The Complainant is Elisa Klein of Portland, Oregon, United States of America ("United States"), self-represented.
The Respondent is Hari Adi of Anaheim, California, United States. 2. The Domain Name and Registrar
The disputed domain name is registered with Crazy Domains FZ-LLC (the "Registrar"). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on October 13, 2015. On October 13, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On October 14, 2015, the Registrar transmitted by email to the Center its verification response confirming that the 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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on October 19, 2015. In accordance with the Rules, paragraph 5, the due date for Response was November 8, 2015. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on November 9, 2015.
Subsequently to filing her Complaint the Complainant submitted four communications to the Center (as well as one prior to filing), all containing additional arguments and some including additional supporting documentation. In reply to such communications the Center advised that (a) pursuant to the Rules the Complainant should copy the Respondent on each such communication and (b) as the Policy and Rules include no provision for submissions beyond the one authorized per party, their admissibility would be determined by the Panel upon appointment.
The Center appointed Richard G. Lyon as the sole panelist in this matter on November 16, 2015. The Panel finds that it was properly constituted and has jurisdiction to decide this administrative proceeding. The Panel has submitted his 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
The Panel finds the following facts from the evidence submitted in and with the Complaint.
The Complainant is the editor and publisher of "PortlandSocietyP", an online free public news source for nonprofits in the Portland, Oregon, United States area. This service was and remains popular in this area as evidenced by favorable publicity and a large and active following on Facebook. She registered the disputed domain name in 2011 and until earlier this year used it for this service. At some point in 2015, however, her account at her registrar was hacked and the disputed domain name re-registered by the Respondent.
The disputed domain name currently resolves to a "server not found" page, but the Complainant alleges that it was first used for a webpage with pornographic pictures and hyperlinks. The Complainant currently operates her news source page from another domain name that she owns. 5. Parties' Contentions A. Complainant
The Complainant contends that the disputed domain name is identical to a trademark in which the Complainant has rights, that the Respondent lacks rights or a legitimate interest in the disputed domain name, and that the Respondent registered and used the disputed domain name in bad faith. Certain more specific contentions are discussed in Section 6 below.
In addition to transfer of the disputed domain name the Complainant requests that the Respondent reimburse her the fee for filing the Complaint. B. Respondent
The Respondent did not reply to the Complainant's contentions. 6. Discussion and Findings A. Standards Applicable to Default Cases
That the Respondent has not replied to the allegations of the Complaint does not alone generate a ruling in the Complainant's favor. Under the Policy, unlike much civil litigation, a default does not constitute an admission of any matter pleaded in the Complaint or automatically result in a Decision for Complainant. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition ("WIPO Overview 2.0"), paragraph 4.6. Even in a default case "[t]he Policy requires the Complainant to prove each of the three elements. Policy, paragraph 4." Western Research 3000, Inc. v. NEP Products, Inc.,WIPO Case No. D2004-0755. The Complainant bears the burden of proof to demonstrate by a preponderance of the evidence that each element of paragraph 4(a) of the Policy has been satisfied. B. The Complainant's Additional Submissions
The Policy expressly permits only one pleading per party. That is consistent with the Policy's stated objective of prompt resolution of cybersquatting disputes. For the same reason supplemental submissions are strongly disfavored, although a panel in its discretion may accept them. WIPO Overview 2.0, paragraph 4.2. Here the Panel does admit them, even though they do not meet the "exceptional circumstances" criterion in the Overview. Four of the filings were made before notification of the Complaint and may thus be deemed amendments. The fifth came after notification, but was sent to the Respondent well before the date the Response was due,1 in good time for the Respondent to take its contents into account. None of the submissions was prompted by content in the Response (as no Response was filed), the most common circumstance generating additional filings. There appears however to be no harm to the Respondent from admitting this material. The Complainant has filed pro se in what appears to be her first UDRP proceeding, and nothing in the post-Complaint communications or the record as a whole suggests sandbagging or other improper conduct on her part. The Panel will consider the content of these communications in deciding this matter. C. Identical or Confusingly Similar
The Complainant asserts and has proven common law rights in PORTLAND SOCIETY PAGE by her continuous use of that designation since 2011 (as evidenced inter alia by the Portland Society Page archive of posts maintained on the alternate domain name the Complainant owns) for her online service and former ownership of the disputed domain name. A common law mark suffices for Policy purposes, see WIPO 2.0, paragraph 1.7. The disputed domain name is identical to this mark except for the generic Top-Level Domain ".com", which is ordinarily ignored in this comparison, so the Complainant prevails on this Policy element. D. Rights or Legitimate Interests
The Complainant prevails on this element as well. As this Policy element requires the Complainant to prove a negative, the Complainant must make a prima facie case that the Respondent lacks a right or legitimate interest. Upon doing so, the burden of production shifts to the Respondent to come forward with evidence of a right or legitimate interest. As with other Policy elements, the burden of proof remains with the Complainant. See WIPO Overview 2.0, paragraph 2.1.
The Complainant here has made its prima facie case by demonstrating without contradiction that it has never authorized the Respondent to use its mark and that the Respondent has never been commonly known by the disputed domain name. The record reveals no legitimate use by the Respondent, as directing the Complainant's former page to pornography links is plainly not legitimate. The Respondent thus has not overcome the Complainant's prima facie showing. E. Registered and Used in Bad Faith
While the Complainant has not submitted a screen shot or other direct evidence of the Respondent's use for pornography, the record does contain sufficient proof that, since not contradicted, persuades the Panel to find that such bad faith use occurred. The Complainant has submitted a letter from an advertising placement service notifying the Complainant of a violation of advertising policies at the parked website and evidence of a possible attempt at cyberflight by the Respondent. In the absence of countervailing evidence this is enough to demonstrate bad faith. Further, the Complainant herself, not a representative, made the certification required by paragraph 3(b)(xiv) of the Rules that "the information contained in this Complaint is to the best of Complainant's knowledge complete and accurate." As it has previously done this Panel treats that certification from one personally familiar with the facts as the equivalent of a statement under oath.
The Respondent registered the disputed domain name recently enough for the Panel to infer bad faith in registration from such bad faith use. The Complainant has met its burden of proof under paragraph 4(a)(iii).
The Policy does not authorize the Panel to award any relief other than transfer or cancellation of the disputed domain name. The Complainant's request for the Respondent to reimburse the Complainant's filing fee is denied for lack of jurisdiction. 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 the Complainant.
Richard G. Lyon
Sole Panelist
Date: November 23, 2015
1 The Panel confirmed that the Center transmitted each of the Complainant's post-Complaint submission communications to the Respondent.
Full & Egal Universal Law Academy