Greyhorse Enterprises Inc. v. Domain Management / WebContents, Inc - This domain might be for sale on GoDaddy.com or Sedo.com
Claim Number: FA1708001743044
Complainant is Greyhorse Enterprises Inc. (“Complainant”), represented by Stewart L. Gitler of Welsh Flaxman & Gitler, Virginia, USA. Respondent is Domain Management / WebContents, Inc - This domain might be for sale on GoDaddy.com or Sedo.com (“Respondent”), Illinois, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <hailpro.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.
David A. Einhorn appointed as Panelist.
Complainant submitted a Complaint to the Forum electronically on August 4, 2017; the Forum received payment on August 4, 2017.
On August 07, 2017, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <hailpro.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 August 14, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 5, 2017 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@hailpro.com. Also on August 14, 2017, 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 8, 2017, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed David A. Einhorn 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 an automobile and vehicle repair service provider specializing in dent removal. Complainant uses its HAIL PRO mark to promote its business. Complainant registered the HAIL PRO mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 2,414,714, registered Dec. 19, 2000 and based upon first use on January 13, 2000). Respondent’s <hailpro.com> domain name is identical to Complainant’s mark because it includes the mark in its entirety.
Respondent does not have rights or legitimate interests in the <hailpro.com> domain name. Respondent is not commonly known by the disputed domain name, and it is not using the <hailpro.com> domain name in connection with any bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) and (iii). Instead, the domain name resolves to an inactive website. Additionally, Respondent opportunistically registered the <hailpro.com> domain name after Complainant inadvertently allowed its registration to lapse and offered to sell the domain name for an excessive price.
Respondent registered and is using the disputed domain name in bad faith. Respondent made an excessive offer to sell the domain name, used the domain name to resolve to an inactive website, and concealed its true identity by engaging a privacy service.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel notes that the <hailpro.com> domain name was originally registered on April 10, 2000.
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 contends it registered its HAIL PRO mark with the USPTO (Reg. No. 2,414,714, registered Dec. 19, 2000, based upon first use on January 13, 2000). Registration of a mark with a trademark authority, such as USPTO, confers rights in a mark. See T-Mobile USA Inc. dba MetroPCS v. Ryan G. Foo / PPA Media Services, FA 1627542 (Forum Aug. 9, 2015) (finding that Complainant had rights in the METROPCS mark through its registration with the United States Patent and Trademark Office). Thus, the Panel finds that Complainant has rights in the HAIL PRO mark under Policy ¶ 4(a)(i).
Complainant contends that Respondent’s <hailpro.com> domain name is identical to Complainant’s mark because it includes the mark in its entirety, eliminates the spacing and appends the gTLD “.com”. A disputed domain name is identical to a mark when spacing is eliminated and a gTLD is appended to the fully incorporated mark.
As such, the Panel holds that Respondent’s <hailpro.com> domain name is identical to Complainant’s mark.
Complainant asserts that Respondent does not have rights or legitimate interests in the <hailpro.com> domain name. A respondent lacks rights and legitimate interests in a disputed domain name when it is not commonly known by the domain name. See Broadcom Corp. v. Intellifone Corp., FA 96356 (Forum Feb. 5, 2001) (finding no rights or legitimate interests because the respondent was not commonly known by the disputed domain name or using the domain name in connection with a legitimate or fair use). When a respondent fails to submit evidence to the contrary, the disputed domain name’s WHOIS information may be used to determine the name by which a respondent is commonly known. See Buff Exteriors, LLC v. Gregg Buffington, FA 1691787 (Forum Oct. 17, 2016) (holding that, when a respondent fails to submit additional evidence, the relevant WHOIS record may determine the name by which respondent is commonly known). The <hailpro.com> domain name’s WHOIS information of record lists privacy services, “Registration Private” and “Domain Management”. A respondent is not commonly known by a domain name when the disputed domain name’s WHOIS information merely lists a privacy service and respondent fails to present any evidence proving otherwise. See CheapCaribbean.com, Inc. v. Moniker Privacy Services, FA 1589962 (Forum Jan. 1, 2015) (“The Panel notes that the WHOIS information merely lists a privacy service as a registrant. In light of Respondent’s failure to provide any evidence to the contrary, the Panel finds there is no basis to find Respondent is commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii).”). As such, the Panel holds that Respondent is not commonly known by the disputed domain name.
Complainant alleges, and this Panel finds, that Respondent lacks rights and legitimate interests in the <hailpro.com> domain name because Respondent registered the domain name opportunistically after an employee of Complainant inadvertently failed to renew Complainant’s registration. See Clark v. HiNet, Inc., FA 405057 (Forum Mar. 4, 2005) (finding that the respondent lacked rights and legitimate interests in the domain name because it failed to respond to the complaint and it “opportunistically” registered the domain name when the complainant inadvertently allowed the registration to lapse).
Thus, Complainant has also satisfied Policy ¶ 4(a)(ii).
Registration and Use in Bad Faith
Complainant asserts that Respondent’s use of a privacy shield to disguise its identity is evidence of bad faith. Efforts to conceal the true identity of a domain name registrant is evidence of bad faith, registration and use. See Medco Health Solutions, Inc. v. Whois Privacy Protection Service, Inc., D2004-0453 (WIPO Aug. 25, 2004) (holding that the respondent’s efforts to disguise its true identity by using the privacy protection feature of the Registrar was an example of bad faith conduct). Also, the fact that Complainant’s mark was incorporated in Respondent’s domain name in its entirety is further evidence of bad faith registration.
Thus, Complainant has also satisfied Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <hailpro.com> domain name be TRANSFERRED from Respondent to Complainant.
David A. Einhorn, Panelist
Dated: September 20, 2017
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