Complainant is Total Temperature Instrumentation, Inc. DBA “Instumart” of South Burlington, Vermont, United States of America (“US”), self-represented.
Respondent is Domains By Proxy, LLC of Scottsdale, Arizona, US / Name Redacted, represented by C. Broering-Jacobs, US. 2. The Domain Name and Registrar
The disputed domain name is registered with GoD, LLC (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 17, 2014. On April 22, 2014, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On the same day, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to Complainant on April 24, 2014 providing the registrant and contact information disclosed by the Registrar and invited Complainant to submit an amendment to the Complaint. On April 24, 2014, Complainant confirmed its election to proceed without amending the Complaint.
The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).
In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified Respondent of the Complaint, and the proceedings commenced on May 5, 2014. In accordance with the Rules, paragraph 5(a), the due date for Response was May 25, 2014. The Response was filed with the Center on May 24, 2014.
The Center appointed Frederick M. Abbott as the sole panelist in this matter on June 3, 2014. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.
By email dated June 4, 2014, the Panel issued Administrative Panel Procedural Order No. 1 through the Center to the parties. Taking note that Respondent had expressed interest in trying to resolve this matter directly through the Registrar so as to avoid being the subject of a decision, the Panel requested information as to whether Respondent may have been successful in that effort. The Panel indicated its intention to proceed as in this decision should Respondent not succeeded directly with the Registrar. The Panel referred the parties to a decision illustrating a methodology it has previously employed to address circumstances similar to those present here, i.e., Accenture Global Services Limited v. Domains By Proxy, LLC / Name Redacted,WIPO Case No. D2013-2099.
By email dated June 5, 2014, Respondent indicated that the matter had not been resolved directly with the Registrar and welcomed the Panel’s proposal of the instant methodology.
Because of the nature of this proceeding, the Panel renders this decision in a summary manner. 4. Factual Background
Complainant has provided evidence of ownership of rights in the trademark INSTRUMART in the form of registration on the Principal Register of the United States Patent and Trademark Office, registration number 3646816, registration dated June 30, 2009, in international class 35.
According to the Registrar’s verification, an individual Respondent is registrant of the disputed domain name, with registration creation date of March 24, 2014. Complainant and Respondent have provided substantial evidence that the individual named Respondent did not, in fact, register the disputed domain name.
Complainant has provided substantial evidence that the disputed domain name has been used as part of an email address by an unknown third-party to give the impression that the subject email is sent from Complainant. That deceptive email address has been used as the basis for undertaking fraudulent commercial activities that have harmed the interests of Complainant. 5. Discussion and Findings
The Panel is satisfied that the individual named Respondent in this proceeding was not party to registration of the disputed domain name, and that registration of the disputed domain name was secured fraudulently (i.e., through knowing misuse by a third-party of the individual Respondent’s identity). The Registrar has advised that the second Respondent, Domains By Proxy, LLC, is not the registrant of the disputed domain name. Registration of the disputed domain name was undertaken by a third-party by fraudulent means, and the individual named Respondent appearing in the WhoIs record disclaims any knowledge of or interest in the disputed domain name.
The Panel does not consider it appropriate or necessary to take into account the interests of the third-party that undertook the registration under false pretenses. The Panel therefore renders this Decision in summary form, taking into account that Complainant has provided evidence to support its rights in the INSTRUMART trademark.
On the basis of the evidence presented in the Complaint, and taking into account the evidence provided by the individual named Respondent, the Panel determines that (1) Complainant has rights in the trademark INSTRUMART, (2) the disputed domain name is confusingly similar to that trademark, (3) Complainant has established that Respondent has no rights or legitimate interests in the disputed domain name, and (4) the disputed domain name was registered and is being used in bad faith. 6. Decision
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name, , be transferred to Complainant.
For purposes of properly executing this order, the Panel also directs the Registrar’s attention to Annex 1 hereto that identifies the individual listed as registrant of the disputed domain name in the formal record of registration, and orders that the disputed domain name, , be transferred from that individual to Complainant.
The Panel directs the Center that Annex 1 shall not be published along with this Decision.
Frederick M. Abbott
Sole Panelist
Date: June 5, 2014
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