Logitech Europe S.A. v. Domain Administrator / See PrivacyGuardian.org
Claim Number: FA1907001853970
Complainant is Logitech Europe S.A. (“Complainant”), represented by Christopher M. Dolan of Barnes & Thornburg LLP, Illinois, USA. Respondent is Domain Administrator / See PrivacyGuardian.org (“Respondent”), Arizona, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <blueyeti.online> (‘the Domain Name’), registered with NameSilo, LLC.
The undersigned certifies that she has acted independently and impartially and to the best of her knowledge has no known conflict in serving as Panelist in this proceeding.
Dawn Osborne as Panelist.
Complainant submitted a Complaint to the Forum electronically on July 25, 2019; the Forum received payment on July 25, 2019.
On July 26, 2019, NameSilo, LLC confirmed by e-mail to the Forum that the <blueyeti.online> domain name is registered with NameSilo, LLC and that Respondent is the current registrant of the name. NameSilo, LLC has verified that Respondent is bound by the NameSilo, 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 26, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 15, 2019 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@blueyeti.online. Also on July 26, 2019, 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 19, 2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Dawn Osborne 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
The Complainant’s contentions can be summarized as follows:
The Complainant is the owner of, inter alia, the mark BLUE registered in the USA with first use recorded as 1989 and the mark YETI registered in the EU since 2018, both for electronic goods including microphones.
The Domain Name registered in 2019 is confusingly similar to the Complainant’s marks consisting only of those marks and the gTLD “.online.”
Respondent has no rights or legitimate interests in the Domain Name, is not commonly known by it and is not authorized by the Complainant.
The Domain Name points to a commercial web site which copies material from the Complainant’s web site and is designed to impersonate the Complainant and deceive Internet users. This is not a bona fide offering of goods or services or a legitimate noncommercial or fair use. It is registration and use in bad faith designed to disrupt the Complainant’s business and attract Internet users for commercial gain. The site is also collecting financial details of customers and has given false contact details on the WHOIS database using the name of a third party company that said they are also victim of fraud and have no connection with the site attached to the Domain Name.
The copying of material from the Complainant’s web site and the use of its marks and logo shows the Respondent had actual knowledge of the Complainant and its rights.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Complainant is the owner of, inter alia, the mark BLUE registered in the USA with first use recorded as 1989 and the mark YETI registered in the EU since 2018, both for electronic goods including microphones.
The Domain Name registered in 2019 has been pointed to a web site which purports to be an official web site of the Complainant using material copied from its web site and its marks and logo.
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 set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
Identical or Confusingly Similar
The Domain Name consists of the Complainant’s BLUE mark (registered, inter alia, in the USA for microphones with first use recorded as 1989), the Complainant’s YETI mark (registered, inter alia, in the EU for microphones registered in 2018) and the gTLD “.online.” Combining two of a complainant’s marks in a domain name does not prevent confusing similarity between the domain name and each of those marks. See Textron Innovations Inc. v. Sheng Liang / Sarawina, FA 1622906 (Forum July 20, 2015) (finding confusing similarity under Policy 4(a)(i) where Respondent’s <greenleetextron.com> domain name merely combined Complainant’s TEXTRON and GREENLEE marks and added the “.com” generic top-level domain suffix.).
The gTLD “.online” does not serve to distinguish the Domain Name from the Complainant’s mark. See Red Hat Inc. v. Haecke, FA 726010 (Forum July 24, 2006) (concluding that the redhat.org domain name is identical to the complainant's red hat mark because the mere addition of the gTLD was insufficient to differentiate the disputed domain name from the mark).
Accordingly, the Panel holds that the Domain Name is confusingly similar for the purpose to marks in which the Complainant has rights.
Rights or Legitimate Interests
The Complainant has not authorized the use of its mark. There is no evidence or reason to suggest the Respondent is commonly known by the Domain Name.
The use of the Domain Name is commercial and so cannot be legitimate non-commercial use.
The web site which is or has been attached to the Domain Name used the Complainant's logo and copies material from the Complainant’s web site strongly suggesting that there is a commercial connection with the Complainant when there is not. The Panel finds this use is deceptive and passing off. As such, it cannot amount to the bona fide offering of goods and services or fair use. See iFinex Inc. v. Yuri Heifetz/Genie-Solution, FA 1789385 (Forum July 9, 2018) (holding that the respondent’s mimicking the complainant’s web site in order to cause existing or potential customers of the Complainant’s to believe they are dealing with the complainant is prima facie evidence of the respondent’s lack of rights and legitimate interests in the disputed domain name).
As such, the Panelist finds that the Respondent does not have rights or a legitimate interest in the Domain Name and that the Complainant has satisfied the second limb of the Policy.
Registration and Use in Bad Faith
In the opinion of the Panelist, the use made of the Domain Name in relation to the Respondent’s site is confusing and disruptive in that visitors to that site might reasonably believe it is connected to or approved by the Complainant as the Complainant’s trademarks, official logo and material from the Complainant’s web site was used without permission. The use of the Complainant's logo and material from its web site on the Respondent’s sites shows that the Respondent is aware of the Complainant and its business. Accordingly, the Panel holds that the Respondent has intentionally attempted to attract for commercial gain Internet users to its websites by creating a likelihood of confusion with the Complainant's trademarks as to the source, sponsorship, affiliation or endorsement of the web sites likely to disrupt the business of the Complainant. See Allianz of AM. Corp v. Bond, FA 680624 (Forum June 2, 2006) (finding bad faith registration and use where the respondent was diverting Internet users searching for the complainant to its own website).
As such, the Panelist believes that the Complainant has made out its case that the Domain Name was registered and used in bad faith and has satisfied the third limb of the Policy under para 4(b)(iv) and 4(b)(iii). There is no need to consider further grounds of bad faith.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <blueyeti.online> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: August 20, 2019
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