Complainant is Linode LLC of New Jersey, United States of America ("United States"), represented internally.
Respondent is Dennis H. Doss of Irvine, California, United States. 2. The Domain Name and Registrar
The Disputed Domain Name is registered with R (the "Registrar"). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on September 5, 2014. On September 8, 2014, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Disputed Domain Name. On September 8, 2014, the Registrar transmitted by email to the Center its verification response confirming that Respondent is listed as the registrant and providing the contact details.
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 the Respondent of the Complaint, and the proceedings commenced on September 19, 2014. In accordance with the Rules, paragraph 5(a), the due date for Response was October 9, 2014. Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on October 10, 2014.
The Center appointed Richard W. Page as the sole panelist in this matter on October 13, 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. 4. Factual Background
Complainant, Linode LLC, is an Internet service provider specializing in the provisioning of LINUX virtual server (VPS) systems. Based in Galloway, New Jersey, United States, Complainant has been in continuous operation for over eleven years, and the LINODE trademark (the "Mark") has come to be recognized worldwide in association with VPS services. The Mark is registered with the United States Patent and Trademark Office. The Mark was first used in commerce on June 16, 2003, with a trademark filing date of July 8, 2008 and registration date of July 13, 2010.
The Disputed Domain Name was created on November 25, 2010. It resolves to a webpage offering downloads of third party software, music and movies. 5. Parties' Contentions A. Complainant
Complainant alleges that it has enforceable trademark rights in the Mark and that the Disputed Domain Name is identical or confusingly similar to Complainant's Mark. Complainant further alleges that the Disputed Domain Name is identical or confusingly similar because it incorporates the entirety of the Mark with the addition of the generic Top-Level-Domain ("gTLD") suffix ".com".
Complainant asserts that the Respondent has no rights or legitimate interests in respect of the Disputed Domain Name, because Respondent is fraudulently using Complainant's name in a commercial context, which cannot be found to be a bona fide use.
Complainant alleges that Respondent has registered and is using the Disputed Domain Name in bad faith because Respondent has attempted to attract for commercial gain, Internet users to Respondent's website or other online location, by creating a likelihood of confusion with the Complainant's Mark as to the source, sponsorship, affiliation, or endorsement of the Respondent's website or location or of a product or service on the Respondent's website or location. B. Respondent
The Respondent did not reply to the Complainant's contentions. 6. Discussion and Findings
Paragraph 15(a) of the Rules instructs the Panel as to the principles the Panel is to use in determining the dispute: "A Panel shall 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."
A respondent is not obliged to participate in a domain name dispute proceeding, but if it were to fail to do so, asserted facts that are not unreasonable would be taken as true and the respondent would be subject to the inferences that flow naturally from the information provided by the complainant: Reuters Limited v. Global Net 2000, Inc.,WIPO Case No. D2000-0441.
Even though Respondent has failed to file a Response or to contest Complainant's assertions, the Panel will review the evidence proffered by Complainant to verify that the essential elements of the claims are met.
Paragraph 4(a) of the Policy directs that Complainant must prove each of the following:
i) that the Disputed Domain Name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and,
ii) that Respondent has no rights or legitimate interests in respect of the Disputed Domain Name; and,
iii) that the Disputed Domain Name has been registered and is being used in bad faith. A. Identical or Confusingly Similar
Complainant has provided evidence demonstrating ownership of a registration of the Mark LINODE. The Panel finds that Complainant's registration of the Mark is valid and subsisting and serves as prima facie evidence of its ownership and the validity of the Mark.
Panel decisions have held that registration of a mark is prima facie evidence of validity, which creates a rebuttable presumption that the mark is inherently distinctive. Respondent has the burden of refuting this assumption: EAuto, L.L.C. v. Triple S. Auto Parts d/b/a Kung Fu Yea Enterprises, Inc.,WIPO Case No. D2000-0047.
Respondent has not provided any evidence to contradict Complainant's contentions as to its rights in the Mark. Therefore, the Panel finds that Complainant, for purposes of this proceeding, has enforceable rights in the Mark.
Complainant further contends that the Disputed Domain Name is identical with and confusingly similar to the Mark pursuant to the Policy paragraph 4(a)(i). Respondent has not contested the assertions by Complaint that the Disputed Domain Name is confusingly similar to the Mark.
Numerous UDRP decisions have recognized that incorporating a trademark in its entirety can be sufficient to establish that a domain name is identical or confusingly similar to a registered trademark.
The addition of the element "-com" within the Disputed Domain Name, does not, in this Panel's view, dispel any confusing similarity between the Disputed Domain Name and Complainant's Mark. Nor does the addition of the gTLD suffix ".com", a technical requirement for the registration of the Disputed Domain Name, distinguish it from the Mark in which Complainant has rights.
Therefore, the Panel finds that the Disputed Domain Name is confusingly similar to the Mark pursuant to the Policy paragraph 4(a)(i). B. Rights or Legitimate Interests
Complainant contends that Respondent has no rights or legitimate interest in the Disputed Domain Name pursuant to the Policy paragraph 4(a)(ii).
Paragraph 4(a)(ii) requires a complainant to prove that a respondent has no rights to or legitimate interests in the disputed domain name. Once a complainant establishes a prima facie showing that none of the three circumstances establishing rights or legitimate interests applies, the burden of production shifts to the respondent to rebut the showing. Where a respondent fails to do so, a complainant may be deemed to have satisfied paragraph 4(a)(ii) of the Policy.
The Policy paragraph 4(c) sets out three non-exclusive circumstances if found by the Panel to be proved based on its evaluation of all evidence presented, may demonstrate that Respondent has rights or legitimate interests in the Disputed Domain Name:
(i) before any notice to you [Respondent] of the dispute, your use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) you [Respondent] (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or
(iii) you [Respondent] are making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
Complainant has come forward to allege a prima facie case showing that Respondent lacks rights or legitimate interests in the Disputed Domain Name. The Panel concludes, based on the evidence before it, that the Disputed Domain name has not been used in any of the circumstances provided for in the Policy paragraph 4(c), nor does the Panel find any other circumstances to establish that Respondent has rights or legitimate interests in the Disputed Domain Name. Therefore, the Panel finds that Respondent has no rights or legitimate interests in the Disputed Domain Name pursuant to the Policy paragraph 4(a)(ii). C. Registered and Used in Bad Faith
Complainant contends that Respondent registered and is using the Disputed Domain Name in bad faith in violation of the Policy paragraph 4(a)(iii).
The Policy paragraph 4(b) sets forth four non-exclusive criteria for Complainant to show bad faith registration and use of a domain name:
(i) circumstances indicating that you [Respondent] have registered or you have acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of your documented out-of-pocket costs directly related to the domain name; or
(ii) you [Respondent] have registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that you have engaged in a pattern of such conduct; or
(iii) you [Respondent] have registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, you [Respondent] have intentionally attempted to attract, for commercial gain, Internet users to your web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of your web site or location or of a product.
Complainant alleges that Respondent has intentionally attempted to attract Internet users for commercial gain by creating a likelihood of confusion, pursuant to paragraph 4(b)(iv). Respondent has not contested Complainant's allegations.
The Panel finds that Complainant has presented sufficient evidence to establish the necessary elements of bad faith under the Policy paragraph 4(b)(iv). 7. 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.
Richard W. Page
Sole Panelist
Date: October 26, 2014
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