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Jumpcloud.net registrant given immense slack in #UDRP decision

The registrant of Jumpcloud.net was given immense slack by the NAF panelist, in a UDRP filed by the registrants of the matching .com.

The Respondent failed to renew the domain in 2016, thus dropping its original registration stamp of 2012, and the domain was re-registered in 2017. Meanwhile, the JUMPCLOUD mark was registered in 2014.

This leapfrogging of dates didn’t seem to sway the panelist towards the Complainant, since the Respondent provided renewal receipts from GoDaddy. The panelist ordered the domain Jumpcloud.net to remain with the Respondent. Full details on this decision follow:

The domain transfer was denied.

JumpCloud, Inc. v. Peter Irion / SCS LLC

Claim Number: FA2009001914971

PARTIES

Complainant is JumpCloud, Inc. (“Complainant”), represented by Madelon Lapidus of Holland & Hart LLP, Colorado, United States. Respondent is Peter Irion / SCS LLC (“Respondent”), represented by Alfred C. Constants III of Constants Law Offices LLC, New York, United States.

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <jumpcloud.net>, registered with GoDaddy.com, 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.

The Honourable Neil Anthony Brown QC as Panelist.

PROCEDURAL HISTORY

Complainant submitted a Complaint to the Forum electronically on September 28, 2020; the Forum received payment on September 28, 2020.

On September 29, 2020, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <jumpcloud.net> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, 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 September 30, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 16, 2020 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@jumpcloud.net. Also on September 30, 2020, 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.

A timely Response was received and determined to be complete on November 16, 2020.

On November 20, 2020,the FORUM received an Additional Submission filed on behalf of Complainant.

On November 20, 2020, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the Forum appointed The Honourable Neil Anthony Brown QC as Panelist.

Having reviewed the communications records, the Administrative Panel (the “Panel”) finds that the 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.

RELIEF SOUGHT

Complainant requests that the domain name be transferred from Respondent to Complainant.

PARTIES’ CONTENTIONS

A. Complainant

Complainant made the following contentions

Complainant, founded in 2013, securely connects and manages employees, their devices, and IT applications. Complainant’s innovative Directory-As-A-Service solution allows customers to authenticate, authorize, and manage users, devices, and applications via a common directory in the cloud, rather than through legacy, on-premises IT systems. Complainant submits that it has rights in the JUMPCLOUD mark through Complainant’s registration of the mark with the United States Patent and Trademark Office (“USPTO”) (e.g. Reg. No. 4,558,805, registered July 1, 2014). Respondent’s <jumpcloud.net> is identical or confusingly similar to Complainant’s JUMPCLOUD mark as it simply adds the generic top-level domain (gTLD) “.net” to Complainant’s mark.

Respondent lacks rights or legitimate interests in the <jumpcloud.net> domain name. Respondent is not commonly known by the disputed domain name nor has Respondent been authorized by Complainant to use the JUMPCLOUD mark. Respondent has not used the disputed domain name in connection with a bona fide offering of goods or services as Respondent uses the disputed domain name to perpetuate a phishing scheme by impersonating employees of Complainant. Furthermore, Respondent uses the website associated with the disputed domain name to host what appears to be a temporary splash page.

Respondent registered and uses the <jumpcloud.net> domain name in bad faith. Respondent disrupts Complainant’s business by using the disputed domain name to impersonate Complainant as part of an illegal phishing scheme. Additionally, Respondent had actual knowledge of Complainant’s rights to the JUMPCLOUD mark prior to registering the disputed domain name evidenced by the famous nature of Complainant’s mark and Respondent’s attempts to impersonate Complainant.

B. Respondent

Respondent made the following contentions.

Respondent’s small, boutique business does custom website solutions for small clients and uses domain names, including the <jumpcloud.net> domain name, to develop, test and demonstrate solutions for Respondent’s clients. Respondent purchased the disputed domain name on December 6, 2012, and has owned, maintained and used the disputed domain name since that time. Given that Respondent owned the disputed domain name prior to Complainant’s trademark, Respondent did not attempt to add a top level domain to Complainant’s mark.

Respondent uses the <jumpcloud.net> domain name to develop and demonstrate software solutions in support of Respondent’s clients. Respondent accepts a small number of generally small business clients seeking custom software solutions often leveraging cloud-based solutions and does not advertise or seek additional clients in the commercial spaces occupied by Complainant. Furthermore, the disputed domain name is not a splash page but rather a function demonstration system of a well-known Drupal based CMS (content management system). Lastly, Respondent has not sought to tarnish or impinge on Complainant’s brand, marketing or business space in any way.

Respondent did not register the <jumpcloud.net> domain name in bad faith as it has owned, maintained and used the disputed domain name continuously since December 2012, nearly two years prior to Complainant’s trademark registration of the JUMPCLOUD mark. At no time did Complainant communicate with Respondent to express interest or concern in the disputed domain name. Further, any attempt at reviewing WHOIS information from December 2012 through December 2016 would have clearly shown the long standing registration information for the disputed domain name belonging to Respondent.

Respondent was unaware of Complainant’s business activities until notified of this complaint and has no knowledge of or specific interest in Complainant’s business base or clients.

Respondent refutes the charge of email phishing because Complainant’s exhibit 6 does not prove it and it could be something as simple as an email spoofing attempt originating from any system as no forensic detail is supplied by Complainant in the exhibit. Respondent further argues there is no attempt from any user that corresponds to Complainant’s exhibit 6.

C. Additional submissions

Complainant

1. Complainant reiterates that according to evidence obtained from Go Daddy, the disputed domain name was created on February 24, 2017. Accordingly although Respondent has stated that it purchased the domain name on December 6, 2012, the record shows that Respondent must have acquired it on February 24, 2017.

2. But even if Respondent acquired the domain name on December 6, 2012, that was subsequent to the date on which Complainant established its trademark rights. That is because Complainant first registered its entity name JUMPCLOUD INC. with the State of Delaware on December 20, 2010, nearly two years prior to Respondent’s alleged acquisition date for the Disputed Domain Name.

3. Although its Federal registration was not acquired until 2013, the record of that federal registration shows that Complainant used the JUMPCLOUD mark from August 1, 2012 and hence before December 6, 2012.

4. In any event, Complainant had established trademark rights in JUMPLCLOUD from August 27, 2012 when Complainant registered the domain name <jumpcloud.in>.

5. Respondent relies on the fact that it renewed the registration of the domain name in 2013, 2014, 2015, 2017, 2018, 2019, and 2020. However it is significant that the re-registrations occurred after Complainant had filed its applications for federal registration of the JUMPCLOUD mark and well after Complainant had registered its entity name with the Delaware Department of State and acquired the <jumpstart.in> domain name.

6. Respondent has al.so indicated a disposition in favour of selling the domain name to Complainant as part of a settlement.

FINDINGS

1. Complainant is a United States company that securely connects and manages employees, their devices, and IT applications. Its Directory-As-A-Service solution allows customers to authenticate, authorize, and manage users, devices, and applications via a common directory in the cloud, rather than through legacy, on-premises IT systems.

2. Respondent is a United States resident whose small business provides custom website solutions for small clients and uses domain names, including the <jumpcloud.net> domain name, to develop, test and demonstrate solutions for Respondent’s clients.

3. Complainant has established its trademark rights in the JUMPCLOUD mark through its registration of the mark with the United States Patent and Trademark Office (“USPTO”) (e.g. Reg. No. 4,558,805, registered July 1, 2014).

4. Complainant is also the domain name holder of the domain name <jumpcloud.com> which it uses in its business

5. Respondent registered the disputed domain name, <jumpcloud.net>, on December 6, 2012 , not on February 24, 2017, as submitted by Complainant and Respondent renewed the registration on each year subsequent to the initial registration.

DISCUSSION

Paragraph 15(a) of the Rules instructs this Panel to “decide a complaint on the basis of the statements and documents submitted 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.

Identical and/or Confusingly Similar

The first question that arises is whether Complainant has rights in a trademark or service mark on which it may rely. Complainant submits that it has rights in the JUMPCLOUD mark through Complainant’s registration of the mark with the United States Patent and Trademark Office (“USPTO”) (e.g. Reg. No. 4,558,805, registered July 1, 2014). Registration of a mark with the USPTO is sufficient to demonstrate rights in the mark per Policy ¶ 4(a)(i). See DIRECTV, LLC v. The Pearline Group, FA 1818749 (Forum Dec. 30, 2018) (“Complainant’s ownership of a USPTO registration for DIRECTV demonstrate its rights in such mark for the purposes of Policy ¶ 4(a)(i).”). Therefore, the Panel finds Complainant has demonstrated rights in the JUMPCLOUD mark per Policy ¶ 4(a)(i).

It should be said here that the Panel has ruled that Complainant has the necessary trademark because Complainant is required only to show that it “has” trademark rights, i.e, that it has them at the time the Complaint was filed, not that it had them before the domain name was registered or at any other time. That issue is important and is so in the present case, particularly on the issue of bad faith, but all that is required under the present “threshold” issue is whether Complainant has a trademark and it clearly has one. However, this is a convenient point to say that the trademark rights that Complainant has shown, date only from the date of registration of that trademark, namely July 1, 2014.

Complainant made an Additional Submission which the Panel received and has taken into account because it responded to some matters raised by Respondent which were clearly new to Complainant and to which it, Complainant, was entitled to reply.

Complainant argued in the Additional Submission that its trademark rights dated, not from the date of registration of its USPTO trademark, July 1, 2014, but from earlier, because it had effected a previous registration in the State of Delaware. It argued in its Additional submission that that was on December 20, 2010. Complainant submitted that it registered its entity name JUMPCLOUD INC. with the State of Delaware on 20 December 2010, nearly two years prior to Respondent’s alleged acquisition date of the Disputed Domain Name. The evidence to that effect is clear and Complainant did register its entity name on that date. But that is not a State trademark. It is true that there are some decisions to the effect that a State, rather than a Federal, registration of a trademark is adequate to give standing to a Complainant in a UDRP proceeding and Complainant has cited two decisions to that effect. But they were cases of the registration of State trademarks, not the registration of entity names, company names or other registrations which have never been accepted as giving standing in UDRP proceedings. Complainant’s evidence is not that it obtained a State trademark registration on 20 December 2010, but that on that date it registered its entity name. Complainant has therefore adduced evidence of only one trademark, namely its federal trademark, which was registered on July 1, 2014 and it has not adduced evidence of a State trademark.

Complainant has two further argument which it is also convenient to address at this time. The first of those arguments is that even if its only trademark was the federal or USPTO trademark, registered on July 1, 2014, Complainant was actually using it as early August 1, 2012, and that that fact appears from the certificate of registration which is attached to the additional submission as Exhibit C. However, there are two problems with that argument. The first is that relying on those dates as dates when events actually occurred, as opposed to what they really are, which are dates claimed by the trademark owner and not supported by evidence, has always been treated in UDRP proceedings with some reserve, rather than as evidence of when a trademark was in fact first used as a trademark. The second problem is that the certificate relied on, it is true, shows a claimed first date of use, but it shows also the claimed date of first use in commerce, which is more significant for trademark purposes. That date is January 24, 2013 which was after the date when Respondent claims it registered the domain name, namely December 6, 2012. Accordingly, Complainant’s argument that its trademark rights started to run from August 1, 2012 cannot succeed.

The second of Complainant’s other two arguments is that it also had an Indian domain name, <jumpcloud.in>, which it registered on August 27, 2012 (before the disputed domain name was registered), that domain names are evidence of a common law trademark and that therefore Complainant had a common law trademark from that date. However, the most that can be said for that approach is that the registration of a domain name can be put together with other evidence to show a common law trademark. This is one issue on which prior decisions have been useful, for they have shown the categories of evidence that panelists will look for and which they will accept as evidence of a common law trademark. Such matters that will be regarded as evidence are the number and value of sales, receipts, dockets, invoices, sums spent on advertising and unsolicited recognition in the media. To be of value, the evidence must show that that the name in question acquired a secondary meaning to the effect that the claimed mark acted as a designation of the source of the party’s goods and services. There is no such evidence in the present case showing that the term became recognized as the source of the Complainant’s goods and services and the Panel therefore has to hold that Complainant has not made out a common law trademark for JUMPCLOUD.

The Panel therefore has to reiterate that Complainant has established only one trademark, namely its registered USPTO trademark that was registered and gave rise to trademark rights from July 1, 2014.

The next question that arises is whether the disputed domain name is identical or confusingly similar to Complainant’s JUMPCLOUD mark. Complainant argues Respondent’s <jumpcloud.net> domain name is identical or confusingly similar to Complainant’s JUMPCLOUD mark as it simply adds the generic top-level domain (gTLD) “.net” to Complainant’s mark. The addition of a gTLD fails to distinguish a disputed domain name sufficiently from a mark per Policy ¶ 4(a)(i). See Verragio, LTD. v. Lance Liao, FA 1445159 (Forum July 5, 2012) (“Respondent’s <verragio.net> domain name is identical to Complainant’s VERRAGIO mark, since Respondent has merely added the generic top-level domain (“gTLD”) ‘.net.’”). Therefore, the Panel finds the disputed domain name is confusingly similar to Complainant’s mark per Policy ¶ 4(a)(i).

As noted above, Respondent argues that its registration of the <jumpcloud.net> domain name predates Complainant’s alleged rights in the trademark. But, as has already been indicted, such a determination is not necessary under Policy ¶ 4(a)(i) as this portion of the Policy considers only whether Complainant has rights in the mark and whether the disputed domain name is identical or confusingly similar to it. Other questions will be determined later in this decision See AB Svenska Spel v. Zacharov, D2003-0527 (WIPO Oct. 2, 2003) (holding that the UDRP does not require a complainant to have registered its trademark prior to the respondent’s registration of the domain name under Policy ¶ 4(a)(i) but may prevent a finding of bad faith under Policy ¶ 4(a)(iii)); see also Clear!Blue Holdings, L.L.C. v. NaviSite, Inc., FA 888071 (Forum Mar. 5, 2007) (“Although the domain name in dispute was first registered in 1996, four years before Complainant’s alleged first use of the mark, the Panel finds that Complainant can still establish rights in the CLEAR BLUE marks under Policy ¶ 4(a)(i).”).

Complainant has thus made out the first of the three elements that it must establish.

Rights or Legitimate Interests

It is now well established that Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), then the burden shifts to Respondent to show it does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests”).

The Panel finds that Complainant has made out a prima facie case that arises from the following considerations:

(a) Respondent has registered a domain name that includes the whole of Complainant’s JUMPCLOUD trademark;

(b) The record shows, prima facie, that Respondent registered the <jumpcloud.net> domain name on February 24, 2017 (although there will be debate about whether this is actually the date when Respondent acquired the domain name);

(c) It appears that Respondent is not commonly known by the domain name.

As Complainant has made out a prima facie case it is now necessary to see if Respondent has rebutted that case.

The Panel finds that Respondent has rebutted the prima facie case and that consequently Respondent has a right or legitimate interest in the disputed domain name. That is so for the following reasons.

First, it is important to clarify when Respondent registered the domain name. It is part of Complainant’s case that Respondent registered the domain name on February 24, 2017. That was alleged because the GoDaddy.com WHOIS record shows that the domain name was registered on that date. However, Respondent replies that that is not the whole story, because he registered the domain name on December 6, 2012 and several other domain names. They were also registered with Go DADDY but a problem arose on renewal of the registration of the disputed domain name, which was that Respondent’s credit card expired. Respondent then rectified the registration by having the series of domain names registered under a “pro-level account” with Go-Daddy.com in February of 2017, which resulted in the revised registration date of the domain name being given as 24 February 2017.

In support of that contention, Respondent adduced a series of receipts showing that the domain name was registered on December 6, 2012 and that the registration was renewed in each subsequent year (apparently with the exception of 2016) including 2020. Based on the fact that the payments were apparently made, Respondent’s explanation is plausible and the Panel accepts it. The Panel therefore finds that the disputed domain name was registered by Respondent on December 6, 2012.

Secondly, Complainant has argued that Respondent uses the disputed domain name to perpetuate a phishing scheme by impersonating employees of Complainant. Using a confusingly similar domain name to pass off as a complainant in furtherance of a phishing scheme would of course not be a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii) and would therefore negate any possibility that Respondent had a right or legitimate interest in the domain name. See Emerson Electric Co. v. Adilcon Rocha, FA 1735949 (Forum July 11, 2017) (finding that respondent’s attempt to pass off as complainant through emails does not constitute a bona fide offering of goods or services and, as such, respondent lacked rights or legitimate interests in the disputed domain name); see also Goodwin Procter LLP v. GAYLE FANDETTI, FA 1738231 (Forum Aug. 8, 2017) (“[T]he Domain Name has been used in an attempted fraud. As such it cannot have been registered for a legitimate purpose.”). Complainant argues that Respondent generates fraudulent emails from an official-looking email address ending in <@jumpcloud.net>. See Compl. Exhibit 6. Complainant argues these emails are designed to pass Respondent off as Complainant and extract personal and/or confidential information from Complainant’s unsuspecting customers. This of course is a very serious accusation. Respondent submits that it is false and that Respondent has not used the domain name for that purpose, but rather that he has used it in the course of his legitimate business.

Respondent argues that he uses the disputed domain name to develop and demonstrate software solutions for its own customers, and thus the disputed domain name does not resolve to a splash page as alleged . Using a disputed domain name for legitimate offerings such as the one explained by Respondent prior to receiving notice of a complaint may be a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii). See David J. Joseph Co. v. Barry, D2000-1418 (WIPO Jan. 2, 2001) (finding that the respondent provided substantial evidence of his demonstrable preparations to use the domain name with a business involving the sale of scrap materials prior to receiving notice of the present dispute). Here, Respondent argues that Respondent has used the disputed domain name in connection with developing and demonstrating software solutions.

The matter is somewhat technical and it is difficult for a UDRP panel to decide such matters when it does not have access to the forensic tools available to a court. A panel therefore has to make a judgement based on the entirety of the facts as they are known and likelihood of one version of the facts being more credible than another. The Panel has come to the conclusion that the Respondent’s explanation is plausible and the Panel accepts it. Therefore, the Panel finds Respondent has make a bona fide offering of goods or services per Policy ¶ 4(c)(i), giving it a right and legitimate interest in the domain name.

Complainant has thus failed to make out the second of the three elements that it must establish.

Registration and Use in Bad Faith

It is clear that to establish bad faith for the purposes of the Policy, Complainant must show that the disputed domain name was registered in bad faith and has been used in bad faith. It is also clear that the criteria set out in Policy ¶ 4(b) for establishing bad faith are not exclusive, but that Complainants in UDRP proceedings may also rely on conduct that is bad faith within the generally accepted meaning of that expression.

The Panel finds that the disputed domain name was not registered and used in bad faith and that neither its registration nor use was in bad faith. That is so for the following reasons.

First, Complainant contended that Respondent registered and uses the <jumpcloud.net> domain name in bad faith as Respondent uses it to impersonate Complainant as part of an illegal phishing scheme. However, Respondent has rejected that argument and the Panel agrees with Respondent, on the basis that on the totality of the evidence it is more likely than not that this was not Respondent’s intention nor what he was actually engaged in doing. Put somewhat differently, the Panel is not satisfied on the balance of probabilities that Complainant has discharged its onus of proof. Bad faith on this ground has therefore not been made out.

Secondly, the Panel finds that Complainant has failed to meet the burden of proof of bad faith registration and use under Policy ¶ 4(a)(iii) as it has not proved any of the specified criteria of bad faith under the Policy or bad faith in general. See Tristar Products, Inc. v. Domain Administrator / Telebrands, Corp., FA 1597388 (Forum Feb. 16, 2015) (“Complainant makes conclusory allegations of bad faith but has adduced no specific evidence that warrants a holding that Respondent proceeded in bad faith at the time it registered the disputed domain name. Mere assertions of bad faith, even when made on multiple grounds, do not prove bad faith.”); see also Chris Pearson v. Domain Admin / Automattic, Inc., FA 1613723 (Forum Jul. 3, 2015) (finding that the complainant could not establish the respondent registered and used the disputed domain name in bad faith because it failed to present evidence that would support such a holding).

Thirdly, as the Panel accepts that Respondent registered the <jumpcloud.net> domain name on December 6, 2012 this predates Complainant’s rights in the JUMPCLOUD mark on its registration on July 1, 2014. A Complainant generally cannot prove registration in bad faith per Policy ¶ 4(a)(iii) if the domain name was registered before the trademark and there are no exceptional circumstances in the present case to show why that general policy should not apply. See Faster Faster, Inc. DBA Alta Motors v. Jeongho Yoon c/o AltaMart, FA 1708272 (Forum Feb. 6, 2017) (“Respondent registered the domain name more than a decade before Complainant introduced the ALTA MOTORS mark in commerce. Respondent therefore could not have entertained bad faith intentions respecting the mark because it could not have contemplated Complainant’s then non-existent rights in [the mark] at the moment the domain name was registered.”). When a respondent registers a disputed domain name prior to a complainant registering a trademark, the respondent did not register the disputed domain name in bad faith. See Aspen Grove, Inc. v. Aspen Grove, D2001-0798 (WIPO Oct. 5, 2001) (finding that it is “impossible” for the respondent to register disputed domain name in bad faith if the complainant company did not exist at the time of registration); see also Telecom Italia S.p.A. v. NetGears LLC, FA 944807 (Forum May 16, 2007) (determining the respondent could not have registered or used the disputed domain name in bad faith where the respondent registered the disputed domain name before the complainant began using the mark). Here, Respondent argues that he purchased the disputed domain name on December 6, 2012 and has subsequently renewed the domain name since that date. As the Panel has noted, the evidence supports this conclusion. See Resp. Exhibits 1-8. Respondent consolidated the renewal of the disputed domain name after a simple credit card expiration issue, which resulted in the revised registration date of February 24, 2017. See id. Therefore, the Panel finds Respondent did not register the disputed domain name in bad faith per Policy ¶ 4(a)(iii).

Fourthly, Respondent argues that Respondent did not register the disputed domain name in bad faith as Respondent was unaware of Complainant’s business activities until notified of this complaint. When a complainant fails to prove a respondent knew or should have known about the complainant at the time of registration of the domain name, it is open to the Panel to find that the respondent did not register the domain name in bad faith. See Seaway Bolt & Specials Corp. v. Digital Income Inc., FA 114672 (Forum Aug. 5, 2002) (finding that because the complainant’s mark was not particularly well-known outside of its field, and the complainant failed to show that the respondent knew or should have known about the complainant at the time of registration, the respondent did not register the domain name in bad faith). Here, Respondent argues that Respondent had no knowledge of or specific interest in Complainant’s business base or clients until Complainant initiated this action. On the totality of the evidence, that seems to be more likely than not. Therefore, the Panel finds Respondent did not register the disputed domain name in bad faith per Policy ¶ 4(a)(iii).

Complainant has thus failed to make out the third of the three elements that it must establish.

REVERSE DOMAIN NAME HIJACKING

Complainant could and should have made more inquiries and investigated this matter further before filing its Complaint, especially as the Complaint contained some very serious allegations against Respondent which now seem unlikely. As a result of not investigating the matter further, Complainant has come close to a finding of Reverse Name Hijacking being made against it. However, filing the complaint may not have been motivated by an intention to harass Respondent or in bad faith. Rather Complainant may have been motivated solely by a desire to defend its trademark without, first, a careful consideration of how best to go about achieving that objective. Thus, the Panel will not make a finding of Reverse Domain Name Hijacking.

DECISION

Having not established all three elements required under the ICANN Policy, the Panel concludes that relief shall be DENIED.

Accordingly, it is Ordered that registration of the <jumpcloud.net> domain name remain with Respondent.

The Honourable Neil Anthony Brown QC

Panelist

Dated: November 27, 2020


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