Propulsiontalent.com

The timeline behind propulsiontalent.com

Registration, the decision and the archived record of what this domain actually displayed — from public RDAP and the Internet Archive.

Result of record. The panel's reasoning and decisive facts behind each element are in the Intelligence dossier below.

ARBITRATION AN D MEDIATION CENTER ADMINISTRATIVE PANEL DECISION Propulsion Talent LLC v. Design Company Case No. D2024-3309 1. The Parties Complainant is Propulsion Talent LLC, United States of America (“US”), represented by Manevitz Law Firm LLC, US. Respondent is Design Company, US. 2. The Domain Name and Registrar The disputed domain name <propulsiontalent.com> (the “Domain Name”) is registered with Name.com, Inc. (the “Registrar”). 3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 13, 2024. On August 13, 2024, the Center transmitted by email to the Registrar a request f or registrar verif ication in connection with the Domain Name. On August 13, 2024, the Registrar transmitted by email to the Center its verif ication response disclosing registrant and contact information for the Domain Name, which differed from the named Respondent (Redacted for Privacy) and contact information in the Complaint. The Center sent an email communication to Complainant on August 21, 2024, providing the registrant and contact information disclosed by the Registrar, and inviting Complainant to submit an amendment to the Complaint. Complainant f iled an amended Complaint on August 23, 2024. Respondent sent an email communication to the Center on August 21, 2024. The Center verif ied that the Complaint together with the amended Complaint satisfied the formal requirements of the Unif orm Domain Name Dispute Resolution Policy (the “Policy” o r “UDRP”), the Rules f or Unif orm Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules f or Unif orm Domain Name Dispute Resolution Policy (the “Supplemental Rules”). page 2 In accordance with the Rules, paragraphs 2 and 4, the Center formally notif ied Respondent of the Complaint, and the proceedings commenced on August 29, 2024. In accordance with the Rules, paragraph 5, the due date f or Response was September 18, 2024. Respondent did not submit any f o rmal response. Accordingly, the Center notif ied the commencement of the panel appointment process on September 19, 2024. The Center appointed Christopher S. Gibson as the sole panelist in this matter on September 25, 2024. The Panel f inds 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 In September 2023, Kate and John Johnston created Complainant, a professional recruitment firm specializing in executive level personnel search and acquisition. Complainant registered the Domain Name with GoDaddy on September 13, 2023. Shortly thereafter, Complainant hired Respondent for branding and digital design services. That relationship began on or about September 14, 2023. Within a f ew weeks, Complainant states there were mino r disagreements about billing and amounts due. Respondent then offered Complainant web services, f urther to which Respondent asked Complainant to transfer the Domain Name to Respondent. Complainant did so in mid- November 2023. In anticipation of those web services (including domain name management), Complainant paid to Respondent at least approximately USD 3,400. From the date of transf er through late January 2024, Complainant alleges there were ongoing difficulties in the service provided, including website downtime and similar service f ailures. Signif icantly, on December 13, 2023, without notice to Complainant and without authorization to do so, Complainant states Respondent f urther transf erred the Domain Name to the current Reg istrar. Complainant states that eventually the business relationship deteriorated beyond repair. On January 22, 2024, Complainant cancelled the services and demanded return of the Domain Name. Complainant claims Respondent agreed to return the Domain Name in exchange f or a payment f rom Complainant of USD 1,015. Complainant paid the demanded amount, but transfer of the Domain Name did not occur. Instead, Complainant claims Respondent demanded an additional payment of USD 2,585. That number was negotiated down to USD 1,800, and Complainant agreed to pay that amount, but required use of a domain name escrow service, which Respondent has ref used. Instead, Complainant alleges Respondent is holding the Domain Name hostage against further payments it feels it is owed, or perhaps as a simple matter of extortion, in an attempt to milk Complainant f or as much money as possible. Until recently, Respondent was maintaining a copy of Complainant’s website at the Domain Name, but has made it clear that any effort to reclaim the Domain Name will be met with retaliation. Complainant states Respondent recently changed the site so that the Domain Name lands on an “Account Suspended” page. The link f or “contact your hosting provider,” however, sends an email not to the hosting provider, but to Respondent. Respondent has since contacted Complainant to the ef f ect that the site could be restored f or a price. WhoIs records indicate the date of registration of the Domain Name with the Registrar is December 13, 2023. When the Panel tested the Domain Name for purposes of this case, the Panel f ound that it appears to link to Complainant’s website. page 3 5. Parties’ Contentions A. Complainant Complainant contends that it has satisfied each of the elements required under the Policy f or transf er of the Domain Name. Complainant further contends Respondent is using the Domain Name in an attempt either to resolve an unrelated dispute or to extort Complainant into paying f unds to Respondent. (i) Identical or conf usingly similar Complainant contends that is has common law rights in its PROPULSION TALENT trademark. Complainant argues it is well settled that it may rely on common law rig hts because it is in a jurisdiction (the US) that recognizes those rights. Complainant f urther explains that a mark that is inherently distinctive will support a claim of common law rights sufficient for the first element of the P olicy. Moreover, an “arb itrary” mark is a wo rd that is in common usage in the language, but is arbitrarily applied to the goods or services in question in such a way that it is does not suggest some aspect of the goods or services. Further, a word that suggests, but does not directly describe, some aspect of the goods or services f alls into the “suggestive” category. Complainant claims arbitrary and suggestive words used as marks are regarded as inherently distinctive and immediately serve as a legally recognized symbol of origin. The phrase PROPULSION TALENT f its precisely within this paradigm. The term PROPULSION is a word in common use in English, but is arbitrary when applied to Complainant’s services. The phrase overall is dominated by the PROPULSION element, but even considering the TALENT element – which suggests but does not directly describe an aspect of Complainant’s services – the phrase as a whole is clearly inherently distinctive. Complainant submits there is conflicting authority as to whether or not common law trademark rights f or the purposes of the f irst element of the Policy require use in commerce. Assuming such use is required, Complainant submits there is ample evidence of prior and ongoing use in commerce of the PROPULSION TA LE NT mark by Complainant. Complainant has prominently displayed the mark on invoices, f eatured it marketing materials, and incorporated it in various promotional efforts, thereby establishing its use in commerce. Complainant has submitted evidence to this ef f ect in this case. Further, Complainant urges that the Domain Name is not merely confusingly similar to Complainant’s trademark, but is identical to it, while the addition of the “.com” generic Top-Level Domain (“g TLD”) is disregarded for purposes of the f irst element of the Policy. (ii) Rights or legitimate interests Complainant states that Respondent is completely without any rights or legitimate interests in the Domain Name. Except as discussed above, Complainant has not authorized or consented to Respondent’s use of the mark, nor is Respondent affiliated in any way with Complainant. Any such authority or consent which may have been implied at the beginning of the business relationship has been revoked by Complainant, and cannot be relied on by Respondent in def ense of this element of the Policy. Complainant further states Respondent is not and has never been commonly known (or ref erred to at all) by the phrase PROPULSION TALENT. Further, Respondent cannot claim to be making a noncommercial or fair use of the Domain Name. Because Respondent is not actually offering any goods or services in connection with the Domain Name, Respondent cannot pretend to be making a bona fide offering in that regard. Respondent was supposed to accept the transfer of the Domain Name on behalf of and for the benefit of Complainant, but instead Respondent transferred it improperly and is holding it hostage in order to extort money f rom Complainant. Those f acts are sufficient to establish a prima facie case that Respondent has no rights or legitimate interests in the Domain Name. page 4 In sum, Complainant contends that Respondent is without any rights or legitimate interests in the Domain Name, and Respondent is naked of any of the def enses noted under paragraph 4(c) of the Policy. (iii) Registered and used in bad f aith Complainant submits that although the Policy sets f orth examples of bad f aith registration and use, those examples are merely illustrative and non-exclusive. Here, Complainant argues Respondent’s bad f aith is obvious. First, Complainant states that while there is no dispute the November 2023 transf er of the Domain Name f rom Complainant to Respondent was made pursuant to an agreement between the Parties, the issue is more complicated. Complainant claims the date of transf er that should be used f or a determination of bad f aith registration is not the November transf er of the Domain Name, but instead the unauthorized transf er by Respondent from GoDaddy to a different registrar – the Registrar in this case – in December 2023. This transfer by Respondent in December 2023 was without notice to or authorization from Complainant; it was not a mere renewal or extension of the November 2023 transf er; instead, it was an intentional ef f ort by Respondent to f urther remove the Domain Name f rom the control of Complainant. Complainant argues that without its knowledge (and against Complainant’s interests), Respondent effected the equivalent of a third-party transf er. Moreover, by the time Respondent hijacked the Domain Name in December 2023, there had already been some disputes with Complainant as to f ees and services. Thus, Complainant alleges that at the time of the December 2023 registration, Respondent clearly intended to use that registration as leverage against Complainant, either to extort funds or to force Complainant to continue to use Respondent’s services. Respondent’s intention at the time of registration was to hijack and then hold hostage the Domain Name, and such intent constitutes registration in bad f aith under the Policy. Further, Respondent’s refusal to transfer the Domain Name to Complainant as required by the explicit terms of its agreement with Complainant, and the subsequent indication that it would transfer the Domain Name in return f or a payment of USD 2,585, taken together, clearly indicate that Respondent is holding the Domain Name hostage and is seeking the payment of a ransom f rom Complainant, thereby using the Domain Name in bad f aith. Respondent is currently holding the Domain Name in direct contravention of its agreement to return it to Complainant, as well as in direct contravention of its obligations under the initial agreements. Complainant has already paid the amount demanded, and even that amount was questionably extortionist in light of prior payments. Respondent is simply holding the Domain Name in an effort to mulct Complainant f or more f unds. That behavior is clearly use of the Domain Name in bad f aith. Finally, Complainant observes the Domain Name currently resolves to an “Account Suspended” landing page. Complainant argues it is well-established that resolution to such a page can be considered use of the Domain Name in bad f aith. There is no plausible good faith use by Respondent of the Domain Name, and in that context an “Account Suspended” page is bad f aith use under the third element of the Policy. In conclusion, Complainant submits Respondent’s actions clearly constitute bad faith registration and use of the Domain Name under the third element of the Policy. B. Respondent Respondent did not formally reply to Complainant’s contentions. However, on August 21, 2024, Respondent sent the f ollowing message: “What is the complaint about? Where can i see the details?”. As reported above, despite notice of the Complaint being provided to the Respondent on August 29, 2024, no f urther communications were received f rom the Respondent. page 5 6. Discussion and Findings Under paragraph 4(a) of the Policy, to succeed Complainant must demonstrate that: (i) the Domain Name is identical or confusingly similar to a trademark or service mark in which Complainant has rights; (ii) Respondent has no rights or legitimate interests in respect of the Domain Name; and (iii) the Domain Names has been registered and is being used in bad f aith. A. Identical or Confusingly Similar It is well accepted that the f irst element f unctions primarily as a standing requirement. The standing (or threshold) test for confusing similarity involves a reasoned but relatively straightf orward comparison between Complainant’s trademark and the Domain Name. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition, (“WIPO Overview 3.0 ”), section 1.7. Here, the Panel f inds that Complainant has established unregistered trademark or service mark rights f or the purposes of the Policy. WIPO Overview 3.0 , section 1.3. Complainant has submitted evidence to demonstrate commercial use of its PROPULSION TALENT mark within the prof essional recruitment f ield. Moreover, the Domain Name is identical to Complainant’s PROPULSION TALENT mark for the purposes of the Policy. WIPO Overview 3.0, section 1.7. According, the Panel f inds the f irst element of the Policy has been established. B. Rights or Legitimate Interests Paragraph 4(c) of the Policy provides a list of circumstances in which Respondent may demonstrate rights or legitimate interests in the Domain Name. Although the overall burden of proof in UDRP proceedings is on Complainant, panels have recognized that proving a respondent lacks rights or legitimate interests in a domain name may result in the difficult task of “proving a negative”, requiring information that is often primarily within the knowledge or control of the respondent. As such, where a complainant makes out a prima f acie case that the respondent lacks rights or legitimate interests, the burden of production on this element shifts to the respondent to come f orward with relevant evidence demonstrating rights or legitimate interests in the domain name (although the burden of proof always remains on the complainant). If the respondent fails to come f orward with such relevant evidence, the complainant is deemed to have satisfied the second element. WIPO Overview 3.0 , section 2.1. Having reviewed the available record, the Panel f inds Complainant has established a prima f acie case that Respondent lacks rights or legitimate interests in the Domain Name, while Respondent has f ailed to rebut Complainant’s prima facie showing. Here, Respondent is not commonly known by the Domain Name or the PROPULSION TALENT mark. Further, there is no indication that Respondent is making a nonco mmercial or fair use of the Domain Name, or using it in relation to a bona fide offering of goods or services. Instead, it appears that Respondent registered the PROPULSION TALENT mark in December 2023 (as further described under the bad f aith element below) to obtain control over the Domain Name and hold it hostage in order to mulct money f rom Complainant. As stated in Pitc htime, Inc. v . Constantine Zamiesov (a/k/a Kostiantine Zamiesov, a a/k/a Kostiantyn Zamiesov) d/b/a Cruxlab, Inc., Cruxlab, Codevirium, WIPO Case No. D2019-0511 : “Whatever the dispute Respondent might have with Complainant does not entitle Respondent to hold Complainant’s property as ransom in order to secure the payment of an alleged debt. To the extent Respondent has a legitimate claim against Complainant f or an alleged debt, such belongs in a different forum. Simply put, Respondent’s use of the disputed domain page 6 names to secure the payment of an alleged debt does not support a f inding that Respondent has rights or legitimate interests in the disputed domain names.” (Citing Athena Infonomics India Private Limited v. Registration Private, Domains By Proxy, LLC, Renji Mathew, WIPO Case No . D2017-1779 . In the f ace of these allegations by Complainant, Respondent has f ailed to submit any f o rmal response. Accordingly, the Panel f inds the second element of the Policy has been established. C. Registered and Used in Bad Faith The third element of paragraph 4(a) of the Policy requires Complainant demonstrate that Respondent registered and is using the Domain Name in bad faith. WIPO Overview 3.0 , section 3.1, states, “bad faith under the UDRP is broadly understood to occur where a respondent takes unf air advantage of or otherwise abuses a complainant’s mark”. Paragraph 4(b) of the Policy sets out a list of non-exhaustive circumstances that may indicate that a domain name was registered and used in bad faith, but other circumstances may be relevant in assessing whether a respondent’s registration and use of a domain name is in bad f aith. WIPO Overview 3.0, section 3.2.1. Here, the Panel determines that Respondent registered and is using the Domain Name in bad f aith. As explained by Complainant, Respondent, who was in a contractual relationship with Complainant that included domain name management services, “ re-registered” the Domain Name in December 2023 without notice to or authorization from Complainant. There is no indication that this new registration was done f or any purpose in support of Respondent’s services for Complainant. The evidence submitted by Complainant suggests that it is more likely than not Respondent registered the Domain Name so that Respondent could secure additional control over the Domain Name and use that registration as leverage against Complainant, either to extort f unds or f orce Complainant to continue to use Respondent’s services. The evidence f rom the exchange of text messages between the Parties, where Respondent is seeking additional money after Complainant had already made a payment, supports this view, where Respondent stated “[b]ut if you take a dif f erent route [other than paying additional monies], legal actions or anything, then things will be very dif f icult[,] that I already know.” Thus, the evidence suggests that the Domain Name was registered by Respondent in December 2023 in an unauthorized manner, and is now being used by Respondent f or bad f aith purposes. Respondent’s unauthorized registration, and its refusal to transfer the Domain Name to Complainant as required by the terms of its agreement with Complainant, and the subsequent requests f or repeated sums of money, even af ter Complainant had already paid certain sums, would appear to indicate that “Respondent is, in effect, holding the disputed domain name ‘hostage’ and is seeking the payment of a ‘ransom’ f ro m the Complainant . . . [and] is using the disputed domain name in bad faith.” See Rainbow Play Systems, Inc. v. Lisa Devenish, Freeplay Pty. Ltd., WIPO Case No . DAU2015-0035 ; Pitc htime v. Constantine Zamiesov (a/k/a Kostiantine Zamiesov, a a/k/a Kostiantyn Zamiesov) d/b/a Cruxlab, Inc., Cruxlab, Codevirium, WIPO Case No . D2019-0511. The Panel also observes that Respondent appears to be switching the content of the website to which the Domain Name resolves, from an “Account Suspended” page prior to the filing of the Complaint in this case, to re-activating the website to resolve to Complainant’s website after this case arose. In the context of this case, these actions are further evidence of bad faith and the Respondent’s control over the Domain Name represents an ongoing implied threat to the Complainant. See Confederation Nationale du Credit Mutuel v. Diego Christian, et. al., WIPO Case No . D2023-0197 . Accordingly, the Panel f inds that Complainant has established the third element of the Policy. page 7 7. Decision For the f oregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the Domain Name <propulsiontalent.com> be transf erred to Complainant. /Christopher S. Gibson/ Christopher S. Gibson Sole Panelist Date: October 27, 2024

Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.