The Complainant is Consumer Safety Analytics, LLC, United States of America (“United States”), represented internally.
The Respondent is Andre Auguste, Advanced Nutrients, United States. 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 22, 2021. On June 23, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On June 24, 2021, 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 June 28, 2021. In accordance with the Rules, paragraph 5, the due date for Response was July 18, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on July 19, 2021. The Center appointed Evan D. Brown as the sole panelist in this matter on July 28, 2021. 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 The Complainant is a business based in California, United States and owns the registered trademark CANNASAFE (and Design), United States Reg. No. 5,748,179, issued on May 14, 2019, with an alleged date of first use in commerce of March 15, 2017. The disputed domain name was registered on August 8, 2009 and is used for a Registrar-provided “parked” page. 5. Parties’ Contentions A. Complainant The Complainant contends that the disputed domain name is identical or confusingly similar to the Complainant’s trademark; that the Respondent has no rights or legitimate interests in respect of the disputed domain name; and that the disputed domain name was registered and is being used in bad faith. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings To succeed, the Complainant must demonstrate that all of the elements listed in paragraph 4(a) of the Policy have been satisfied: (i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; (ii) the 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. A. Identical or Confusingly Similar This element requires the Panel to consider two issues: first, whether the Complainant has rights in a relevant mark; and, second, whether the disputed domain name is identical or confusingly similar to that mark. The Panel finds that the disputed domain name is identical to a trademark in which the Complainant has rights. The Complainant owns a United States registration for a form of the mark CANNASAFE. The disputed domain name incorporates the mark CANNASAFE in its entirety – this is sufficient to establish that the domain name is identical to a mark in which the Complainant has rights. Accordingly, the Complainant has established the first element under the Policy. B. Rights or Legitimate Interests While the overall burden of proof in UDRP proceedings is on a complainant, 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. WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition, (“WIPO Overview 3.0”), Section 2.1. 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. Id. In this case, the Complainant has made only bare assertions of the Respondent’s lack of rights or legitimate interests, stating that the disputed domain name is “parked” and that the Respondent has not replied to the Complainant’s communications requesting the Respondent to confirm it is not acting in bad faith and attempting to damage the Complainant’s brand. Though the Policy recognizes the difficulty a complainant faces in “proving a negative,” the Panel finds the Complainant’s assertions here to be so slight as to not meet the prima facie threshold the Policy contemplates. Accordingly, the Panel finds that the Complainant has not met its burden under this second element. C. Registered and Used in Bad Faith Subject to certain scenarios not present in this case, where a respondent registers a domain name before the complainant’s trademark rights accrue, panels will not normally find bad faith on the part of the respondent. WIPO Overview 3.0, Section 3.8.1. The disputed domain name was registered on August 8, 2009. The Complainant did not first use its CANNASAFE mark in commerce until several years later, in 2017, and did not obtain registration concerning those rights until even later, in 2019. The Complainant did not submit any evidence that the Respondent obtained the disputed domain name via transfer subsequent to the date on which the Complainant’s trademark rights came into existence or that the Respondent would have somehow been aware of the Complainant’s nascent trademark rights when registering the disputed domain name. The fact that the disputed domain name was registered approximately eight years before the Complainant first used its trademark in commerce undermines the Complainant’s assertions that the disputed domain name was registered in bad faith. Accordingly, the Panel finds that the Complainant has not met its burden under this third element. 7. Decision For the foregoing reasons, the Complaint is denied. Evan D. Brown
Sole Panelist
Date: August 11, 2021
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