Westmore · UDRP DecisionVectortong.com
The Panel ordered transfer of <vectortong.com>. It found the domain identical to Complainant’s registered VECTORTONG mark, found no rights or legitimate interests because Respondent was unauthorized and used the domain to divert consumers, and concluded that Respondent targeted the distinctive mark and used the domain for commercial gain through likely confusion under Policy paragraph 4(b)(iv).
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This decision illustrates a straightforward exact-match trademark case in which prior registered rights, commercial diversion, and the absence of a substantive response combined to establish all three UDRP elements. The Panel’s bad-faith analysis focused specifically on confusion-based commercial attraction under paragraph 4(b)(iv).
Result of record. The panel's reasoning and decisive facts behind each element are in the Intelligence dossier below.
WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION J.B.S. Cranes & Accessories, Inc. v. Douglas Verenski, Hunter Lift, Ltd Case No. D2014-1227 1. The Parties Complainant is J.B.S. Cranes & Accessories, Inc. of McMurray, Pennsylvania, United States of America (“US”), represented by Steptoe & Johnson LLP, US. Respondent is Douglas Verenski, Hunter Lift, Ltd of North Lima, Ohio, US. 2. The Domain Name and Registrar The disputed domain name <vectortong.com> (the “Domain Name”) is registered with Tucows Inc. (the “Registrar”). 3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 16, 2014. On July 17, 2014, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On July 17, 2014, the Registrar transmitted by email to the Center its verification response confirming that Respondent is listed as the registrant and providing the contact details. In response to a notification by the Center that the Complaint was administratively deficient, Complainant filed the annexes to the Complaint on July 30, 2014. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”). In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified Respondent of the Complaint, and the proceedings commenced on July 31, 2014. In accordance with the Rules, paragraph 5(a), the due date for Response was August 20, 2014. The Center received an informal communication from Respondent on August 19, 2014, which the Center replied on August 20, 2014, and invited Complainant to consider requesting a suspension of the proceedings to explore a possible settlement between the parties. Respondent did not submit any further formal response and the Center did not receive any confirmation from Complainant regarding a potential suspension. Accordingly, the Center notified the commencement of the panel appointment process on August 21, 2014. The Center appointed Christopher S. Gibson as the sole panelist in this matter on August 28, 2014. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7. 4. Factual Background Complainant owns US trademark registration No. 3,653,867 for the mark VECTORTONG, used in connection with a hoist operated below the hook lifting device for transporting loads. The mark was registered on July 14, 2009, and the date of first use was October 29, 2008. The Domain Name <vectortong.com> was registered on January 27, 2011. 5. Parties’ Contentions A. Complainant (i) Identical or confusingly similar to a trademark Complainant states that the Domain Name registered by Respondent, <vectortong.com>, is identical in sound, sight, and meaning to Complainant’s trademark, VECTORTONG, and as such is likely to cause consumer confusion. (ii) Rights or legitimate interests in respect of the Domain Name Complainant contends that there is no evidence that Respondent’s use of the Domain Name or a name corresponding to the Domain Name is offered in connection with a bona fide offering of goods or services. There likewise is no evidence that Respondent has been commonly known by the Domain Name, or that Respondent has acquired any trademark or service mark rights in the name. Respondent is not making a legitimate noncommercial or fair use of the Domain Name, but instead is providing a website that diverts consumers to offer Respondent’s goods or services. (iii) Registered and used in bad faith Complainant argues that in using the Domain Name, Respondent intentionally attempted to attract for commercial gain, Internet users to Respondent’s website by creating a likelihood of confusion with Complainant’s VECTORTONG mark as to the source, sponsorship, affiliation, or endorsement of the Respondent’s website or of a product or service on Respondent’s website. Complainant states that Respondent registered the Domain Name in order to disrupt the business of a competitor. Complainant submitted evidence of the home page from Respondent’s site. B. Respondent Respondent did not provide any substantive response to Complainant’s contentions. 6. Discussion and Findings In order to succeed in its Complaint, Complainant must demonstrate that the three elements enumerated in paragraph 4(a) of the Policy have been satisfied. These elements are that: (i) the Domain Name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; (ii) Respondent has no rights to or legitimate interests in respect of the Domain Name; and (iii) Respondent has registered and is using the Domain Name in bad faith. A. Identical or Confusingly Similar The Panel must first determine whether the Domain Name is identical or confusingly similar to a trademark in which Complainant has rights. Complainant has submitted evidence to show that it owns a trademark registration in the US for its VECTORTONG mark, which has been used by Complainant in commerce since 2008. The Domain Name is identical to Complainant’s VECTORTONG mark, except for the “.com” top-level suffix. The applicable top-level suffix in a domain name ( e.g., “.com”) is usually to be disregarded under the confusing similarity test, as it is a technical requirement of registration. WIPO Overview of WIPO Panel Views on Selected UDRP Questions , Second Edition (“WIPO Overview 2.0”), paragraph 1.2. Accordingly, the Panel concludes that the Domain Name is identical to Complainant’s VECTORTONG trademark. B. Rights or Legitimate Interests Pursuant to paragraph 4(a)(ii) of the Policy, Complainant must prove that Respondent has no rights or legitimate interests in respect of the Domain Name. A complainant is normally required to make out a prima facie case that a respondent lacks rights or legitimate interests in a domain name. Once such prima facie case is made, the respondent carries the burden of demonstrating rights or legitimate interests. If the respondent fails to do so, a complainant is deemed to have satisfied paragraph 4(a)(ii) of the policy. In this case, Complainant has established a prima facie case. Complainant did not authorize Respondent to use the VECTORTONG mark in the Domain Name. Moreover, there is no evidence that Respondent has been commonly known by the Domain Name, or that Respondent has acquired any trademark rights in the name. Further, Respondent has not used the Domain Name in connection with a bona fide offering of goods or services, but instead is using it to divert consumers from Complainant’s website to Respondent’s site. In response to these points, Respondent has failed to submit a Response to explain its registration of the Domain Name. On this showing, there is no indication that Respondent has acquired any rights or legitimate interests in respect of the Domain Name. Accordingly, the Panel finds that Complainant has satisfied the second element of the Policy. C. Registered and Used in Bad Faith The third element of paragraph 4(a) of the Policy requires that Complainant demonstrate that Respondent registered and is using the Domain Name in bad faith. In this case, the Panel is of the view that Respondent was likely targeting Complainant’s VECTORTONG mark when it registered the Domain Name. Complainant’s VECTORTONG mark is distinctive and the Domain Name is identical to it. Respondent has not responded in this case in such a manner to provide any plausible reason for why it registered the Domain Name. Furthermore, under the Policy, paragraph 2, Respondent represented and warranted that “to your knowledge, the registration of the domain name will not infringe upon or otherwise violate the rights of any third party” and “[i]t is your responsibility to determine whether your domain name registration infringes or violates someone else’s rights.” The Panel also determines, on the balance of the evidence, that Respondent registered and is using the Domain Name for the bad faith purpose of using it to attract, for commercial gain, Internet users to Respondent’s website, by creating a likelihood of confusion with Complainant’s VECTORTONG mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website or of a product or service on its website. Policy paragraph 4(b)(iv). The Panel therefore concludes that Respondent registered and is using the Domain Name in bad faith. Accordingly, the Panel finds that Complainant has satisfied the third element of the Policy. 7. Decision For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the Domain Name <vectortong.com> be transferred to Complainant. Christopher S. Gibson Sole Panelist Date: September 14, 2014
Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.
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