DECISION

 

Monkey Loft Lounge LLC v. Apostolos Dountsis

Claim Number: FA2412002132877

PARTIES

Complainant is Monkey Loft Lounge LLC ("Complainant"), represented by Steven L. Rinehart, Utah, USA. Respondent is Apostolos Dountsis ("Respondent"), Greece.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <monkeyloft.com>, registered with Tucows Domains Inc.

 

PANEL

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

 

Steven M. Levy, Esq. as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to Forum electronically on December 31, 2024; Forum received payment on December 31, 2024.

 

On December 31, 2024, Tucows Domains Inc. confirmed by e-mail to Forum that the <monkeyloft.com> domain name is registered with Tucows Domains Inc. and that Respondent is the current registrant of the name. Tucows Domains Inc. has verified that Respondent is bound by the Tucows Domains Inc. 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 January 3, 2025, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 23, 2025 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@monkeyloft.com. Also on January 3, 2025, 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 January 24, 2025, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Steven M. Levy, Esq. 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.

 

RELIEF SOUGHT

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

 

PARTIES' CONTENTIONS

A. Complainant

Incorporated in the State of Washington, U.S.A., on March 5, 2013, Complainant operates a night club and music venue in the city of Seattle. Its location has grown to become a destination for music lovers in the Seattle area and is attended by several hundred patrons each night. Complainant, using the common law trademark MONKEY LOFT, has marketed itself exclusively as a night club and music venue and, since 2013, has become renowned in the Seattle area. Complainant is the owner of common law trademark rights in the term MONKEY LOFT.

 

The <monkeyloft.com> domain name incorporates the entirety of Complainant's mark and is thus identical thereto.

 

Respondent has no rights or legitimate interests in the disputed domain name where it is not commonly known by the domain name and it resolves the domain name to a generic landing page that displays the MONKEY LOFT mark.

 

The disputed domain name was registered and is used in bad faith based on Respondent's passively holding it and resolving it to the above-mentioned generic landing page.

 

B. Respondent

Respondent failed to submit a Response in this proceeding.

 

FINDINGS

-       Complainant has demonstrated its ownership of rights to the MONKEY LOFT mark and the <monkeyloft.com> domain name is identical or confusingly similar to the mark;

-       Complainant has not made a prima facie showing that Respondent has no rights or legitimate interests in the domain name;

-       There is no evidence that the disputed domain name has been registered and is being used in bad faith as it was acquired by Respondent prior to the earliest date on which Complainant claims trademark rights and there is no other evidence that Respondent targeted Complainant's mark in bad faith; and

-       Complainant, or its Representative, has engaged in reverse domain name hijacking by pursuing the present Complaint against the disputed domain name.

 

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.

 

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 states that it has common law rights in the MONKEY LOFT mark based on its use thereof. Registration of a trademark is not required when a complainant can demonstrate established common law rights in an asserted mark. See Klabzuba Oil & Gas, Inc. v. LAKHPAT SINGH BHANDARI, FA 1625750 (Forum July 17, 2015) ("Complainant does not claim to own a trademark registered with a governmental authority. However, Policy ¶ 4(a)(i) does not require such registration if a complainant can demonstrate having common law rights.") To establish common law rights in a name, a complainant generally must show extensive and continuous use in commerce such that the mark has developed a secondary meaning with respect to the complainant and its business. See Iacocca v. Tex. Int'l Prop. Assocs., FA 1088017 (Forum Nov. 29, 2007) ("In order to garner the benefit of common law trademark rights, Complainant must lay out, not only evidence of extensive and continuous use of the mark in commerce, but also evince some strong probability that as a result of such exposure, that consumers have come to associate the mark with Complainant, as to the source of the goods.") Here, Complainant claims to have continuously used the MONKEY LOFT mark for ten years in connection with the operation of a nightclub and music venue in Seattle, Washington, U.S.A. In support thereof, it submits screenshots from the Washington State Corporations and Charities Filing System showing registration of the entity Monkey Loft Lounge, LLC on March 5, 2013, an image of its exterior nightclub sign, public comments and recommendations dating back to April of 2014 on its Monkey Loft Facebook page, copies of advertisements for performances by various music groups at its venue, and images of patrons attending its nightclub (though the Panel notes that this final group of images do not show the claimed mark). Although the submitted evidence is minimal, it does show the use of Complainant's claimed mark and that it has gained at least some measure of a reputation with consumers. Further, Respondent has not participated in this case to dispute Complainant's evidence and claims. As such, the Panel finds that Complainant has submitted at least the bare minimum needed to support its threshold claim of common law rights in the MONKEY LOFT mark under Policy ¶ 4(a)(i).

 

Next, Complainant argues that Respondent's <monkeyloft.com> domain name is confusingly similar to its mark because the disputed domain name incorporates the MONKEY LOFT mark in its entirety and only adds the ".com" TLD. The use of an entire trademark and the addition only of a TLD is not sufficient to distinguish a disputed domain name from an asserted mark. Rollerblade, Inc. v. Chris McCrady, D2000-0429 (WIPO June 25, 2000) ("There can be no question that Respondent's domain name <ROLLERBLADE.NET> is identical to Complainant's trademark 'Rollerblade', and this Panel so finds. It is already well established that the specific top level of the domain name such as 'net' or 'com' does not affect the domain name for the purpose of determining whether it is identical or confusingly similar.") The Panel thus finds that the disputed domain name is identical or confusingly similar to Complainant's mark under Policy ¶ 4(a)(i).

 

Rights or Legitimate Interests

Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii). Should it succeed in this effort, the burden then shifts to Respondent to show that it does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) ("Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests").

 

Complainant first argues, under Policy ¶ 4(c)(ii), that Respondent lacks rights or legitimate interest in the <monkeyloft.com> domain name as Respondent is not commonly known thereby. In considering this issue, WHOIS information may be reviewed and considered by the Panel. See Amazon Technologies, Inc. v. LY Ta, FA 1789106 (Forum June 21, 2018) (concluding that 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 bore no resemblance to 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 record for the <monkeyloft.com> domain name, as revealed by the concerned Registrar after the Complaint was filed, identifies Respondent as "Apostolos Dountsis" and there is no evidence that Respondent is known otherwise. Further, Complainant specifically notes that it "has not authorized, licensed, or otherwise permitted the Respondent to use its Mark or convert the Disputed Domain" and Respondent has not filed a Response or made any other submission to claim otherwise. Therefore, the Panel finds no evidence that Respondent is commonly known by the disputed domain name under Policy ¶ 4(c)(ii).

 

Next, Complainant argues that Respondent fails to use the <monkeyloft.com> domain name in connection with a bona fide offering of goods or services and that it does not make a legitimate noncommercial or fair use thereof because Respondent is redirecting internet traffic intended for Complainant to a static website with no content other than a display of the MONKEY LOFT mark. Non-use of a disputed domain name, without further explanation, fails to demonstrate a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii). See CrossFirst Bankshares, Inc. v Yu-Hsien Huang, FA 1785415 (Forum June 6, 2018) ("Complainant demonstrates that Respondent fails to actively use the disputed domain name as it resolves to an inactive website. Therefore, the Panel finds that Respondent fails to actively use the disputed domain name for a bona fide offering of goods or services or legitimate noncommercial or fair use under Policy ¶ 4(c)(i) or (iii).") Here, Complainant submits a screenshot showing that the disputed domain name currently resolves to a website displaying the phrase "Monkey LOFT" superimposed over an elongated green bar and a cartoon image of a smiling monkey. Further, archived images of the website, which have been provided by Complainant as part of a report on the disputed domain name from DomainTools (the "Report"), show a website with a black background displaying the message "Greek Financial News" in white letters next to a large black letter "F" in a green square and a drawing of a small house on a green hill with a winding road leading up to it. This website also shows, in its upper-left corner, the same Monkey LOFT and cartoon monkey graphic as described above, though the oldest versions of the site, dating back to 2012, show only the term "Monkeyloft" in white letters against a black background in the upper-left position of the page. While the evidence suggests that Respondent may, at some point in the past, have had an intention to use the disputed domain name in connection with some form of finance related service, the presented evidence is inconclusive and the Respondent has not participated in these proceedings to provide any further information.

 

The above notwithstanding, the Panel notes that Respondent registered or acquired the disputed domain name at a time prior to the coming into existence of Complainant's trademark rights as explained in detail below. Domain names are sold on a first-come-first-served basis and, in the absence of cybersquatting, registrants have at least some basic ownership rights or legitimate interests at the time of purchase. Thus, while there is scant evidence addressing Policy ¶¶ 4(c)(i) or (iii), Complainant has failed to make a prima facie case that Respondent has no rights or legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii).

 

Registration and Use in Bad Faith

Paragraph 4(a)(iii) of the Policy is stated in the conjunctive "bad faith registration and use" [emphasis added]. Thus, a foundational question under this section of the Policy is whether or not Respondent had knowledge of Complainant's rights in its MONKEY LOFT mark at the time it registered or otherwise acquired the <monkeyloft.com> domain name. Some attribution of knowledge of a complainant's trademark, whether actual, constructive, or based upon a conclusion that a respondent should have known of the mark, is inherently prerequisite to a finding of bad faith under the Policy. See The Clash Of Trademarks And Domain Names On The Internet, at 573 (Gerald M. Levine, Legal Corner Press, 2024) ("Claims of cybersquatting rest in part on proof that respondents are motivated in their acquisitions by the values of marks corresponding to the disputed domain names; and it is that awareness of complainant's right that is said to support a finding of abusive registration."); See also USA Video Interactive Corporation v. B.G. Enterprises, D2000-1052 (WIPO Dec. 13, 2000) (claim denied where "Respondent registered and used the domain name without knowledge of Complainant for a bona fide commercial purpose.") However, "UDRP Panels routinely determine that a domain name could not have been registered in bad faith when the registration pre-dates a trademark right" and the present Panel adopts this view. UDRP Perspectives on Recent Jurisprudence, § 3.2 (updated Jan. 15, 2025), available at https://udrpperspectives.org). The lack of any evidence that a complainant's trademark existed when the disputed domain name was registered suggests that the respondent could not have known of or anticipated the trademark and thus could not have targeted it in bad faith at that point in time. See VitriVax, Inc. v. Alexander Segal, FA 1959542 (Forum Sep. 10, 2021) ("The Panel notes that Respondent's registration of the disputed domain name predates Complainant's first claimed rights in the VITRIVAX mark (filed on November 5, 2020 and proceeded to registration on August 10, 2021). Complainant generally cannot prove registration in bad faith per Policy paragraph 4(a)(iii), as the Policy requires a showing of bad faith registration and use.") The only exception to the above line of reasoning is where a respondent had prior knowledge of, or anticipated the imminent coming into existence of a complainant's trademark (e.g., insider knowledge of an upcoming brand launch). However, there is no evidence that Respondent here had such advanced knowledge of Complainant's nightclub or mark.

 

Complainant asserts that "Respondent registered the Disputed Domain with knowledge of the Complainant's notoriety and trademark rights. The Respondent's actions manifest a recognition of value and repute of the Complainant's Mark." It further submits the DomainTools Report, which includes archived WHOIS records showing various changes in Registrar and privacy guards, and it "asserts [that] the effective registration date of the Disputed Domain is December 29, 2021." The Panel has carefully reviewed the Report and concludes that it does not support the Complainant's asserted date. The archived WHOIS records for the disputed domain name indicate that it was first created on June 11, 2006 by a UK individual who seems to have no relation to the present dispute. It then appears to have expired on June 11, 2010 and subsequently lapsed and dropped. The current WHOIS record shows a Creation Date of December 4, 2010 indicating that the domain name was registered anew at the New Dream Network Registrar although the Report does not name the Registrant in these earliest records. However, the Report does include a screenshot of the <monkeyloft.com> website taken on November 26, 2012 showing the above-mentioned "Greek Financial News" content (including the phrase "Monkey LOFT") and a further record, dated January 13, 2013, shows the same screenshot as well as a Registrant name of "Apostolos Dountsis", the Respondent in the present proceedings. While the Panel cannot determine, with certainty, precisely when Respondent acquired the disputed domain name, the Report makes it clear that it was the Registrant thereof at least as of January 13, 2013. It is further noted that Complainant's evidence shows that it was incorporated on March 5, 2013 and there is no claim or submitted evidence to indicate that it possessed any trademark rights in the MONKEY LOFT mark prior to that date.

 

Though less germane to the Panel's finding, it is also noted that the Complaint and its Annexes, while asserting that its "night club and music venue [had] become renowned in the Seattle area", do not explain how a Respondent who is based in Athens, Greece, would have knowledge of Complainant's nightclub in Seattle, Washington, U.S.A. Further, while making only generic assertions that the disputed domain name redirects web traffic away from Complainant or that Respondent is seeking to "force [complainant] into transfer-for-price negotiations", it provides no specific argument or evidence to show that Respondent's use of the disputed domain name or its resulting website specifically targeted Complainant's mark in bad faith.

 

In view of the above-stated deficiencies in the Complaint and Complainant's submissions, the Panel cannot, by a preponderance of the evidence, find that the Respondent registered the disputed domain name in bad faith under Paragraph 4(a)(iii) of the Policy.

 

Reverse Domain Name Hijacking

Although Respondent has not appeared in this case, the Panel finds, sua sponte, that Complainant, or its representative, has acted in bad faith and is engaging in reverse domain name hijacking ("RDNH") by initiating this dispute. Paragraph 1 of the Rules defines RDNH as "using the Policy in bad faith to attempt to deprive a registered domain-name holder of a domain name". It appears that Complainant is attempting to deprive Respondent, the rightful, registered holder of the <monkeyloft.com> domain name, of its rights to use the same.

 

Where a complaint is filed under circumstances in which the complainant knew or should have known that it has no chance of success, Panels have often held that RDNH has occurred. See, e.g., Printfly Corporation v. Domenico Muscillo, FA 2113611 (Forum Nov. 14, 2024) ("The Complaint provides no evidence of bad faith registration or use of the Domain Names directed towards or 'targeting' the Complainants. The Panel finds that the Complainant knew or should have known that they would be unable to prove that the Respondent lacks rights or legitimate interests in the Domain Names and that the Respondent registered and is using the Domain Names in bad faith.") Further, especially where a "Complainant appears to be a substantial enterprise and is represented by competent legal counsel"¹ it is not expected to "initiate[] a proceeding that is quite clearly devoid of merit." Sustainable Forestry Management Limited v. SFM.com and James M. van Johns "Infa dot Net" Web Services, D2002-0535 (WIPO Sep. 13, 2002).

 

Here, the Complaint, who is represented by professional counsel, "asserts the effective registration date of the Disputed Domain is December 29, 2021" despite its own evidence, the DomainTools Report, reflecting Respondent as the Registrant of the disputed domain name on January 13, 2013 which is prior to Complainant's earliest claim of trademark rights on March 5, 2013. This is, at best, an inattentive review of the evidence or, at worst, a misrepresentation in the Complaint. Regardless, as Policy ¶ 4(a)(iii) requires a showing that the disputed domain name was registered in bad faith, Complainant or its counsel either knew or should have known that it would be impossible, under any argument around the present facts, to satisfy the plain language of this sub-paragraph and, thus, that it had no possibility of success against the <monkeyloft.com> domain name notwithstanding the fact that it was registered or otherwise acquired by Respondent prior to the existence of its rights in the MONKEY LOFT mark.

 

For the above-stated reasons, the Panel finds that Complainant has engaged in reverse domain name hijacking with respect to the <monkeyloft.com> domain name.

 

DECISION

Having not established all three elements required under the ICANN Policy, the Panel concludes that relief shall be DENIED.

 

Accordingly, it is Ordered that the <monkeyloft.com> domain name REMAIN WITH Respondent.

 

 

 

Steven M. Levy, Esq., Panelist

Dated: January 27, 2025