Some Respondents in UDRP cases filed against their domains are quite spontaneous or even combustive.
In the case of EDCOrlando.US filed at the National Arbitration Forum, the Respondent had already lost the case against the .com.
His response, while unofficial, was quite interesting:
“Lol would have sold it for 500 I’ll keep buying domains you keep spending that dough may want to make me sign something because I’m never going away for how you stole edcorlando.com from me”
Apparently, the Respondent registered the domain around the time he lost the UDRP for EDCOrlando.com in 2016:
Following his UDRP loss, the Respondent registered the matching .org, .net, .info and .XYZ domains, which are now being challenged in a separate, pending UDRP, along with edclasvegastickets.com.
The domain EDCOrlando.US was ordered to be transferred; full details follow:
Insomniac Holdings, LLC v. Mark Daniels
Claim Number: FA1706001735970
PARTIESComplainant is Insomniac Holdings, LLC (“Complainant”), represented by Christopher Varas of Kilpatrick Townsend & Stockton LLP, Washington, USA. Respondent is Mark Daniels (“Respondent”), Florida, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <edcorlando.us>, registered with GoDaddy.com, LLC.
PANEL
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Kenneth L. Port as Panelist.
PROCEDURAL HISTORY
Complainant submitted a Complaint to the Forum electronically on June 15, 2017; the Forum received payment on June 15, 2017.
On June 16, 2017, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <edcorlando.us> 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 U.S. Department of Commerce’s usTLD Dispute Resolution Policy (the “Policy”).
On June 16, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 6, 2017 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@edcorlando.us. Also on June 16, 2017, 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, the Forum transmitted to the parties a Notification of Respondent Default
On July 11, 2017, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the Forum appointed Kenneth L. Port 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 to the usTLD Dispute Resolution Policy (“Rules”). Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the usTLD Policy, usTLD Rules, the National Arbitration 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, Insomniac Holdings, LLC, is the organizer and promoter of the Electric Daisy Carnival music festival series with headquarters in Beverly Hills, California, USA. In connection with this business, Complainant uses the EDC mark to promote its goods and services. Complainant has rights in the mark based upon registration with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 4,090,760, registered Jan. 24, 2012). See Compl., at Attached Annex F (Schedule of Complainant’s trademark registrations). Respondent’s domain name is confusingly similar as it appends the geographic term “orlando” and the country code top-level-domain (“ccTLD”) “.us.”
Respondent lacks rights and legitimate interests in the disputed domain name. Respondent is not commonly known by <edcorlando.us> and Complainant has not authorized Respondent to use the EDC mark. Further, Respondent fails to use <edcorlando.us> in connection with a bona fide offering of goods and services or for a legitimate noncommercial or fair use; instead, Respondent fails to make an active use of the disputed domain name. See Compl., at Attached Annex K (Screenshot of <edcorlando.us>).
Respondent registered and uses <edcorlando.us> in bad faith. Respondent fails to make an active use of the disputed domain name. Respondent registered <edcorlando.us> with knowledge of Complainant’s rights in the EDC mark—further evidence of Respondent’s bad faith per Policy ¶ 4(a)(iii).
B. Respondent
Respondent failed to submit a formal Response in this proceeding. The disputed domain name, <edcorlando.us>, was registered September 14, 2016. Respondent did file a nonresponsive Response which stated in its entirety as follows:
Lol would have sold it for 500 I’ll keep buying domains you keep spending that dough may want to make me sign something because I’m never going away for how you stole edcorlando.com from me
FINDINGS
The Panel finds that the disputed domain name is confusingly similar to Complainant’s valid and subsisting trademark; that Respondent has no rights or interests in or to the disputed domain name; and that Respondent has engaged in bad faith use and registration of the disputed domain name.
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 or is being used in bad faith.
Given the similarity between the Uniform Domain Name Dispute Resolution Policy (“UDRP”) and the usTLD Policy, the Panel will draw upon UDRP precedent as applicable in rendering its decision.
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 and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
Identical and/or Confusingly Similar
The Panel finds that the disputed domain name, <edcorlando.us>, is confusingly similar to Complainant’s valid and subsisting trademark, EDC. Complainant has adequately pled it rights and interests in and to that trademark. Respondent arrives at the disputed domain name by merely appending the generic geographic term “Orlando” and the g TLD “.us” to the end of Complainant’s trademark. This is insufficient to distinguish the disputed domain name from Complainant’s trademark.
As such, the Panel finds the disputed domain name to be confusingly similar to Complainant’s trademark.
Rights or Legitimate Interests
Also, the Panel finds that Respondent has no rights or legitimate interests in or to the disputed domain name. Respondent has no license or permission to register the disputed domain name. There is no evidence in the record that indicates Respondent is commonly known by the disputed domain name.
Respondent is not making a bona fide offering of goods or services via the disputed domain name, nor a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(ii) and (iv), respectively. Instead, the disputed domain name resolves to an inactively held webpage. Inactive use does not show evidence of either a bona fide offering of goods or services or a legitimate noncommercial fair use.
As such, the Panel finds that Respondent is not making an offering which would satisfy Policy ¶¶ 4(c)(ii) or (iv) and lacks any rights or legitimate interests in or to the disputed domain name.
Registration or Use in Bad Faith
Further, the Panel finds that Respondent has engaged in bad faith use and registration of the disputed domain name. Although Complainant makes no specific arguments regarding bad faith, under a non-exclusive analysis, the Panel determines the totality of the circumstances and, here, finds Respondent has engaged in bad faith use and registration. In its non-responsive Response to the Forum, Respondent admitted its intent to interfere with Complainant’s trademark on a continuing basis. Under the totality of the circumstances, this amounts to bad faith use and registration.
Respondent apparently inactively holds the <edcorlando.us> domain name. Failure to make an active use of a disputed domain name can evince a finding of bad faith registration and use per Policy ¶ 4(a)(iii). See VideoLink, Inc. v. Xantech Corporation, FA1503001608735 (Forum May 12, 2015) (“Failure to actively use a domain name is evidence of bad faith registration and use pursuant to Policy ¶ 4(a)(iii).”). Here, Complainant alleges Respondent has not made any active use of the disputed domain name and that any use would cause confusion. See Compl., at Attached Annex K. The Panel finds this to be further evidence of Respondent’s bad faith registration and use of the disputed domain name.
Furthermore, the non-responsive Response that Respondent filed with the Forum also indicates that Respondent had actual knowledge of Complainant’s trademark and its rights therein.
As such, the Panel finds that Respondent has engaged in bad faith use and registration of the disputed domain name.
DECISION
Having established all three elements required under the usTLD Policy, the Panel concludes that relief shall be granted.
Accordingly, it is Ordered that the <edcorlando.us> domain name transferred from Respondent to Complainant.
Kenneth L. Port, Panelist
Dated: July 12, 2017
