Flowhaven Oy v. Brainbase Inc. / Nate Cavanaugh
Claim Number: FA2002001883906
Complainant is Flowhaven Oy (“Complainant”), represented by Paul A. McClean of Greeberg Traurig, LLP, California, United States. Respondent is Brainbase Inc. / Nate Cavanaugh (“Respondent”), Delaware, United States.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <flowhaven.us>, registered with 1API GmbH.
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 February 19, 2020; the Forum received payment on February 19, 2020.
On February 21, 2020, 1API GmbH confirmed by e-mail to the Forum that the <flowhaven.us> domain name is registered with 1API GmbH and that Respondent is the current registrant of the name. 1API GmbH has verified that Respondent is bound by the 1API GmbH 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 February 24, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 16, 2020 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@flowhaven.us. Also on February 24, 2020, 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 March 20, 2020, 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 to the usTLD Dispute Resolution Policy (“Rules”). Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the usTLD Policy, usTLD Rules, the National Arbitration 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 in the business of brand commodification management software and brand-licensing software. Complainant has rights in the FLOWHAVEN mark through its registration with the United States Patent and Trademark Office (“USPTO”) and European Union Intellectual Property Office (EUIPO) (USPTO - Reg. No. 5,735,966, registered Apr. 30, 2019; EUIPO – Reg. No. 016495541, registered July 26, 2017). Respondent’s <flowhaven.co> domain name is identical to Complainant’s FLOWHAVEN mark. Respondent incorporates the mark in its entirety and only adds the “.co” top-level domain (“TLD”).
Respondent lacks rights or legitimate interests in the <flowhaven.co> domain name, as Respondent is not commonly known by the disputed domain name, nor did Complainant authorize Respondent to use the mark in any way.
Respondent registered and used the <flowhaven.co> domain name in bad faith as Respondent’s domain name redirects internet users to Respondent’s competing webpage that gives the appearance of affiliation with Complainant. Respondent had actual knowledge of Complainant’s rights in the FLOWHAVEN mark, as Respondent is a competitor and knew of Complainant.
B. Respondent
Respondent failed to submit a Response in this proceeding.
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 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 UDRP precedent 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 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 and/or Confusingly Similar
Complainant claims to have rights in the FLOWHAVEN mark through its registration with the USPTO and EUIPO. Registration of a mark with multiple trademark authorities is sufficient to establish rights in a mark per Policy ¶ 4(a)(i). See Alibaba Group Holding Limited v. YINGFENG WANG, FA 1568531 (Forum Aug. 21, 2014) (“Complainant has rights in the ALIBABA mark under the Policy through registration with trademark authorities in numerous countries around the world.”). Here, Complainant has provided the Panel with a copy of its USPTO and EUIPO registrations for the FLOWHAVEN mark (USPTO - Reg. No. 5,735,966, registered Apr. 30, 2019; EUIPO – Reg. No. 016495541, registered July 26, 2017). Therefore, the Panel finds that Complainant has adequately shown rights in the FLOWHAVEN mark per Policy ¶ 4(a)(i).
Complainant argues that Respondent’s <flowhaven.us> domain name is identical to Complainant’s FLOWHAVEN mark. Registration of a domain name that incorporates a mark in its entirety and adds a TLD does not distinguish the domain name from the mark per Policy ¶ 4(a)(i). See Dell Inc. v. Protection of Private Person / Privacy Protection, FA 1681432 (Forum Aug. 1, 2016) (“A TLD (whether a gTLD, sTLD or ccTLD) is disregarded under a Policy ¶ 4(a)(i) analysis because domain name syntax requires TLDs.). Here, Complainant argues that Respondent incorporates the mark in its entirety and only adds the “.us” TLD. Therefore, the Panel finds that Respondent’s domain name is identical to Complainant’s FLOWHAVEN mark per Policy ¶ 4(a)(i).
The Panel finds that there is nothing in the available evidence which indicates that Respondent has rights in a mark identical to the disputed domain name, which would serve to satisfy Policy ¶ 4(c)(i). See Pepsico, Inc. v. Becky, FA 117014 (Forum Sept. 3, 2002) (holding that because the respondent did not own any trademarks or service marks reflecting the <pepsicola.us> domain name, it had no rights or legitimate interests pursuant to Policy ¶ 4(c)(i)). Therefore, this Panel concludes that Respondent has failed Policy ¶ 4(c)(i).
Complainant argues Respondent lacks rights or legitimate interest in the <flowhaven.us> domain name as Respondent is not commonly known by the disputed domain name nor has Respondent been given license or consent to use the FLOWHAVEN mark or register domain names using Complainant’s mark. Where a response is lacking, WHOIS information may be used to determine whether a respondent is commonly known by the disputed domain name under Policy ¶ 4(c)(iii). See Amazon Technologies, Inc. v. LY Ta, FA 1789106 (Forum June 21, 2018) (concluding a respondent has no rights or legitimate interests in a disputed domain name where the complainant asserted it did not authorize the respondent to use the mark, and the relevant WHOIS information indicated the respondent is not commonly known by the domain name). Additionally, lack of authorization to use a complainant’s mark may indicate that the respondent is not commonly known by the disputed domain name. See Emerson Electric Co. v. golden humble / golden globals, FA 1787128 (Forum June 11, 2018) (“lack of evidence in the record to indicate a respondent is authorized to use [the] complainant’s mark may support a finding that [the] respondent does not have rights or legitimate interests in the disputed domain name per Policy ¶ 4(c)(ii)”). The WHOIS information for the disputed domain name lists the registrant as “Brainbase Inc./Nate Cavanaugh” and there is no other evidence to suggest that Respondent was authorized to use the FLOWHAVEN mark or was commonly known by the disputed domain name. Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(iii).
Thus, Respondent has also satisfied Policy ¶ 4(a)(ii).
Complainant argues that Respondent registered and used the <flowhaven.us> domain name in bad faith as Respondent redirects internet users to a competing webpage. Use of a disputed domain name to resolve to a webpage of a competitor may be evidence of bad faith per Policy ¶ 4(b)(iii). See ZIH Corp. v. ou yang lin q, FA1761403 (Forum Dec. 29, 2017) (finding bad faith where the respondent used the infringing domain name to disrupt the complainant’s business by diverting Internet users from the complainant’s website to the respondent’s website where it offered competing printer products). Here, Complainant has provided screenshots of Respondent’s resolving webpage which show Respondent offering products and services that compete with Complainant. Therefore, the Panel finds that Respondent registered and used the disputed domain name in bad faith per Policy ¶ 4(b)(iii).
Complainant argues that Respondent had knowledge of Complainant’s rights in the FLOWHAVEN mark at the time of registering the <flowhaven.us> domain name. See iFinex Inc. v. xu shuaiwei, FA 1760249 (Forum January 1, 2018) (“Respondent’s prior knowledge is evident from Respondent’s use of its trademark laden domain name to direct internet traffic to a website which is a direct competitor of Complainant”). As such, the Panel determines that Respondent did have actual knowledge of Complainant’s right in its mark, which supports a finding of bad faith under Policy ¶ 4(a)(iii).
Thus, Complainant has also satisfied Policy ¶ 4(a)(iii).
Having established all three elements required under the usTLD Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <flowhaven.us> domain name BE TRANSFERRED from Respondent to Complainant.
David A. Einhorn, Panelist
Dated: April 3, 2020
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