Arris Enterprises LLC v. Carolina Rodrigues / Fundacion Comercio Electronico
Claim Number: FA2210002016929
Complainant is Arris Enterprises LLC (“Complainant”), represented by William Schultz of Merchant & Gould, P.C., Minnesota. Respondent is Carolina Rodrigues / Fundacion Comercio Electronico (“Respondent”), International.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <cloudruckuswireless.com>, registered with GoDaddy.com, LLC.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Richard Hill as Panelist.
Complainant submitted a Complaint to Forum electronically on October 20, 2022; Forum received payment on October 20, 2022.
On October 21, 2022, GoDaddy.com, LLC confirmed by e-mail to Forum that the <cloudruckuswireless.com> domain name is 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 October 24, 2022, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 14, 2022 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@cloudruckuswireless.com. Also on October 24, 2022, 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, Forum transmitted to the parties a Notification of Respondent Default.
On November 17, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Richard Hill as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that 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, 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 states that Ruckus Networks (formerly known as Ruckus Wireless) started in 2002 with a focus on in-home IPTV content distribution over wireless networks. Ruckus designed an adaptive directional antenna technology, which was sold to other manufacturers to include in their products. Ruckus offers WiFi products such as indoor and outdoor access points, which have directional antenna technology and adjust to changes in radio frequency. Complainant acquired Ruckus in 2017. Complainant has extensively used and made known its use of the RUCKUS mark in association with a wide range of products and services at least as early as 2005. Complainant has rights in the RUCKUS mark through its registration in the United States in 2013.
Complainant alleges that the disputed domain name is confusingly similar to its RUCKUS mark, as it incorporates the mark in its entirety and merely adds the descriptive terms “cloud” and “wireless”, together with the “.com” generic top-level domain (“gTLD”). Complainant cites UDRP precedents to support its position.
According to Complainant, Respondent lacks rights or legitimate interests in the disputed domain name, as Respondent is not commonly known by the disputed domain name, Complainant is not associated with Respondent, and has not authorized, licensed, or otherwise given permission for Respondent to use its mark. There is also no offering of a bona fide offering of goods or services or legitimate noncommercial or fair use of the disputed domain name because it resolves to a website that displays pay-per-click advertising links to competing services. Complainant cites UDRP precedents to support its position.
According to Complainant, Respondent registered and is using the disputed domain name in bad faith. The disputed domain name is used to disrupt Complainant’s business by diverting customers and offering competing services for commercial gain. Respondent has engaged in a pattern of bad faith registration and use of domain names. Respondent had actual knowledge of Complainant’s trademark rights in the RUCKUS mark. Complainant cites UDRP precedents to support its position.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns rights in the mark RUCKUS dating back to 2013 and uses it to provide wireless and cloud services.
The disputed domain name was registered in 2022.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
The disputed domain name resolves to a websites that displays pay-per-click advertising links to competing services. Respondent has engaged in a pattern of bad faith registration and use.
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”).
The disputed domain name incorporates Complainant’s mark in its entirety and merely adds the descriptive terms “cloud” and “wireless”, together with the “.com” generic top-level domain (“gTLD”). This does not distinguish the mark from the domain name under Policy ¶ 4(a)(i). See Bloomberg Finance L.P. v. Nexperian Holding Limited, FA 1782013 (Forum June 4, 2018) (“Where a relevant trademark is recognizable within a disputed domain name, the addition of other terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) does not prevent a finding of confusing similarity under the first element.”); see also Vanguard Group Inc. v. Proven Fin. Solutions, FA 572937 (Forum Nov. 18, 2005) (holding that the addition of both the word “advisors” and the gTLD “.com” did not sufficiently alter the disputed domain name to negate a finding of confusing similarity under Policy ¶ 4(a)(i)). Therefore the Panel finds that the disputed domain name is confusingly similar to Complainant’s mark under Policy ¶ 4(a)(i).
Complainant has not licensed or otherwise authorized Respondent to use its mark. Respondent is not commonly known by the disputed domain name: under Policy ¶ 4(c)(ii), WHOIS information may be used to determine whether a Respondent is commonly known by the disputed domain name. See Chevron Intellectual Property LLC v. Fred Wallace, FA1506001626022 (Forum July 27, 2015) (finding that the respondent was not commonly known by the <chevron-europe.com> domain name under Policy ¶ 4(c)(ii), as the WHOIS information named “Fred Wallace” as registrant of the disputed domain name). Here, the WHOIS information for the disputed domain name lists the registrant as “Carolina Rodrigues / Fundacion Comercio Electronico”. Therefore the Panel finds that Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii).
The disputed domain name resolves to a website that displays pay-per-click advertising links to competing services. Previous Panels have found that competing hyperlinks, offers of competing services, and pay-per-click links are not a bona fide or legitimate noncommercial or fair use of a disputed domain name. See Ashley Furniture Industries, Inc. v. domain admin / private registrations aktien gesellschaft, FA1506001626253 (Forum July 29, 2015) (“Respondent is using the disputed domain name to resolve to a web page containing advertising links to products that compete with those of Complainant. The Panel finds that this does not constitute a bona fide offering or a legitimate noncommercial or fair use.”); see also STRATEGIC OUTSOURCING SERVICES PVT LTD, FA 1647718 (Forum Jan. 4, 2016) (finding that the disputed domain purports to offer for sale goods and services in the field of electronic marketing, which directly overlap with the services covered by Complainant’s registrations and offered by Complainant online, and therefore Respondent does not have rights or legitimate interests through its competing use); see also Insomniac Holdings, LLC v. Mark Daniels, FA 1735969 (Forum July 15, 2017) (”Respondent’s use of <edcorlando.xyz> also does not qualify as a bona fide offering… the <edcorlando.xyz> domain name resolves to a site containing pay-per-click hyperlinks and advertisements… Since these kinds of advertisements generate revenue for the holder of a domain name, they cannot be noncommercial; further, they do not qualify as a bona fide offering.”). Thus the Panel finds that Respondent fails to use the disputed domain name to make a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶4(c)(i) or (iii). And the Panel finds that Complainant does not have rights or legitimate interests in the disputed domain name.
Respondent (who did not reply to Complainant’s contentions) has not presented any plausible explanation for its use of Complainant’s mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain name.
Indeed, as already noted, the disputed domain name resolves to a website that displays pay-per-click advertising links to competing services. This is evidence of bad faith registration and use under the Policy. See Xylem Inc. and Xylem IP Holdings LLC v. YinSi BaoHu YiKaiQi, FA1504001612750 (Forum May 13, 2015) (“The Panel agrees that Respondent’s use of the website to display products similar to Complainant’s, imputes intent to attract Internet users for commercial gain, and finds bad faith per Policy ¶ 4(b)(iv).”); see also Health Republic Insurance Company v. Above.com Legal, FA1506001622088 (Forum July 10, 2015) (“The use of a domain name’s resolving website to host links to competitors of a complainant shows intent to disrupt that complainant’s business, thereby showing bad faith in use and registration under Policy ¶ 4(b)(iii).”); see also Zynex Medical, Inc. v. New Ventures Services, Corp, FA 1788042 (Forum July 2, 2018) (“The resolving webpage [] appears to display [competing] links such as “Electrical Stimulation” and “Physical Therapy Software.” Accordingly, the Panel agrees that Respondent disrupts Complainant’s business and attempted to commercially benefit off Complainant’s mark in bad faith under Policy ¶¶ 4(b)(iii) & (iv).”). Thus the Panel finds bad faith use and registration under Policy ¶¶ 4(b)(iii) and (iv).
Further, Complainant provides evidence showing that Respondent has been found to have registered and used domain names in bad faith in several prior UDRP cases. This establishes a pattern of bad faith registration and use under the Policy. See Webster Financial Corporation and Webster Bank, National Association v. Above.com Domain Privacy, FA1209001464477 (Forum Nov. 30, 2012) (finding where the record reflected that the respondent had been a respondent in other UDRP proceedings in which it was ordered to transfer disputed domain names to various complainants established a pattern of bad faith registration and use of domain names and stood as evidence of bad faith in the registration and use of domain names under Policy ¶ 4(b)(ii)); see also DIRECTV, LLC v. michal restl c/o Dynadot, FA 1788826 (Forum July 5, 2018) (“The record contains evidence of Respondent’s previous eleven UDRP actions, all of which resulted in the transfer of the domain names, thus establishing bad faith per Policy ¶ 4(b)(ii).”); see also Philip Morris USA Inc. v. RapidClic / VAUCLIN Olivier, FA1520008 (Forum Nov. 7, 2013) (respondent’s registration of multiple infringing domain names established a pattern of bad faith registration and use under Policy ¶ 4(b)(ii)). Thus the Panel finds that Respondent registered and uses the disputed domain names in bad faith per Policy ¶ 4(b)(ii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <cloudruckuswireless.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: November 17, 2022
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page