MINDTREE LIMITED v. Bruce Mole
Claim Number: FA1607001684535
Complainant is MINDTREE LIMITED ("Complainant"), represented by N.V. Saisunder of Eshwars House of Corporate and IPR Laws, India. Respondent is Bruce Mole ("Respondent"), Massachusetts, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <mindtree.us>, 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.
David E. Sorkin as Panelist.
Complainant submitted a Complaint to the Forum electronically on July 20, 2016; the Forum received payment on July 27, 2016.
On July 21, 2016, Dynadot LLC confirmed by email to the Forum that the <mindtree.us> domain name is registered with Dynadot LLC and that Respondent is the current registrant of the name. 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 the U.S. Department of Commerce's usTLD Dispute Resolution Policy (the "Policy").
On July 29, 2016, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 18, 2016 by which Respondent could file a Response to the Complaint, via email to all entities and persons listed on Respondent's registration as technical, administrative, and billing contacts, and to postmaster@mindtree.us. Also on July 29, 2016, the Written Notice of the Complaint, notifying Respondent of the email 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 29, 2016, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed David E. Sorkin 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 the usTLD 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 usTLD Policy, usTLD 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 provides information technology consulting and other services in India, the United States, and other countries. Complainant has more than 56,000 shareholders worldwide, and has offices in several U.S. states. Complainant has used the MINDTREE mark in connection with its services continuously since 1997. The MINDTREE mark is registered in the U.S., India, and elsewhere, and Complainant asserts that the mark is well known worldwide.
The disputed domain name <mindtree.us> was registered in 2010. It resolves to a website comprised entirely of pay-per-click links, with a link to a page soliciting purchase offers for the domain name. Complainant states that MINDTREE is a coined mark; that Complainant has no relationship with Respondent, and has not licensed or otherwise permitted Respondent to use the mark; and that Respondent is not commonly known by the disputed domain name. Complainant states further that it contacted Respondent seeking a transfer of the domain name, and that Respondent replied by offering to sell the domain name for US $6,000 and subsequently $2,999. On these grounds Complainant contends that the disputed domain name is identical or confusingly similar to a mark in which Complainant has rights; that Respondent has no rights or legitimate interests in respect of the disputed domain; and that the disputed domain name was registered and is being used in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that the disputed domain name is identical to a mark in which Complainant has rights; that Respondent lacks rights or legitimate interests in respect of the disputed domain name; and that the disputed domain name was registered or 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 usTLD 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 or is being used in bad faith.
Given the similarity between the Uniform Domain Name Dispute Resolution Policy ("UDRP") and the usTLD Policy, the Panel will draw upon decisions rendered under the UDRP as applicable in rendering its decision.
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 (Nat. Arb. 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.").
The disputed domain name corresponds to Complainant's MINDTREE mark, adding only the ".us" top-level domain, making it identical to Complainant's mark for purposes of paragraph 4(a)(i) of the Policy. See, e.g., Trustees of Boston College v. Mark Zuckerberg, FA 1563536 (Forum July 3, 2014) (finding <bostoncollege.us> identical to BOSTON COLLEGE); Tata Sons Ltd. v. US Citizen aka Sojan Pulickal, FA 545232 (Forum Oct. 11, 2005) (finding <tata.us> identical to TATA). The Panel so finds.
Under the Policy, the Complainant must first make a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain name, and then the burden shifts to the Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm't Commentaries, FA 741828 (Forum Aug. 18, 2006).
The disputed domain name corresponds to Complainant's well-known mark without authorization, and its sole apparent use is for a pay-per-click website. Such use does not give rise to rights or legitimate interests under the Policy. See L'Oréal v. Bruce Mole, FA 1435940 (Forum May 7, 2012); Accor v. Bruce Mole, FA 1435595 (Forum Apr. 30, 2012). Complainant has made a prima facie case that Respondent lacks rights and legitimate interests in the domain name, and Respondent has failed to come forward with any evidence of such rights or interests. Accordingly, the Panel finds that Complainant has sustained its burden of proving that Respondent lacks rights or legitimate interests in respect of the disputed domain name.
Finally, Complainant must show that the disputed domain name was registered or is being used in bad faith. Under paragraph 4(b)(i) of the usTLD Policy, bad faith may be shown by evidence that the domain name was acquired "primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the Complainant who is the owner of the trademark or service mark or to a competitor of that Complainant, for valuable consideration in excess of [Respondent's] documented out-of-pocket costs directly related to the domain name." Under paragraph 4(b)(iv), bad faith may be shown by evidence that "[b]y using the domain name, [Respondent] intentionally attempted to attract, for commercial gain, Internet users to [Respondent's] web site or other on-line location, by creating a likelihood of confusion with the Complainant's mark as to the source, sponsorship, affiliation, or endorsement of [Respondent's] web site or location or of a product or service on [Respondent's] web site or location."
Respondent is using a domain name that corresponds to Complainant's well-known mark for a website comprised of pay-per-click links and a solicitation for offers to purchase the domain name, and responded to Complainant's inquiries by offering to sell the domain name for amounts far in excess of Respondent's out-of-pocket costs. Under the circumstances, the Panel concludes that Respondent likely registered and is using the disputed domain name primarily to profit by attracting Internet users to its website by creating confusion with Complainant's mark, and secondarily to profit from a potential sale of the domain name to Complainant or one of its competitors. See L'Oréal v. Bruce Mole, supra (finding bad faith registration and use under similar circumstances). The Panel therefore finds the disputed domain name was registered or is being used in bad faith.
Having considered the three elements required under the usTLD Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <mindtree.us> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: August 30, 2016
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