If you’ve lost 46 out of 47 UDRP cases, odds are that you will lose the 48th.
In the case of the domain PaulLoebach.com, the Respondent was exposed as a serial registrant of domains involving trademarks or other established rights.
The UDRP was filed by ESQwire.com on behalf of their client, Paul Loebach. As a professional, Mr. Loebach operated the domain from 2008 to 2022 for his business portal when he accidentally let the domain lapse; it was promptly picked up by the Respondent.
The sole panelist at the Forum (NAF) found no lawful reasons that the Respondent registered or used the domain; it was all done in bad faith:
These circumstances, together with Complainant’s assertions, are sufficient to constitute a prima facie showing of absence of rights or legitimate interests in respect of the domain name on the part of Respondent, who appears to have a history of cybersquatting.
Final decision: Transfer the domain name PaulLoebach.com to the Complainant.
Paul Loebach v. Nanci Nette
Claim Number: FA2302002031225
PARTIES
Complainant is Paul Loebach (“Complainant”), represented by Jason Schaeffer of ESQwire.com, P.C. The Domain Name Law Firm, New Jersey, USA. Respondent is Nanci Nette (“Respondent”), USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is paulloebach.com, registered with UdomainName.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.
Alan L. Limbury, as Panelist.
PROCEDURAL HISTORY
Complainant submitted a Complaint to Forum electronically on February 9, 2023. Forum received payment on February 9, 2023.
On February 16, 2023, UdomainName.com LLC confirmed by e-mail to Forum that the paulloebach.com domain name is registered with UdomainName.com LLC and that Respondent is the current registrant of the name. UdomainName.com LLC has verified that Respondent is bound by the UdomainName.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 February 20, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 13, 2023 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@paulloebach.com. Also on February 20, 2023, 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 March 21, 2023, 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
For more than two decades, Complainant has extensively used his personal name in a commercial context to develop, create, sell and promote furniture and industrial design products. Complainant has common law trademark rights in the PAUL LOEBACH mark. The paulloebach.com domain name is identical and confusingly similar to Complainant’s PAUL LOEBACH mark.
Respondent has no rights or legitimate interests in the paulloebach.com domain name, which Complainant inadvertently allowed to lapse. Respondent is not commonly known by the domain name; is not using the domain name in connection with any bona fide offering of goods and services or for any legitimate or fair use; and is diverting consumers to its website for commercial gain using pay-per-click links.
Based on a review of domain name decisions associated with Nanci Nette, it appears that Respondent has a history of abusive domain name registrations with at least 47 UDRP cases filed against Respondent, 46 of which were decided in the respective complainant’s favour. See https://udrp.tools/?s=4d725d93. While every case should be decided on its own merit, this evidence strongly indicates that Respondent knowingly targets parties to take advantage of trademarks and misuses and profits from the traffic of unsuspecting consumers to Respondent’s websites.
Respondent registered the paulloebach.com domain name in bad faith with actual knowledge of Complainant’s rights in the PAUL LOEBACH mark and uses it in bad faith to create a likelihood of confusion by diverting users seeking information about Complainant to Respondent’s website, to profit off them through pay-per-click revenue.
B. Respondent
Respondent failed to submit a Response in this proceeding.
FINDINGS
Complainant has established all the elements entitling him to relief.
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, Paul Loebach, a furniture and industrial designer since 2002, has shown that, through extensive use and public recognition, he has common law trademark rights in his personal name. The Panel finds Respondent’s paulloebach.com domain name to be identical to Complainant’s PAUL LOEBACH mark because, omitting the space, it includes the mark in its entirety. The inconsequential generic top-level domain (“gTLD”) “.com” may be ignored.
Complainant has established this element.
Rights or Legitimate Interests
Paragraph 4(c) of the Policy sets out three illustrative circumstances as examples which, if established by Respondent, shall demonstrate rights to or legitimate interests in the domain name for purposes of paragraph 4(a)(ii) of the Policy, i.e.
(i) before any notice to Respondent of the dispute, the use by Respondent of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) Respondent (as an individual, business or other organization) has been commonly known by the domain name, even if Respondent has acquired no trademark or service mark rights; or
(iii) Respondent is making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert customers or to tarnish the trademark or service mark at issue.
The paulloebach.com domain name was initially registered by Complainant and was used for Complainant’s website from 2008 to 2022, promoting PAUL LOEBACH branded products, designs and works and Complainant’s speaking engagements and museum and gallery placements. The registration was inadvertently allowed to lapse in September 2022 and was soon thereafter registered by Respondent. It resolves to a website with pay-per-click links unrelated to Complainant or his business.
These circumstances, together with Complainant’s assertions, are sufficient to constitute a prima facie showing of absence of rights or legitimate interests in respect of the domain name on the part of Respondent, who appears to have a history of cybersquatting. The evidentiary burden therefore shifts to Respondent to show that she does have rights or legitimate interests in the paulloebach.com domain name. See JUUL Labs, Inc. v. Dryx Emerson / KMF Events LTD, FA1906001849706 (Forum July 17, 2019). Respondent has made no attempt to do so.
The Panel finds that Respondent has no rights or legitimate interests in respect of the domain name.
Complainant has established this element.
Registration and Use in Bad Faith
Paragraph 4(b) of the Policy sets out four illustrative circumstances, which, though not exclusive, shall be evidence of the registration and use of the domain name in bad faith for purposes of paragraph 4(a)(iii) of the Policy, including:
(iv) by using the domain name, Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website or other on-line location, by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website or location or of a product or service on its website or location.
The circumstances set out above in relation to the second element satisfy the Panel that Respondent was fully aware of Complainant’s PAUL LOEBACH mark when Respondent registered the paulloebach.com domain name and that Respondent has intentionally attempted to attract, for commercial gain, Internet users to Respondent’s website, by creating a likelihood of confusion with Complainant’s mark as to the source of Respondent’s website. This demonstrates registration and use in bad faith to attract users for commercial gain under Policy ¶ 4(b)(iv).
Complainant has established 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 paulloebach.com domain name be TRANSFERRED from Respondent to Complainant.
Alan L. Limbury, Panelist
Dated: March 22, 2023.
