Mr. Nick Goomber, a real estate brokerage technology services professional, is the CEO of Casatank in Toronto, Canada.
The real estate professional witnessed his matching .com domain, NickGoomber.com, getting squatted upon by a corporation in Saint Kitts and Nevis.
In most cases, by being a professional one establishes common law rights to their brand name as it’s their identity to the world. The domain’s registrant allegedly posted disparaging content on NickGoomber.com. Per the UDRP:
Respondent lacks rights and legitimate interests in the <nickgoomber.com> domain name as it is not commonly known by the disputed domain name. Additionally, Respondent does not use the disputed domain name for any bona fide offering of goods or services, nor for any legitimate noncommercial or fair use. Instead, Respondent hosts a defamatory website featuring pornographic content with the intention to humiliate Complainant.
Mr. Goomber filed a UDRP at the National Arbitration Forum, and the sole panelist ordered the domain NickGoomber.com to be transferred to the Complainant.
Full details follow:
Copyright © 2024 DomainGang.com · All Rights Reserved.Nick Goomber v. Host Master / 1337 Services LLC
Claim Number: FA2011001920943
PARTIES
Complainant is Nick Goomber (“Complainant”), represented by Nick Goomber, Canada. Respondent is Host Master / 1337 Services LLC (“Respondent”), Saint Kitts and Nevis.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <nickgoomber.com>, registered with Tucows Domains Inc..
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.
Hon. Karl v. Fink (Ret.) as Panelist.
PROCEDURAL HISTORY
Complainant submitted a Complaint to the Forum electronically on November 17, 2020; the Forum received payment on November 18, 2020.
On November 18, 2020, Tucows Domains Inc. confirmed by e-mail to the Forum that the <nickgoomber.com> domain name is registered with Tucows Domains Inc. and that Respondent is the current registrant of the name. Tucows Domains Inc. has verified that Respondent is bound by the Tucows Domains Inc. 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 November 18, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 8, 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@nickgoomber.com. Also, on November 18, 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.
Having received no response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.
On December 10, 2020, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the Forum appointed Hon. Karl V. Fink (Ret.) 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. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the 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, Nick Goomber, offers real estate brokerage technology services. Complainant has common law rights in the NICK GOOMBER mark based on continuous use and recognition. Respondent’s <nickgoomber.com> domain name is identical to the NICK GOOMBER mark apart from the addition of the “.com” generic top-level domain (“gTLD”).
Respondent lacks rights and legitimate interests in the <nickgoomber.com> domain name as it is not commonly known by the disputed domain name. Additionally, Respondent does not use the disputed domain name for any bona fide offering of goods or services, nor for any legitimate noncommercial or fair use. Instead, Respondent hosts a defamatory website featuring pornographic content with the intention to humiliate Complainant.
Respondent registered and uses the <nickgoomber.com> domain name in bad faith. Respondent disrupts Complainant’s business by hosting unprofessional content at the disputed domain under Complainant’s mark. Additionally, Respondent’s use of the disputed domain name to defame Complainant suggests bad faith. Finally, Complainant uses a privacy service to conceal its identity.
B. Respondent
Respondent failed to submit a Response in this proceeding.
FINDINGS
For the reasons set forth below, based upon Complainant’s uncontested allegations and evidence, the Panel finds that Complainant is entitled to the requested relief of transfer of the <nickgoomber.com> 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 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 claims common law rights in the NICK GOOMBER mark based on continuous use and public recognition of the mark. Registration of a mark is unnecessary under Policy ¶ 4(a)(i) when a complainant can demonstrate common law rights in a mark. See Microsoft Corporation v. Story Remix / Inofficial, FA 1734934 (Forum July 10, 2017) (finding that “The Policy does not require a complainant to own a registered trademark prior to a respondent’s registration if it can demonstrate established common law rights in the mark.”). Per Policy ¶ 4(a)(i), common law rights in a mark can be established by showing that a mark has acquired a secondary meaning. See Marquette Golf Club v. Al Perkins, 1738263 (Forum July, 27, 2017) (finding that Complainant had established its common law rights in the MARQUETTE GOLF CLUB mark with evidence of secondary meaning, including “longstanding use; evidence of holding an identical domain name; media recognition; and promotional material/advertising.”). Complainant provides numerous examples of its use of the mark in connection with real estate services as well as examples of advertising and public recognition. The Panel agrees with Complainant and finds Complainant has established common law rights in the NICK GOOMBER mark under Policy ¶ 4(a)(i).
Complainant argues that Respondent’s <nickgoomber.com> domain name is identical to the NICK GOOMBER mark apart from the addition of the “.com” gTLD. Addition of a gTLD is irrelevant in determining confusing similarity between a domain name and a mark under Policy ¶ 4(a)(i). See Roche Therapeutics Inc. v. Williams Shorell, FA 1684961 (Forum Aug. 30, 2016) (“Complainant asserts Respondent’s <boniva.top> domain name is identical to the BONIVA mark. The addition of a generic top level domain to a mark does not differentiate the domain from said mark under Policy ¶ 4(a)(i).”). The Panel finds that the domain name is identical to Complainant’s mark under Policy ¶ 4(a)(i).
Complainant has proved this element.
Rights or Legitimate Interests
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 Complainant has made a prima facie case.
Complainant claims that Respondent lacks rights and legitimate interests in the <nickgoomber.com> domain name as it is not commonly known by the disputed domain name. When no response is submitted, relevant WHOIS information may demonstrate that a Respondent is not commonly known by a disputed domain name under Policy ¶ 4(c)(ii). See Instron Corp. v. Kaner, FA 768859 (Forum Sept. 21, 2006) (finding that the respondent was not commonly known by the disputed domain names because the WHOIS information listed “Andrew Kaner c/o Electromatic a/k/a Electromatic Equip’t” as the registrant and there was no other evidence in the record to suggest that the respondent was commonly known by the domain names in dispute). The WHOIS information of record identifies the registrant as “Host Master/1337 Services LLC,” and no other information in the record suggests that Respondent is commonly known by the disputed domain name. The Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).
Complainant claims that Respondent does not use the disputed domain name for any bona fide offering of goods or services, nor for any legitimate noncommercial or fair use but rather hosts a defamatory website featuring pornographic content with the intention to humiliate Complainant. Use of a confusingly similar domain name to host a complaint site does not necessarily confer rights or legitimate interest to a respondent under Policy ¶¶ 4(c)(i) and (iii). See Compagnie Generale des Matieres Nucleaires v. Greenpeace Int’l, D2001-0376 (WIPO May 14, 2001) (holding that the respondent’s showing that it “has a right to free speech and a legitimate interest in criticizing the activities of organizations like the Complainant . . . is a very different thing from having a right or legitimate interest in respect of [a domain name that is identical to Complainant’s mark]”). Further, displaying adult oriented material is not generally considered a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) and (iii). See Altria Group, Inc. and Altria Group Distribution Company v. xiazihong, FA1732665 (Forum July 7, 2017) (holding that “[u]se of a domain name to display adult-oriented images is not considered a bona fide offering of goods or services or a legitimate noncommercial or fair use under the Policy.”). Complainant provides screenshots from the resolving webpage showing the text “Welcome to Nick Goomber’s Website. I’m gay. That is all.” as well as lewd pornographic content. The Panel finds that this use is not a bona fide offering of goods or services per Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii) and Respondent has no rights or legitimate interests in respect of the domain name.
Complainant has proved this element.
Registration and Use in Bad Faith
Complainant argues that Respondent registered and uses the <nickgoomber.com> domain name in bad faith because Respondent disrupts Complainant’s business by hosting unprofessional content at the disputed domain under Complainant’s mark. Use of a disputed domain to compete with a complainant or otherwise disrupt its business is evidence of bad faith per Policy ¶ 4(b)(iii). See Mission KwaSizabantu v. Rost, D2000-0279 (WIPO June 7, 2000) (defining “competitor” as “one who acts in opposition to another and the context does not imply or demand any restricted meaning such as commercial or business competitor”); see also Gen. Media Commc’ns, Inc. v. Vine Ent., FA 96554 (Forum Mar. 26, 2001) (finding bad faith where a competitor of the complainant registered and used a domain name confusingly similar to the complainant’s PENTHOUSE mark to host a pornographic web site). Respondent uses the disputed domain name to host lewd pornographic content. Complainant argues that although Respondent’s identity cannot be determined, it is acting as a competitor to Complainant by potentially leading clients to not work with Complainant due to the content of the webpage associated with Complainant’s mark. This is evidence that Respondent registered and uses the disputed domain name in bad faith pursuant to Policy ¶ 4(b)(iii).
Respondent’s use of the <nickgoomber.com> domain name to defame Complainant suggests bad faith. While complaint sites are not forbidden under the Policy, misleading consumers as to the source of a confusingly similar domain in order to damage a complainant’s reputation is evidence of bad faith under Policy ¶ 4(a)(iii). See Diners Club Int’l, Ltd. v. Infotechnics Ltd., FA 169085 (Forum Aug. 20, 2003) (“Respondent may have the right to post criticism of Complainant on the Internet, however, Respondent does not have the right to completely appropriate Complainant’s registered trademark in a domain name in a way that will mislead Internet users as to the source or affiliation of the attached website.”). Complainant provides screenshots of the website resolving at the disputed domain. Complainant argues that Respondent’s sole purpose for registering the disputed domain name is to defame Complainant through the content hosted on the webpage. This is evidence of bad faith pursuant to Policy ¶4(a)(iii) and the Panel finds that Respondent registered and uses the domain name in bad faith.
Complainant has proved this element.
DECISION
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is ORDERED that the <nickgoomber.com> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Karl V. Fink (Ret.) Panelist
December 14, 2020
