference to “express” by removing the “e” as reflected in Complainant’s CABLEXPRESS® mark. Respondent’s Peled Domain Name has the insignificant addition of an extra “s” located within the mark in order to differentiate and secure the infringing domain.
[ii] Prior UDRP decisions have held that the addition of an extra letter to a mark, such as the extra “s” in the Peled Domain Name, does not avoid confusion with the mark. See, e.g., Bloomberg Finance L.P. v. NameNation.com, FA 1602548, (Nat. Arb. Forum Mar. 14, 2015) (“This Panel finds that the omission in the domain name of a single letter from the mark, that is, the letter “o,” results in confusing similarity”); Ancestry.com Operations, Inc. v. Dotzup.com Inc., FA 1311543, (Nat. Arb. Forum Apr. 20, 2010) (the addition of an extraneous letter ‘e’ and a generic top-level domain to the Complainant’s mark did not “sufficiently differentiate[] Respondent’s disputed domain names from Complainant’s mark.”); Hotwire, Inc v. Joe Spencer, FA 741902 (Nat. Arb. Forum Aug. 11, 2006) (“the addition of an extra letter to Complainant’s marks did not overcome the confusing similarity between the disputed domain names and the Complainant’s marks pursuant to Policy ¶4(a)(i).”); see also Victoria’s Secret v. Zuccarini, FA 95762 (Nat. Arb. Forum Nov. 18, 2000); Google, Inc. v. DktBot.org, FA 286993 (Nat. Arb. Forum Aug. 4, 2004).
[iii] In addition to an almost identical spelling, Complainant’s CABLEXPRESS® mark, as used in its domain name
<<www.cablexpress.com>>, and Respondent’s Peled Domain Name are phonetically the same. Prior UDRP decisions have held that the domain name at issue is confusingly similar to the mark where the domain name consists of the whole mark with only one minor spelling change and the domain name sounds phonetically identical to the mark. See, e.g., Macy’s, Inc. v. George Yam, FA 1488660, (Nat. Arb. Forum Apr. 9, 2013); John Middleton Co. v. Novacek Martin, FA 1331885, (Nat. Arb. Forum July 29, 2010).
[iv] Further, Respondent’s Peled Domain Name is confusingly similar because Respondent is using the Peled Domain Name in conjunction with a class of goods identical to those associated with Complainant’s CABLEXPRESS® mark and website.
[c.] Respondent has no rights or legitimate interests in respect of the domain name that is the subject of the complaint for at least the following reasons: UDRP Rule 3(b)(ix)(2)
[i] Respondent through various aliases, is using the Peled Domain Name, which varies only by one letter from Complainant’s registered CABLEXPRESS® mark, to generate revenue at the Peled Domain Name site by directing traffic directly to the Buber Domain Name site. Respondent is using Complainant’s CABLEXPRESS® mark to drive traffic to the Buber Domain Name site from those searching or otherwise wishing to find out about Complainant’s goods.
[ii] Respondent offers identical goods on the Buber Domain Name site. It is well-settled that Respondent has no rights or legitimate interests if he offers goods on the website that compete with the Complainant. See, e.g., Dollar Financial Group, Inc. v. Great American Credit, FA 0094994 (Nat. Arb. Forum July 18, 2000) (finding that the Respondent had no legitimate interest in a domain name that offered services which competed with the Complainant’s business); See Hewlett-Packard v. Full System, FA 94637 (Nat. Arb. Forum May 22, 2000) (finding that the Respondent had no legitimate interest in a domain name that was being used to compete with the Complainant’s e-mail services). Further, in a prior UDRP decision regarding Complainant’s CABLEXPRESS® mark, the Panel found that a “Respondent’s use of the confusingly similar disputed domain name to offer products that directly compete with Complainant’s products is not a bona fide offering of goods or services under Policy ¶4(c)(i) or a legitimate noncommercial or fair use of the disputed domain pursuant to Policy ¶4(c)(iii).” Cablexpress Corp. v. 1800CableExpress, FA 1327523, (Nat. Arb. Forum July 8, 2010). Therefore, Respondent is not making a legitimate noncommercial or fair use of the Peled Domain Name, without intent for commercial gain, is purposefully deceiving the public by confusingly directing consumers from the Peled Domain Name site, which is strikingly similar to Complainant’s mark, to the Buber Domain Name site, and is preventing consumers from locating Complainant’s 20-year old website.
[iii] Further, Respondent does not need to use the term “cablesxpress” to sell his competing goods. This is obvious since respondent purposely misspells XPRESS to intentionally copy the Complainant’s use. It is further evidenced by the fact that Respondent is now selling his competing goods using the Buber Domain Name. Respondent only chose to use the Peled Domain Name to trade off Complainant’s mark and goodwill.
[d.] The <<cablesexpress.com>> domain name registered and used by Respondent is in bad faith for at least the following reasons: UDRP Rule 3(b)(ix)(3)
[i] Complainant sent three letters, dated December 31, 2015, January 26, 2016 and March 10, 2016, to Respondent demanding Respondent cease and desist from any and all use of the labels “CABLES XPRESS” and “CABLE XPRESS”, any similar labels or marks, and to cede ownership of the Peled Domain Name. Respondent ignored the cease and desist letters and continued to maintain ownership of the Peled Domain Name. Sometime after receiving the cease and desist letter(s), Respondent directed all Internet traffic from the Peled Domain Name site to the Buber Domain Name site, a newly registered domain name. Thus, Respondent altered the content available at the Peled Domain Name by placing the content on the redirected Buber Domain Name site. Changing the content of a website after receiving a cease and desist letter is evidence that the domain is being used in bad faith. See Prestolite Electric, Inc. v. Domain Privacy Service FBO Registrant, FA 1535774 (Nat. Arb. Forum Jan. 8, 2014) (finding Respondent’s previous use of the disputed domain name and subsequent change of the content after receiving notice of the dispute is some evidence of bad faith); Google Inc. v. Tobec Acquisitions, FA 1296156 (Nat. Arb. Forum Jan. 15, 2010) (“The fact that Respondent changed the use of the disputed domain name after receiving notice from Complainant is evidence of bad faith under Policy ¶4(a)(iii).”); Multi Time Machine, Inc. v. Air Florida c/o Domain Admin, FA 1287689 (Nat. Arb. Forum Nov. 20, 2009) (finding bad faith when Respondent altered the content on the resolving website after receiving notice from Complainant).
[ii] Prior UDRP decisions have found bad faith where Respondent used Complainant’s mark to create a likelihood of confusion for commercial gain when Respondent is able to operate his business without the use of Complainant’s mark. See L’Oreal USA Creative, Inc. v. Arkle Internet Ltd., FA 95384 (Nat. Arb. Forum Sept. 18, 2000) (finding bad faith when Respondent had been selling its own equine related products on its website when it registered a domain name confusingly similar to Complainant’s mark shortly after a magazine article published with Complainant’s mark); see also Classic Metal Roofs, LLC v. Interlock Indus., Ltd., FA 724554 (Nat. Arb. Forum Aug. 1, 2006) (finding that Respondent registered and used Complainant’s domain name in bad faith by redirecting Internet users to Respondent’s competing website despite having its own domain name where it sells similar products and services).
[iii] Respondent uses the Peled Domain Name to drive traffic to the Buber Domain Name site from those searching or otherwise wishing to find out about CABLExpress Corporation’s goods. Using a domain name confusingly similar to a complainant’s mark to divert Internet traffic for commercial gain is evidence of bad faith. See Microsoft Corp. v. Morgun, FA 1491620 (Nat. Arb. Forum May 10, 2013) (holding that use by Respondent of his domain name to profit from diverting traffic to direct competitors of Complainant…is evidence of bad faith commercial disruption under Policy ¶4(b)(iii)); MySpace, Inc. v. Myspace Bot, FA 672161 (Nat. Arb. Forum May 19, 2006) (holding that the respondent registered and used the <myspacebot.com> domain name in bad faith by diverting Internet users seeking Complainant’s website to its own website for commercial gain because Respondent likely profited from this diversion scheme); see also T-Mobile USA, Inc. v. utahhealth, FA 697821 (Nat. Arb. Forum June 7, 2006) (holding that the registration and use of a domain name confusingly similar to Complainant’s mark to direct Internet traffic to a commercial “links page” in order to profit from click-through fees or other revenue sources constitutes bad faith under Policy ¶4(b)(iv)).
[iv] As further evidence of bad faith, upon information and belief, Respondent uses aliases to register the Peled Domain Name and the Buber Domain Name. Respondent registered the Peled Domain Name under the name Yoel Peled, which is a name differing by one letter from the Joel Peled that wrote a Facebook review for Cables Xpress. The only employee, manager and team member found to be connected to Cables Xpress is Jaxson Ortiz. When registering the Buber Domain Name, Respondent used the alias of Dmitry Buber, but entered his email address as <<yoelpeled@mdycommunications.com>>. In addition, Dmitry Buber’s address is purposely misleading because it is listed as Deer Park, New Jersey, a city which does not exist. However, the address is otherwise identical to that listed at 15 Brandywine Dr., Deer Park, New York on the Cables Xpress website and on the Peled Domain Name registration. This evidence further shows that Respondent attempted to mislead Complainant and consumers in bad faith by using the domains.
B. Respondent
Respondent failed to submit a Response in this proceeding.
(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.
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 Complainant prove the following three elements to obtain an order cancelling or transferring a domain name:
(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 registered the CABLEXPRESS mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 1,619,625, registered Oct. 30, 1990). The mark is used in connection with the sale of computer cables (and other related cables). Complainant has established rights under Policy ¶ 4(a)(i) by showing its mark was registered with any national authority (such as the USPTO). 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).”). Complainant has carried its burden of proof and demonstrated its rights to the mark under Policy ¶ 4(a)(i).
Complainant claims the <cablesxpress.com> domain name is confusingly similar to the CABLEXPRESS mark. The domain name adds the letter “s” along with the gTLD “.com.” A TLD (whether a gTLD, sTLD or ccTLD) is disregarded under a Policy ¶ 4(a)(i) analysis because domain name syntax requires TLDs. See Jerry Damson, Inc. v. Tex. Int’l Prop. Assocs., FA 916991 (Forum Apr. 10, 2007) (“The mere addition of a generic top-level domain (“gTLD”) “.com” does not serve to adequately distinguish the Domain Name from the mark.”). Adding a single letter to a domain name is almost always inconsequential under a Policy ¶ 4(a)(i) analysis. See PathAdvantage Associated v. VistaPrint Technologies Ltd, FA 1625731 (Forum July 23, 2015) (holding that the <pathadvantages.com> domain name was confusingly similar to the PATHADVANTAGE trademark because the domain name “merely adds the letter ‘s’ to Complainant’s mark”). In this case, the single letter is inconsequential for the purposes of distinguishing Respondent’s domain name from Complainant’s mark. The domain name is confusingly similar to Complainant’s mark.
The Panel finds Policy ¶ 4(a)(i) satisfied.
Complainant must first make a prima facie case 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 has 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 claims Respondent is not commonly known as the disputed domain name. “Yoel peled” is listed as the registrant of record for the disputed domain name. No organization is listed. Complainant has not given Respondent licensing rights which would allow him to use the CABLEXPRESS mark in domain names. The record is devoid of any evidence to indicate Respondent is either commonly known as the disputed domain name or in possession of licensing rights. Where the record lacks a foundation for finding a necessary fact under this element, the Panel will determine Respondent does not have rights or legitimate interests under Policy ¶ 4(c)(ii). See M. Shanken Commc’ns v. WORLDTRAVELERSONLINE.COM, FA 740335 (Forum Aug. 3, 2006) (finding that the respondent was not commonly known by the <cigaraficionada.com> domain name under Policy ¶4(c)(ii) based on the WHOIS information and other evidence in the record).
Complainant claims Respondent’s use of the disputed domain name fails to consist of a bona fide offering of goods or services or a legitimate noncommercial or fair use. The domain name is being used to market competing goods by forwarding to another domain name. This does not amount to a bona fide offering of goods or services nor a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) and (iii). See General Motors LLC v. MIKE LEE, FA 1659965 (Forum Mar. 10, 2016) (finding that “use of a domain to sell products and/or services that compete directly with a complainant’s business does not constitute a bona fide offering of goods or services pursuant to Policy ¶4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶4(c)(iii).”). Respondent has acquired no rights under Policy ¶¶ 4(c)(i) and (iii).
Furthermore, Respondent has not provided correct WHOIS information. This means Respondent has not publicly associated itself with the disputed domain name. Respondent cannot have acquired any rights to the disputed domain name simply by registering it because Respondent has done nothing to publicly associate itself with the disputed domain name.
The Panel finds Policy ¶ 4(a)(ii) satisfied.
Complainant claims Respondent has acted in bad faith under Policy ¶ 4(b)(iv) by attempting to profit from a likelihood of confusion. The domain name resolves to a webpage at another domain name that markets competing products. Internet users are likely to confuse Respondent’s website with Complainant’s trademark, creating a likelihood of confusion for profit. Bad faith under Policy ¶ 4(b)(iv) can be found where the domain name resolves to a webpage with competing products. 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.”). Respondent has registered and used the disputed domain name in bad faith under Policy ¶ 4(b)(iv).
The Panel has conducted a bit of research outside of the record in light of Complainant’s allegations (which have not been articulated as clearly as this Panel would have liked). Complainant claims Respondent has not given accurate WHOIS information. The <cablesxpress.com> domain forwards to a web site purportedly operated by Cables Direct Online (at least according to the web site) at cablesdirectonline.com. This domain name is registered to “dmitry Buber” (with the organization listed as “N/A”). There is no juridical entity known as “Cables Direct Online” in either New York or New Jersey. It seems clear false WHOIS information has been given. In a commercial context, this raises the rebuttable presumption Respondent has registered and used the disputed domain name in bad faith. Respondent has done nothing to rebut that presumption. Therefore, this Panel finds Respondent has registered and used the disputed domain name in bad faith.
The Panel finds Policy ¶ 4(a)(iii) satisfied.
Having established all three elements required under the ICANN Policy, the Panel concludes relief shall be GRANTED.
Accordingly, it is Ordered the <cablesxpress.com> domain name be TRANSFERRED from Respondent to Complainant.
Houston Putnam Lowry, Chartered Arbitrator, Panelist
Dated: Monday, August 15, 2016
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page