Complainant is Adam Laneer Construction, Inc., United States of America (“United States”) (“Complainant”), represented by Bean, Gentry, Wheeler, & Peternell, PLLC, United States.
Respondent is Perfect Privacy, LLC, United States / Soleio Cuervo, Rose Village LLC, United States (“Respondent”). 2. The Domain Name and Registrar
The disputed domain name is registered with Network Solutions, LLC (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 13, 2019. On September 16, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On September 17, 2019, 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 September 17, 2019, providing the registrant and contact information disclosed by the Registrar, and inviting Complainant to submit an amendment to the Complaint. Complainant filed an amended Complaint on September 20, 2019 (hereinafter, 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 and 4, the Center formally notified Respondent of the Complaint, and the proceedings commenced on September 23, 2019. In accordance with the Rules, paragraph 5, the due date for Response was October 13, 2019. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on October 14, 2019.
The Center appointed M. Scott Donahey as the sole panelist in this matter on October 16, 2019. 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 a Washington state construction company formed in April of 2012 and operating under that name continuously since that time, and it has used the mark continuously in its business and in advertising. Complaint, Annex 6.
Complainant registered the disputed domain name on April 11, 2012. Complaint, Annex 8. Complainant began using the disputed domain name at that time in conjunction with its construction business and 5,093 users visited the web site to which the disputed domain name resolved prior to the time that the disputed domain name was transferred out of Complainant’s control. Complaint, Annex 7.
In December 2017, Complainant’s gmail account was hacked, and on December 29, 2017, the disputed domain name was transferred from the original registrar to Network Solutions. Respondent, who is the listed registrant of the name with Network Solutions, is not using the disputed domain name for any commercial purpose. Complainant’s principal’s picture is still hosted on the About Us page on the web site to which the disputed domain name currently resolves. Complaint, Annex 10.
The registrant of the disputed domain name, as listed by Network Solutions, is one “Soleio Cuervo” affiliated with an entity identified as “Rose Village LLC.” Rose Village, LLC, is an inactive entity whose registered agent is shown as “Rod Johnson.” Complaint, Annex 16. On September 19, 2019, Complainant, through its legal counsel, attempted to contact Rod Johnson, but received no response. Complaint, Annex 17.
Complainant filed an Unauthorized Transfer Complaint with the Internet Corporation for Assigned Names and Numbers (ICANN) on August 8, 2018. Complaint, Annex 11. ICANN responded that the disputed domain name had apparently been hijacked, and that the disputed domain name was subsequently acquired by third parties. Complaint, Annex 12. 5. Parties’ Contentions A. Complainant
Complainant contends that the disputed domain name is not only identical to that registered by Complainant, but that the registration of the disputed domain name has been effectively “stolen” from Complainant and registered by an unknown third party; that the disputed domain name is identical to a trademark in which the Complainant has rights; that the current registrant has no rights or legitimate interests in respect of the disputed domain name; and that the disputed domain name was effectively stolen from Complainant, purportedly transferred to a third party, and subsequently registered by someone wholly unconnected with Complainant whose identity is unknown, all of which constitutes bad faith registration and use. B. Respondent
Respondent did not reply to Complainant’s contentions. 6. Discussion and Findings
“A Panel shall 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 directs that the complainant must prove each of the following:
(i) that the domain name registered by the respondent is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and,
(ii) that the respondent has no rights or legitimate interests in respect of the domain name; and,
(iii) that the domain name has been registered and is being used in bad faith. A. Identical or Confusingly Similar
Complainant has not registered the mark, but contends that Complainant should be considered to have common law rights to ADAM LANEER CONSTRUCTION due to the facts set out in Section 4 above. Based on the available evidence before the Panel, the Panel finds that Complainant has provided sufficient evidence to demonstrate common law trademark rights for purposes of this proceeding. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 1.3.
Further, given that the disputed domain name consists of Complainant’s mark entirely, the Panel finds that the disputed domain name is identical to a mark in which Complainant has rights. B. Rights or Legitimate Interests
While the overall burden of proof in UDRP proceedings is on the complainant, UDRP panels have recognized that proving a respondent lacks rights or legitimate interests in a domain name may result in the often impossible task of “proving a negative”, requiring information that is often primarily within the knowledge or control of the respondent. As such, where a complainant makes out a prima facie case that the respondent lacks rights or legitimate interests, the burden of production on this element shifts to the respondent to come forward with relevant evidence demonstrating rights or legitimate interests in the domain name. If the respondent fails to come forward with such relevant evidence, the complainant is deemed to have satisfied the second element. WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 2.1.
In the present case, Complainant alleges that Respondent has no rights or legitimate interests in respect of the disputed domain name and Respondent has failed to assert any such rights. Accordingly, the Panel finds that Respondent has no rights or legitimate interests in respect of the disputed domain name. C. Registered and Used in Bad Faith
Respondent registered the disputed domain name under the name of an individual supposedly affiliated with an entity that is inactive, listing as a contact a second individual who fails to respond to enquiries from the rightful registrant of the disputed domain name. Complaint, Annexes 15,16, and 17. The panel finds that the Complainant has demonstrated that the domain name was legitimately registered by Complainant, that upon learning that the control of the registration had been unlawfully wrested from it, Complainant attempted to contact anyone and everyone apparently associated with the pilfered domain name registration without any success, and in most cases without any response whatsoever. Additionally, Complainant’s principal picture is still hosted on the About Us page on the web site to which the disputed domain name resolves. Accordingly, the Panel finds that the disputed domain name was registered and is being used in bad faith. 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.
M. Scott Donahey
Sole Panelist
Date: October 16, 2019
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