Complainant is Nectar Collector Colorado LLC of Boulder, Colorado, United States of America, represented by Morriss O'Bryant Compagni, P.C., United States of America.
Respondent is Patricia Castrejon of North Hollywood, California, United States of America. 2. The Domain Name and Registrar
The disputed domain name is registered with 1&1 Internet AG (the "Registrar"). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on November 6, 2015. On November 9, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On November 17, 2015, 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 and 4, the Center formally notified Respondent of the Complaint, and the proceedings commenced on November 19, 2015. In accordance with the Rules, paragraph 5, the due date for Response was December 9, 2015. Respondent did not submit any response. Accordingly, the Center notified Respondent's default on December 10, 2015.
The Center appointed Jordan S. Weinstein as the sole panelist in this matter on December 22, 2015. 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 is the owner of United States Registration Number 4,467,713 for the mark NECTAR COLLECTOR in connection with "smoking pipes; and essential oil vaporizer pipes". The registration was issued on January 14, 2014 from an application filed January 4, 2013.
The disputed domain name was registered on June 3, 2015, after Complainant's trademark registration issued. 5. Parties' Contentions A. Complainant
Complainant asserts that it is the owner of the trademark NECTAR COLLECTOR, which is used in connection with smoking pipes and essential oil vaporizer pipes. Complainant asserts that it has used the NECTAR COLLECTOR mark since at least as early as February 15, 2013, and that the mark is well-known in the ornamental glass and smoking pipe industry. Complainant asserts that it uses the NECTAR COLLECTOR mark in the domain name , among others. Complainant promotes its goods in connection with the NECTAR COLLECTOR mark on its website, which is linked to the domain name.
Complainant asserts that the disputed domain name is identical to its NECTAR COLLECTOR mark, with the mere addition of a generic Top-Level Domain ("gTLD").
Complainant asserts that Respondent has no rights or legitimate interests in respect of the disputed domain name as Respondent is not an authorized dealer of goods or services in connection with which the NECTAR COLLECTOR mark is used, nor is it licensed to use such trademark. Further, Complainant asserts that Respondent is neither making a legitimate noncommercial or fair use of the disputed domain name, without intent for commercial gain, nor is commonly known by the disputed domain name. Instead, Complainant asserts that the disputed domain name resolves to a website that sells products that appear to be counterfeit versions of Complainant's goods.
Complainant asserts that Respondent registered the disputed domain name with the primary purpose of diverting potential customers of Complainant to Respondent's website for the purpose of siphoning off Complainant's customers for Respondent's profit, and that Respondent's actions clearly led to the disruption of the business of a competitor.
Complainant asserts that it has been unable to find any rights or legitimate interest that Respondent may have in the term "nectar collector", having performed a search of the electronic records of the Unites States Patent and Trademark Office, and found that Respondent has no trademark registrations for a "nectar collector" mark in her home jurisdiction of the United States.
Complainant asserts that the disputed domain name was registered and is being used in bad faith, because Respondent lacks any rights or legitimate interests in the trademark NECTAR COLLECTOR. Therefore, registration of the disputed domain name was without any legitimate purpose or intent. As Respondent is not licensed to use Complainant's trademarks, Complainant concludes that Respondent's sole purpose in registering the disputed domain name was to divert business away from Complainant by obtaining a domain name registration essentially identical or confusingly similar to Complainant's trademark.
Complainant contends that Respondent registered the disputed domain name for the purpose of diverting sales from Complainant to its own commercial website. Complainant asserts that the website to which the disputed domain name resolves consists of a header showing Complainant's trademark, underneath of which are photographs of products for sale, which are identified with Complainant's mark, and in one case, even uses a photograph of Complainant's product that is believed to have been taken from Complainant's website. All such products appear to be offered for sale through this commercial website. As Respondent has no relationship with Complainant, Complainant believes that orders to Respondent's website are fulfilled with counterfeit goods. Complainant asserts that Respondent registered the disputed domain name with the primary purpose of diverting potential customers of Complainant to Respondent's website for the purpose of siphoning off Complainant's customers for Respondent's profit. B. Respondent
Respondent did not reply to Complainant's contentions. 6. Discussion and Findings A. Applicable Policy Provisions
Paragraph 4(a) of the Policy requires Complainant to prove each of the following three elements in order to prevail in this proceeding:
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(ii) Respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) the disputed domain name has been registered and is being used in bad faith.
It is not sufficient to prevail that a complainant prove only registration in bad faith; rather, a complainant must prove both registration and use in bad faith. See World Wrestling Federation Entertainment, Inc. v. Michael Bosman,WIPO Case No. D1999-0001; Robert Ellenbogen v. Mike Pearson,WIPO Case No. D2000-0001.
However, the Policy states that the following circumstances shall be evidence of the registration and use of a domain name in bad faith:
(i) Circumstances indicating that [Respondent has] registered or acquired the disputed domain name primarily for the purpose of selling, renting or otherwise transferring the domain name registration to Complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of documented out-of-pocket costs directly related to the disputed domain name; or
(ii) [Respondent has] registered the disputed 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 [Respondent has] engaged in a pattern of such conduct; or
(iii) [Respondent has] registered the disputed domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the disputed domain name, [Respondent has] intentionally attempted to attract, for commercial gain, Internet users to [its] website or other on-line location, by creating a likelihood of confusion with Complainant's trademarks as to the source, sponsorship, affiliation, or endorsement of [its] website or location or of a product or service on [its] website or location.
Policy, paragraph 4(b). These circumstances are non-exclusive, and a UDRP panel may consider other circumstances as constituting registration and use of a domain name in bad faith. Id.
A respondent may demonstrate rights in or legitimate interests to the domain name by any of the following, without limitation:
"(i) Before any notice to you 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, 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 are making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert customers or to tarnish the trademark or service mark at issue." Policy, paragraph 4(c).
Where a respondent is in default, a UDRP panel may draw such inferences as it considers appropriate. Rules, paragraph 14(b). B. Identical or Confusingly Similar
The Panel finds that the disputed domain name is confusingly similar to Complainant's registered trademark NECTAR COLLECTOR. Adding the generic top-level suffix ".net" fails to distinguish the disputed domain name from Complainant's trademark. SeeSociété Générale and Fimat International Banque v. Lebanon Index/La France DN and Elie Khouri, WIPO Case No. D2002-0760.
The Panel finds that Complainant has provided sufficient evidence to establish paragraph 4(a)(i) of the Policy. C. Rights or Legitimate Interests
Complainant has asserted, and Respondent has failed to dispute or rebut, that Respondent is not an authorized dealer of goods or services in connection with which the mark is used, and that Respondent is not licensed to use such trademark. Further, Complainant asserts that its search of the electronic records of the U.S. Patent and Trademark Office uncovered no trademark registrations owned by Respondent for a "nectar collector" mark in Respondent's home jurisdiction. See Educational Testing Service v. Netkorea Co., WIPO Case No. D2000-0087.Respondent has failed to dispute these assertions as well.
There is no evidence before the Panel that Respondent is making a legitimate noncommercial or fair use of the disputed domain name; to the contrary, it appears from the evidence of record that Respondent is making a commercial use of Complainant's exact trademark, in connection with copycat goods.
As a result, the Panel determines that Complainant has established paragraph 4(a)(ii) of the Policy. D. Registered and Used in Bad Faith
The Panel finds that Complainant has provided sufficient evidence satisfying paragraph 4(b)(iv) of the Policy, namely that by using the disputed domain name, Respondent intentionally intended to attract for commercial gain Internet users to its website by creating a likelihood of confusion with Complainant's marks as to the source, sponsorship, affiliation or endorsement of Respondent's website.
Respondent's website is selling goods related to Complainant's goods, under the identical word mark NECTAR COLLECTOR, through a domain name that is legally identical to Complainant's registered trademark. These facts clearly evidence the registration and use of the disputed domain name in bad faith as outlined in paragraph 4(b)(iv) of the Policy. 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.
Jordan S. Weinstein
Sole Panelist
Date: January 6, 2016
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