DECISION

 

Abnormal Security Corporation v. Narendra Ghimire

Claim Number: FA2405002099733

 

PARTIES

Complainant is Abnormal Security Corporation ("Complainant"), represented by Britt Anderson of Perkins Coie LLP, California, USA. Respondent is Narendra Ghimire ("Respondent"), represented by Steve H. Lieberman of Greenberg & Lieberman, LLC, District of Columbia, USA.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <abnormal.ai>, registered with Deep Vision Architects.

 

PANEL

The undersigned certify that they have acted independently and impartially and to the best of their knowledge have no known conflict in serving as Panelists in this proceeding.

 

Michael Albert and The Honorable Neil Anthony Brown KC, as Panelists and David S. Safran as Chair.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to Forum electronically on May 29, 2024; Forum received payment on May 29, 2024.

 

On May 31, 2024, Deep Vision Architects confirmed by e-mail to Forum that the <abnormal.ai> domain name is registered with Deep Vision Architects and that Respondent is the current registrant of the name. Deep Vision Architects has verified that Respondent is bound by the Deep Vision Architects 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 June 3, 2024, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 28, 2024 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@abnormal.ai. Also on June 3, 2024, 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.

 

A timely Response was received and determined to be complete on June 27, 2024.

 

On July 1, 2024, Complainant filed an additional Statement and asked the Panel to exercise its discretion to consider that filing. The Panel exercises its discretion to accept and consider the statement and it has done so.

 

On July 3, 2024, pursuant to Respondent's request to have the dispute decided by a three-member Panel, Forum appointed Michael Albert and The Honorable Neil Anthony Brown KC as Panelists and David S. Safran as Chair.

 

On July 17, 2024 the Panel Ordered that the time within which the Panel should render its Decision be extended until July 31, 2024.

 

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.

 

RELIEF SOUGHT

Complainant requests that the domain name be transferred from Respondent to Complainant.

 

PRELIMINARY ISSUE: DOCTRINE OF LACHES

The Panel finds Laches not to be a factor in determining whether or not the domain name should be transferred or retained.

 

PARTIES' CONTENTIONS

A. Complainant

Complainant contends that it has rights in the trademark ABNORMAL and that the disputed domain name <abnormal.ai> is identical or confusingly similar to its trademark and that the .ai TLD should not be considered in evaluating this issue. Complainant also asserts that Respondent has no rights or legitimate interests in the domain name since Complainant, as senior user, did not consent to the Respondent's use of the domain name at issue, and that Respondent does not use the domain name for a legitimate business. Furthermore, it is asserted that the domain name was acquired in bad faith since Respondent must have known of Complainant and that it is not actively using the domain name.

 

B. Respondent

Respondent contends that the domain name <abnormal.ai> merely consists of a generic dictionary term. Respondent also contends that Complainant was not the owner of the original, lapsed domain name registration and thus Complainant cannot base grounds for transfer on anything related to the prior domain name registration. Respondent has also submitted that it had no knowledge of Complainant or the prior registrant prior to its acquisition of the domain name, and that the domain name was legitimately acquired at auction.

 

FINDINGS

Uncontested by Complainant is the fact that another legal entity registered and allowed the original <abnormal.ai> domain name to lapse. The term "abnormal" is a commonly used generic term. Respondent had no knowledge of Complainant at the time it acquired the domain name at auction. Complainant has provided no evidence that indicates the term abnormal or "abnormal ai" has become a distinctive identifier of the domain name. Purchase of a generic domain name at auction is not inherently evidence of bad faith.

 

DISCUSSION

Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted and 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.

 

Identical and/or Confusingly Similar

The Complainant relies on two series of trademarks, the first being for ABNORMAL ("the ABNORMAL trademark") and the second for ABNORMAL SECURITY ("the ABNORMAL SECURITY trademark"). The Panel has examined both series of trademarks and finds them to be in order. The Complainant has therefore established its ownership of both series of trademarks.

 

The Complainant submits that the disputed domain name is identical or confusingly similar to its "trademarks", presumably meaning to one or the other of the above groups.

 

With respect to the ABNORMAL trademark, the domain name may well be identical to that trademark if the Top Level Domain ".ai" is ignored, which would be in keeping with the traditional approach of ignoring the Top Level Domain for the purposes of this comparison, and the domain name would then read as "abnormal" simpliciter. The Complainant has therefore probably met what is often referred to as the "low threshold" of merely a "standing requirement" to give the Complainant the standing to bring the proceeding, without it having any effect on the resolution of the more substantial issues in a UDRP proceeding.

 

However, the Panel also feels bound to say that there may be good reason not to ignore the Top Level Domain ".ai", just as there are good reasons for not avoiding it in other examples in the now extensive range of new Top Level Domains. That is because it, and other examples, have an actual meaning and it is unrealistic to ignore them.

 

In the present case, the ".ai" suffix is the Country Code for the Government of Anguilla in the West Indies. But it would be a bold person who asserted that this is all that it means. It is universally and increasingly taken to mean "artificial intelligence" and it must be beyond argument that those who register domain names in this space often mean, and want it to be understood that they mean, that such a domain name relates to activities connected in some way with artificial intelligence, and not only in Anguilla.

 

Indeed, ICANN itself recognizes ".ai" to be not only the sign for the small island of Anguilla but also as a generic Top Level Domain and it is listed as such by ICANN¹. Moreover, on information readily available from the Internet, a prominent seller of domain names, Go Daddy, notes that "the world recognizes" ".ai" as signifying "artificial intelligence".²

 

Thus, realistically, the domain name in this proceeding means abnormal or abnormality as related in at least some way to artificial intelligence. Accordingly, internet users would see the domain name as signifying the notion of "abnormal", but only where it is related in some way with artificial intelligence. An internet user would therefore have no reason to associate it with Complainant's ABNORMAL trademark which is not limited in such a way, or in any other way with the Complainant's business which is in security, not artificial intelligence. The internet user would assume that the domain name meant abnormality related to or arising in some way from artificial intelligence, whereas it would note that the trademark was not so confined but that it was related to all abnormality of whatever genre.

 

In that case, which in the Panel's opinion is a more practical and realistic way of interpreting the present domain name, it is for the foregoing reasons not identical to the ABNORMAL trademark and is not confusingly similar to it.

 

Nevertheless, as already noted, as the requirement in Policy ¶ 4(a)(i) has been construed by many panels as a minimal requirement to have "standing" to bring the proceeding, then ignoring the Top Level Domain and viewed from that limited perspective, the Complainant has met the formal requirement. 

 

The Panel will therefore as a matter of formality allow the matter to proceed to a consideration of the other and more substantial issues.

 

With respect to the ABNORMAL SECURITY trademark, the domain name is substantially different from that trademark, introducing as it does the significant element of "SECURITY", and whether the ".ai" Top Level Domain is taken into account or not. The domain name is therefore neither identical to the trademark nor confusingly similar to it.

 

Rights or Legitimate Interests

The Panel finds that Respondent has a right or legitimate interest in the Disputed Domain Name, having bought it at auction as part of its business of buying and selling of domain names comprised of generic terms, and the disputed domain name being one that consists of a generic word. 

 

The word "abnormal" is an ordinary dictionary word in the English language and therefore, in the absence of compelling evidence of bad intention or other reason to doubt the propriety of the Respondent's conduct, it has the right to use it and hence a legitimate interest in it. Indeed, all things being equal, anyone has such a right to use such an ordinary dictionary word in a domain name. That conclusion may well be very different, of course, if the word in question, despite being a dictionary word, were also a world famous mark (e.g. "Apple"), although even then the context would be determinative and it may be that, even then, the word was being used simply as a dictionary word rather than as invoking the trademark. 

 

In the present case, the Complainant does not show by evidence that either of its marks is famous or prominent, despite their use and recognition. Thus, there is no evidence to rebut the presumption that the Respondent is entitled to use this dictionary and generic word in its domain name.

 

Moreover, the view here expressed by the Panel is consistent with the view of panels in many prior UDRP proceedings. See Platterz Inc. v. Andrew Melcher, FA 1729887 (Forum June 19, 2017) (holding that "investing in genuinely generic terms, for purpose of resale, is a legitimate business and that the acquisition of domain names consisting of common, dictionary terms for resale can confer rights and legitimate interests upon entrepreneurs who engage in this activity."). See X6D Limited v. Telepathy, Inc., Case No. D2010-1519 (Nov. 16, 2010) (given "the commercial value of descriptive or generic domain names it has become a business model to register and sell such domain names to the highest potential bidder."); see also Audiopoint, Inc. v. eCorp, D2001-0509 (WIPO June 14, 2001)("speculation in domain names . . . may itself constitute a bona fide activity under paragraph 4(c)(i)"); see also Incorp Services, Inc. v. RareNames, WebReg, 559911 (Forum Nov. 10, 2005) ("selling domain names consisting of generic or descriptive terms is a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i)"). See also General Machine Products Company, Inc. v. Prime Domains (a/k/a Telepathy, Inc.), FA92531 (Forum Mar. 16, 2000) (finding that Respondent established legitimate interests in selling generic and descriptive domain names). Advanced Analytical Technologies, Inc. v. Hare, Myles / URL Enterprises Ltd., FA 1701430 (Forum Jan. 1, 2017) ("Respondent is a domain reseller who had acquired a valuable non-distinctive four-letter domain name at auction. Gridiron Fiber Corp. and Lumos Telephone LLC d/b/a Lumos Networks v. Yui Quan, FA 1970005 (Forum Dec. 2021) (finding that "Respondent acquired the Disputed Domain in this auction…. had no actual knowledge of Complainant …[and] Respondent acquired the Disputed Domain Name because she believed it presented a good business opportunity to add to her portfolio of domain names…. Respondent has demonstrated that she acquired the Disputed Domain Name 'in connection with a bona fide offering of goods or service', paragraph 4(c)(i) of the Policy. Under these facts the Panel finds that Respondent has a legitimate interest in respect to the Disputed Domain Name.").

 

Therefore, this Panel finds that Respondent has rights and legitimate interests in the <abnormal.ai> domain name.

 

As Complainant has thus failed on this the second element under the UDRP, it fails in the entire proceeding. However, in the interests of completeness, the Panel will make some additional observations on the issue of bad faith.

 

Registration and Use in Bad Faith

The Panel finds that there was no bad faith registration when the Respondent acquired the domain name. It simply went to an auction and there is nothing to suggest it knew of the Complainant or domain name's earlier ownership prior to the auction. The evidence indicates that the Respondent was simply buying a generic domain name at an auction which is not bad faith, nor is doing so with the intent to resell it, unless in breach of the Policy.

 

Nor does the evidence show that the Respondent has used the domain name in bad faith.

 

The Panel has also been influenced by the facts that, as noted above, (a) Complainant has not shown its trademark to be a famous mark; (b) there is no evidence that Respondent knew of Complainant when it registered the mark; and (c) there is no other evidence of any bad faith conduct by Respondent.  As to the latter point, offering to sell a DN is not ipso facto bad faith (domain names are bought and sold routinely), and it is particularly unlikely to be evidence of bad faith when, as in the present case, the Complainant approached Respondent to try to buy the domain name rather than the Respondent having made an opening offer to sell it. See, on these issues :Technologies Sensopia Inc. v. BLUE NOVA INC., FA 1725217 (Forum June 9, 2017) ("As to bad faith use, the resale of descriptive, generic domain names does not prove bad faith. So long as there is no intended targeting of the mark owner, or some level of abuse directed specifically toward that victim, bad faith cannot be found from an offer to sell such a domain name."). Live-Right, LLC v. Domain Administrator / Vertical Axis Inc., FA 1622960 (Forum July 16, 2015) ("The Panel finds that a respondent is free to register a domain name consisting of common terms and that the domain name currently in dispute contains such common terms, and therefore finds that Respondent did not register or use the domain name in bad faith under Policy ¶ 4(a)(iii).").

 

The Panel therefore finds that the Respondent has neither registered nor used the disputed domain name in bad faith.

 

Thus, the Complainant has made out the first of the three elements that it must establish but has failed to establish the second and third elements.

 

REVERSE DOMAIN NAME HIJACKING

While Complainant's case was weak, the Panel finds that it is not such that Complainant could not have considered it possible that it might prevail. Rather, it is a case where the Complainant may well have considered on reasonable grounds that it could prevail and that it was therefore justified in bringing the proceeding. Thus, the Panel finds that Reverse Domain Name Hijacking has not been attempted.

 

DECISION

Complainant having failed to establish all three elements required under the ICANN Policy, the Panel concludes that relief shall be DENIED.

 

Accordingly, it is Ordered that the <abnormal.ai> domain name REMAIN WITH Respondent.

 

 

Michael Albert and The Honorable Neil Anthony Brown KC, as Panelists

and David S. Safran as Chair

Dated: July 26, 2024