Purnailreviews.net

The timeline behind purnailreviews.net

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.

DECISION Craig Hornung / Vanguard Healthcare Products v. ROBERT RAN / ROBERT Claim Number: FA1504001615723 PARTIES Complainant is Craig Hornung / Vanguard Healthcare Products (“Complainant”), represented by Cody James Naccarato, New York, USA. Respondent is ROBERT RAN / ROBERT (“Respondent”), Illinois, USA. REGISTRAR AND DISPUTED DOMAIN NAME The domain name at issue is <purnailreviews.net>, registered with ENOM, 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. The Honourable Neil Anthony Brown QC as Panelist. PROCEDURAL HISTORY Complainant submitted a Complaint to the Forum electronically on April 22, 2015; the Forum received payment on April 27, 2015. On April 22, 2015, ENOM, INC. confirmed by e-mail to the Forum that the <purnailreviews.net> domain name is registered with ENOM, INC. and that Respondent is the current registrant of the name. ENOM, INC. has verified that Respondent is bound by the ENOM, 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 April 29, 2015, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 19, 2015 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@purnailreviews.net. Also on April 29, 2015, 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 May 27, 2015, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed The Honourable Neil Anthony Brown QC 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 made the following contentions. Complainant uses the PURNAIL mark in connection with its nail fungus treatment preparations. Complainant has registered the PURNAIL mark with the likes of the United States Patent and Trademark Office (“USPTO”) (Reg. No. 3,961,384, Registered May 17, 2011), establishing its rights in the mark. Respondent’s <purnailreviews.net> domain name is confusingly similar to the PURNAIL mark as it incorporates the mark entirely and merely adds the generic term “reviews” and the generic top-level domain (“gTLD”) “.net.” Respondent has no rights or legitimate interests in the <purnailreviews.net> domain name. Respondent is not commonly known by the disputed domain name. Further, Respondent is not making a bona fide offering of goods or services or a legitimate noncommercial or fair use. Rather, Respondent’s only goal is to disparage Complainant and damage the value of the PURNAIL mark. Respondent is attempting to disrupt Complainant’s business in bad faith per Policy ¶ 4(b)(iii). B. Respondent Respondent failed to submit a Response in this proceeding. FINDINGS 1. Complainant is a United States company engaged in the business of manufacturing and supplying nail fungus treatment preparations. 2. Complainant has registered the PURNAIL mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 3,961,384, Registered May 17, 2011). 3. Respondent registered the disputed domain name on June 14, 2011.It is used for the purpose of apparently seeking to denigrate Complainant and damage the value of the PURNAIL mark. 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(e), 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 (Nat. Arb. 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 first question that arises is whether Complainant has rights in a trademark or service mark on which it may rely. Complainant uses the PURNAIL mark in connection with its nail fungus treatment preparations. Complainant submits that it has registered the PURNAIL mark with the USPTO (Reg. No. 3,961,384, Registered May 17, 2011), arguing that its registration evinces rights in the mark per Policy ¶ 4(a)(i). Panels have agreed that a USPTO registration is sufficient in establishing Policy ¶ 4(a)(i) rights for a complainant. See AOL LLC v. Interrante, FA 681239 (Nat. Arb. Forum May 23, 2006) (finding that, where the complainant had submitted evidence of its registration with the USPTO, “such evidence establishes complainant’s rights in the mark pursuant to Policy ¶ 4(a)(i)”). Accordingly, the Panel finds that Complainant has rights in the PURNAIL mark under Policy ¶ 4(a)(i). The next question that arises is whether the disputed domain name is identical or confusingly similar to Complainant’s PURNAIL mark. Complainant argues that Respondent’s <purnailreviews.net> domain name is confusingly similar to the PURNAIL mark as it incorporates the mark entirely and merely adds the generic term “reviews” and the gTLD “.net.” Panels have agreed where such alterations to a mark are present, a finding of confusingly similarity is not negated if otherwise made out. See Warner Bros. Entm’t Inc. v. Rana, FA 304696 (Nat. Arb. Forum Sept. 21, 2004) (finding that the addition of the generic term “collection” to Complainant’s HARRY POTTER mark failed to distinguish the domain name from the mark); see also Katadyn N. Am. v. Black Mountain Stores, FA 520677 (Nat. Arb. Forum Sept. 7, 2005) (“[T]he addition of the generic top-level domain (gTLD) “.net” is irrelevant for purposes of determining whether a domain name is identical to a mark.”). Therefore, the Panel agrees that the <purnailreviews.net> domain name is confusingly similar to the PURNAIL mark under Policy ¶ 4(a)(i). Complainant has thus made out the first of the three elements that it must establish. Rights or Legitimate Interests It is now well established that 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), and then the burden shifts to Respondent to show it does have rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name); see also AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006) (“Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.”). The Panel finds that Complainant has made out a prima facie case that arises from the following considerations: (a) Respondent has chosen to take Complainant’s PURNAIL trademark and to use it in its domain name, adding the generic word “reviews”; (b) Respondent uses the disputed domain name to resolve to a website that disparages Complainant and potentially damages the value of the PURNAIL mark and product; (c) Respondent has engaged in these activities without the consent or approval of Complainant; (d)Complainant contends that Respondent has no rights or legitimate interests in the <purnailreviews.net> domain name. The Panel agrees that Respondent is not commonly known by the disputed domain name as there seems to be neither a basis in the available evidence, nor a response from Respondent which would substantiate such a finding under Policy ¶ 4(c)(ii). See Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003) (stating “nothing in [the respondent’s] WHOIS information implies that [the respondent] is ‘commonly known by’ the disputed domain name” as one factor in determining that Policy ¶ 4(c)(ii) does not apply); (e) Further, Complainant argues that Respondent is not making a bona fide offering of goods or services or a legitimate noncommercial or fair use. Rather, Complainant asserts that Respondent’s only goal is to disparage Complainant and damage the value of the PURNAIL mark and product. As the domain name and details of its registration are in evidence, the Panel has examined the website to which the domain name resolves and notes that the website disparages Complainant and the product in question. The Panel therefore agrees that Complainant has presented sufficient information to establish Respondent’s failure to make a bona fide offering of goods or services per Policy ¶ 4(c)(i) or legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See eBay Inc. v. Hong, D2000-1633 (WIPO Jan. 18, 2001) (stating that the respondent’s use of the complainant’s entire mark in domain names makes it difficult to infer a legitimate use). All of these matters go to make out the prima facie case against Respondent. As Respondent has not filed a Response or attempted by any other means to rebut the prima facie case against it, the Panel finds that Respondent has no rights or legitimate interests in the disputed domain name. Complainant has thus made out the second of the three elements that it must establish. Registration and Use in Bad Faith It is clear that to establish bad faith for the purposes of the Policy, Complainant must show that the disputed domain name was registered in bad faith and has been used in bad faith. It is also clear that the criteria set out in Policy ¶ 4(b) for establishing bad faith are not exclusive, but that Complainants in UDRP proceedings may also rely on conduct that is bad faith within the generally accepted meaning of that expression. Having regard to those principles, the Panel finds that the disputed domain name was registered and used in bad faith. That is so for the following reasons. First, Complainant’s argument is essentially that Respondent is using the domain name to divert Complainant’s customers with false information. The Panel has examined the website to which the domain name resolves and finds that Complainant’s allegation is in substance correct, for the website, among other statements to the effect that Complainant’s product is a “scam” and does not work, urges potential users, somewhat curiously, to go to Complainant’s website to buy the product. The Panel’s reading of the website as a whole is that the internet user may well find it very confusing. On the one hand it certainly contains derogatory content which one would think would deter and is designed to deter at least some potential users from buying the product and divert them away from buying it. It states that “…(t)he combined power of these two antifungal ingredients proves to be a huge plus point for the product…”, but that there are “…hundreds of negative Purnail reviews and testimonials found on the net…”, that “…(t)he product is manufactured by a company that is not very well known…” and that “…no benefit has been observed by many users.”.On the other hand, the website then goes on to say that there are “duplicate imitations of the original product that fail to deliver positive results…” and , in effect, that these imitations should be avoided. It thus specifically states that “… it’s important to know the right source to buy Purnail to stay immune from scams.” The solution to this quandary is then said to be that: “To buy Purnail in UK, USA, Canada, New Zealand (NZ), Singapore, South Africa and other parts of the world, one can visit the company’s official site, http://www.purnail.com.” Accordingly, if users follow the advice of Respondent, they would approach Complainant through its website, but already having been told by the website that the product was a “scam” and with that notion in their minds because of the contents of the website. This would clearly be a matter of concern to potential customers giving rise to confusion and the Panel takes the view that the demonstrated intention to cause such confusion is an act of bad faith, either coming within the terms of Policy ¶ 4(b)(iv) or within the ordinarily accepted meaning of the expression bad faith. Secondly, the above analysis shows that the facts of the case bring it within Policy ¶ 4(b)(iii), as the effect of Respondent’s conduct must be to disrupt Complainant’s business, creating, as it does, doubt in the mind of the potential user whether to buy the product or not . As Respondent casts his net widely by addressing himself to potential users in “UK, USA, Canada, New Zealand (NZ), Singapore, South Africa and other parts of the world…”, the Panel draws the inference that Respondent’s primary intention in registering the domain name and using it was to disrupt Complainant’s business and cause trouble for it by creating confusion in the minds of potential users not only in the United States but internationally. Further, as noted above, the Panel is able to consider that Respondent’s bad faith may be demonstrated by other factors considered under the totality of the evidence. Accordingly, in addition and having regard to the totality of the evidence, the Panel finds that, in view of Respondent’s registration of the disputed domain name using the PURNAIL mark and his use of the domain name in the manner described since the registration, Respondent registered and used the disputed domain name in bad faith within the generally accepted meaning of that expression. Complainant has thus made out the third of the three elements that it must establish. DECISION Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED. Accordingly, it is Ordered that the <purnailreviews.net> domain name be TRANSFERRED from Respondent to Complainant. The Honourable Neil Anthony Brown QC Panelist Dated: May 28, 2015 Click Here to return to the main Domain Decisions Page. Click Here to return to our Home Page

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