In the UDRP case of Crooker Construction v. Harry Crooker & Sons, the Complainant sought to have the domain name Crooker.com transferred to them, alleging that the Respondent had engaged in unauthorized access and fraudulent redirection of internet traffic and emails.
The Complaint detailed that the Respondent had changed the public DNS records to redirect traffic to a fraudulent host registered with NameCheap. However, the Complainant did not claim any trademark or service mark rights over the domain name.
The UDRP panelist noted that the Complainant failed to establish that it held any trademark or service mark rights in the domain name Crooker.com, concluding that the Complainant had not established the necessary elements required under the UDRP policy to justify the transfer of the domain name.
The Complainant’s request for relief was denied and the domain name Crooker.com was ordered to remain with the Respondent.
Note: It’s important to note that the listed Respondent is in fact a company that was acquired by the Complainant in 2014. It is not clear if the alleged perpetrator was indeed linked to the previous owner’s name and company.
The domain transfer was denied.
Crooker Construction v. Harry Crooker & Sons
Claim Number: FA2406002103218
PARTIES
Complainant is Crooker Construction (“Complainant”), represented by Matthew V. Toldero of Constangy, Brooks, Smith & Prophete LLP, North Carolina, USA. Respondent is Harry Crooker & Sons (“Respondent”), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is crooker.com, registered with Network Solutions, LLC.
PANEL
The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.
Alan L. Limbury, as Panelist.
PROCEDURAL HISTORY
Complainant submitted a Complaint to Forum electronically on June 21, 2024. Forum received payment on June 21, 2024.
On June 26, 2024, Network Solutions, LLC confirmed by e-mail to Forum that the crooker.com domain name is registered with Network Solutions, LLC and that Respondent is the current registrant of the name. Network Solutions, LLC has verified that Respondent is bound by the Network Solutions, LLC registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On July 2, 2024, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 22, 2024 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@crooker.com. Also on July 2, 2024, the Written Notice of the Complaint, notifying Respondent of the e-mail addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
Having received no response from Respondent, Forum transmitted to the parties a Notification of Respondent Default.
On July 23, 2024, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, Forum appointed Alan L. Limbury as Panelist.
Having reviewed the communications records, the Administrative Panel (the “Panel”) finds that Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”) “to employ reasonably available means calculated to achieve actual notice to Respondent” through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, Forum’s Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.
RELIEF SOUGHT
Complainant requests that the domain name be transferred from Respondent to Complainant.
PARTIES’ CONTENTIONS
A. Complainant
Complainant, Crooker Construction, says Respondent is a cyber hacker. As the result of an unauthorized access event, Respondent fraudulently redirected Internet traffic including incoming email communications to the domain @crooker.com to a fraudulently created host, mx1.privateemail.com at the IP address of 209.17.116.160, by way of changing the public DNS records. The fraudulent host is registered with NameCheap, who has been alerted to this activity.
There is no trademark or service mark dispute as to this issue.
Complainant requests that access be restored to the proper Network Solutions, LLC host at IP Address 206.188.193, as Complainant has properly maintained this domain name since June 5, 2006.
B. Respondent
Respondent failed to submit a Response in this proceeding.
FINDINGS
Complainant has failed to establish that it has a trademark or service mark. This proceeding is outside the scope of the Policy.
DISCUSSION
Paragraph 15(a) of the Rules instructs this Panel to “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 requires that Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:
(1) the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(2) Respondent has no rights or legitimate interests in respect of the domain name; and
(3) the domain name has been registered and is being used in bad faith.
In view of Respondent’s failure to submit a response, the Panel shall decide this administrative proceeding on the basis of Complainant’s undisputed representations pursuant to paragraphs 5(f), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
Identical and/or Confusingly Similar
Complainant states that “There is no trademark or service mark dispute as to this issue” and has provided no evidence that it has rights in a trademark or service mark. Hence Complainant has failed to establish this element.
Further, the Panel finds that this dispute is outside the scope of the Policy. See The Thread.com, LLC v. Jeffrey S. Poploff, WIPO Case No. D2000-1470 (January 5, 2001):
“This Panel is not a general domain name court, and the Policy is not designed to adjudicate all disputes of any kind that relate in any way to domain names. Rather, the Policy is narrowly crafted to apply to a particular type of abusive cybersquatting. To invoke the Policy, a Complainant must show that the domain name at issue is identical or confusingly similar to a mark in which the Complainant has rights, that the Respondent lacks rights or a legitimate interest in the domain name, and that the Respondent registered and used the name in bad faith. Policy ¶ 4(a).”
Rights or Legitimate Interests and Registration and Use in Bad Faith
It is unnecessary to consider these elements.
DECISION
Complainant having not established all three elements required under the ICANN Policy, the Panel concludes that relief shall be DENIED. This denial is without prejudice to the Complaint being refiled should Complainant be able to present evidence of a right to a trademark or service mark on which it relies.
Accordingly, it is Ordered that the crooker.com domain name REMAIN WITH Respondent.
Alan L. Limbury, Panelist
Dated: July 24, 2024
