Freeman Capital Company v. Mike Bojesen / SourceOne Events
Claim Number: FA1608001688937
Complainant is Freeman Capital Company (“Complainant”), represented by Jason R. Fulmer of Gardere Wynne Sewell LLP, Texas, USA. Respondent is Mike Bojesen / SourceOne Events (“Respondent”), Illinois, USA.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <freeman.events> and <freemanco.events>, 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 August 11, 2016; the Forum received payment on August 12, 2016.
On August 12, 2016, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <freeman.events> and <freemanco.events> domain names are 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 August 12, 2016, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 1, 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@freeman.events, postmaster@freemanco.events. Also on August 12, 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 September 13, 2016, 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 names be transferred from Respondent to Complainant.
A. Complainant
Complainant has rights in the FREEMAN mark through its registration with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 2,645,625, registered Nov. 5, 2002). Respondent’s <freeman.events> domain name is identical to the FREEMAN mark, and the <freemanco.events> domain name is confusingly similar to the mark. Both domains contain the mark along with the suggestive top-level domain (“TLD”) “.events,” and the <freemanco.events> domain name also includes the term “co,” the abbreviation for the word “company.”
Respondent has no rights or legitimate interests in the domains. Respondent is not commonly known by the <freeman.events> and <freemanco.events> domain names as it is not affiliated with Complainant and the available WHOIS information identifies “Mike Bojesen” as Registrant. Further, Respondent fails to provide a bona fide offering of goods or services or a legitimate noncommercial or fair use because each domain redirects to Respondent’s own website, <sourceoneevents.com>, which it uses to compete with Complainant.
Respondent uses the <freeman.events> and <freemanco.events> domains in bad faith because they were intentionally designed to divert consumers seeking Complainant, toward Respondent’s competing website. Respondent registered the <freeman.events> and <freemanco.events> domains in bad faith because it did so with constructive or actual knowledge of Complainant’s rights in the FREEMAN mark, based upon the dates of registration relative to the use and registration of the mark, and through the direct reference to Complainant as a client of Respondent on the resolving website.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant is Freeman Capital Company of Dallas, TX, USA. Complainant is the owner of the domestic registration for the mark FREEMAN, and related marks, which it has continuously used since at least as early as 2002 in connection with its provision of integrated marketing goods and services. Complainant is also the owner of registrations for several domains including <freeman.com> and <freemanco.com>.
Respondent is Mike Bojesen / SourceOne Events, of Elmhurst, IL, USA. Respondent’s registrar’s address is listed as Scottsdale, AZ, USA. The Panel notes that the <freeman.events> domain name was created on or about July 11, 2014 and the <freemanco.events> domain name was created on or about July 17, 2014.
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 FREEMAN mark through its registration with the USPTO (Reg. No. 2,645,625, registered Nov. 5, 2002), which it uses for integrated marketing solutions for live engagements, expositions, conventions, and meetings. Complainant has provided evidence of this registration. The Panel here finds that Complainant holds rights in the FREEMAN mark. See T-Mobile USA, Inc. dba MetroPCS v. Ryan G Foo / PPA Media Services, FA 1627542 (Forum Aug. 9, 2015) (finding that Complainant has rights in the METROPCS mark through its registration with the United States Patent and Trademark Office.).
Complainant claims that Respondent’s <freeman.events> domain name is identical to the FREEMAN mark, and that the <freemanco.events> domain name is confusingly similar to the mark as both domains contain the mark along with the TLD “.events,” which Complainant urges is suggestive of the types of services Complainant offers under the Freeman mark. Further, Complainant argues that the <freemanco.events> domain name includes the term “co,” the abbreviation for the word “company.” The Panel here finds the <freeman.events> domain name identical, and the <freemanco.events> domain name confusingly similar, to the FREEMAN mark. See DD IP Holder LLC v. Phill Aspden, FA 1603215 (Forum Apr. 8, 2015) (finding that the disputed domain name <dunkin.coffee> is identical to Complainant's DUNKIN COFFEE registered mark, as gTLDs that reference goods or services offered under the registered mark may be taken into account); see also Microsoft Corporation v. Thong Tran Thanh, FA 1653187 (Forum Jan. 21, 2016) (determining that confusing similarity exist where [a disputed domain name] contains Complainant’s entire mark and differs only by the addition of a generic or descriptive phrase and top-level domain, the differences between the domain name and its contained trademark are insufficient to differentiate one from the other for the purposes of the Policy.).
Respondent makes no contentions with regards to Policy ¶ 4(a)(i).
Complainant has proven this element.
The Panel recognizes 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 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). Complainant has met this burden.
Complainant contends that Respondent is not commonly known by the <freeman.events> and <freemanco.events> domain names as it is not affiliated with Complainant and the available WHOIS information identifies “Mike Bojesen” as Registrant. Respondent has provided no evidence to suggest the contrary. The Panel here finds that Respondent is not commonly known by the <freeman.events> and <freemanco.events> domain names. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum Sept. 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark).
Complainant alleges that Respondent fails to use the <freeman.events> and <freemanco.events> domain names to provide a bona fide offering of goods or services or a legitimate noncommercial or fair use because each domain redirects to Respondent’s own website, <sourceoneevents.com>, which it uses to compete with Complainant. Complainant has provided screenshots of the resolving pages. The Panel finds Complainant’s evidence sufficient, and finds that Respondent fails to use the domains to provide a bona fide offering of goods or services or a legitimate noncommercial or fair use according to Policy ¶ 4(c)(i) and Policy ¶ 4(c)(iii). See Upwork Global Inc. v. Shoaib Malik, FA 1654759 (Forum Feb. 3, 2016) (finding that Complainant provides freelance talent services, and that Respondent competes with Complainant by promoting freelance talent services through the disputed domain’s resolving webpage, which is neither a bona fide offering of goods or services, nor is it a legitimate noncommercial or fair use).
Respondent makes no contentions with regards to Policy ¶ 4(a)(ii).
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.
Complainant has proven this element.
Complainant maintains that Respondent uses the <freeman.events> and <freemanco.events> domain names in bad faith because they were intentionally designed to divert consumers seeking Complainant toward Respondent’s competing website. Complainant has provided screenshots to demonstrate this diversion and competition. The Panel here finds that Respondent registered and uses the domain names in bad faith according to Policy ¶ 4(b)(iii). See Classic Metal Roofs, LLC v. Interlock Indus., Ltd., FA 724554 (Forum Aug. 1, 2006) (finding that the respondent registered and used the <classicmetalroofing.com> domain name in bad faith pursuant to Policy ¶ 4(b)(iii) by redirecting Internet users to the respondent’s competing website).
Respondent makes no contentions with regards to Policy ¶ 4(a)(iii).
Complainant has proven this element.
As 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 <freeman.events> and <freemanco.events> domain names be TRANSFERRED from Respondent to Complainant.
Darryl C. Wilson, Panelist
Dated: Sept. 27, 2016
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