Viking-repair-los-angeles.com + 6 more domains

The timeline behind viking-repair-los-angeles.com

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

How each disputed name was decided in this proceeding.

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

DECISION Viking Range, LLC v. Serena Keltner / Seren Keltner / Appliance Repair 247 Claim Number: FA1610001698948 PARTIES Complainant is Viking Range, LLC (“Complainant”), represented by Benjamin W. Janke, Louisiana, United States. Respondent is Serena Keltner / Seren Keltner / Appliance Repair 247 (“Respondent”), California, United States. REGISTRAR AND DISPUTED DOMAIN NAMES The domain names at issue are <viking-repair-los-angeles.com>, <viking-appliance-experts.com>, <viking-professional-service.com>, <viking-appliances-service-repair.com>, <viking-appliance-repair.com>, <viking-service-ny.com>, and <viking-appliances-repair.com>, registered with GoDaddy.com, LLC. PANEL The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding. John J. Upchurch as Panelist. PROCEDURAL HISTORY Complainant submitted a Complaint to the Forum electronically on October 19, 2016; the Forum received payment on October 19, 2016. On October 20, 2016, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <viking-repair-los-angeles.com>, <viking-appliance-experts.com>, <viking-professional-service.com>, <viking-appliances-service-repair.com>, <viking-appliance-repair.com>, <viking-service-ny.com>, and <viking-appliances-repair.com> domain names are registered with GoDaddy.com, LLC and that Respondent is the current registrant of the names. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.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 October 21, 2016, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 10, 2016 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@viking-repair-los-angeles.com, postmaster@viking-appliance-experts.com, postmaster@viking-professional-service.com, postmaster@viking-appliances-service-repair.com, postmaster@viking-appliance-repair.com, postmaster@viking-service-ny.com, postmaster@viking-appliances-repair.com. Also on October 21, 2016, 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 November 14, 2016, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed John J. Upchurch 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 names be transferred from Respondent to Complainant. PARTIES' CONTENTIONS A. Complainant’s Contentions 1. Complainant is a manufacturer of professional-grade ranges and other kitchen-related products for both residential and commercial use. Complainant has registered the VIKING mark with the United States and Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 1,437,211, registered Apr. 21, 1987), which demonstrates Complainant’s rights in its mark. See Compl., at Attached Ex. 2. The domain names are confusingly similar to Complainant’s mark as they wholly incorporate the mark and merely add generic and/or descriptive terms and the “.com” generic top-level domain (“gTLD”). 2. Respondent has no rights or legitimate interests in the domain names. Respondent is not commonly known by the VIKING mark, and Respondent has not at any time received a license or consent, express or implied, to use either the VIKING mark in a domain name or in any other manner. Further, Respondent is not using the domain names in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use. Rather, the websites located at the infringing domain names make explicit reference to Complainant and its products. Compare Compl., at Attached Ex. 3, with Compl., at Attached Ex. 4. 3. Respondent registered and is using the domain names in bad faith. First, Respondent uses the websites located at the domain names to pass itself off as Complainant. Id. Second, Respondent used a privacy shield in connection with the registration of the domain names. See Compl., at Attached Ex. 6. Third, Respondent failed to respond to Complainant’s cease and desist correspondence. See Compl., at Attached Ex. 5. Finally, because the websites located at the domain names make explicit reference to Complainant and its products, it is clear that Respondent registered the domain name with actual knowledge of Complainant’s mark and rights therein. B. Respondent’s Contentions 1. Respondent did not submit a response in this proceeding. FINDINGS 1. Respondent’s <viking-repair-los-angeles.com>, <viking-appliance-experts.com>, <viking-professional-service.com>, <viking-appliances-service-repair.com>, <viking-appliance-repair.com>, <viking-service-ny.com>, and <viking-appliances-repair.com> domain names are confusingly similar to Complainant’s VIKING mark. 2. Respondent does not have any rights or legitimate interests in the <viking-repair-los-angeles.com>, <viking-appliance-experts.com>, <viking-professional-service.com>, <viking-appliances-service-repair.com>, <viking-appliance-repair.com>, <viking-service-ny.com>, and <viking-appliances-repair.com> domain names. 3. Respondent registered or used the <viking-repair-los-angeles.com>, <viking-appliance-experts.com>, <viking-professional-service.com>, <viking-appliances-service-repair.com>, <viking-appliance-repair.com>, <viking-service-ny.com>, and <viking-appliances-repair.com> domain names in bad faith. 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 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 (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 Complainant is a manufacturer of professional-grade ranges and other kitchen-related products for both residential and commercial use. Complainant has registered the VIKING mark with the USPTO (e.g., Reg. No. 1,437,211, registered Apr. 21, 1987), which Complainant contends demonstrates its rights in the mark. See Compl., at Attached Ex. 2. The Panel finds that trademark registrations with the USPTO suffice to demonstrate a complainant’s rights in its mark for the purposes of Policy ¶ 4(a)(i). See Expedia, Inc. v. Tan, FA 991075 (Forum June 29, 2007) (“As the [Complainant’s] mark is registered with the USPTO, Complainant has met the requirements of Policy ¶ 4(a)(i).”). Accordingly, the Panel finds that Complainant has demonstrated its rights in its mark pursuant to Policy ¶ 4(a)(i). Complainant argues that the domain names are confusingly similar to Complainant’s mark as they wholly incorporate the mark and merely add generic and/or descriptive terms and the “.com” gTLD. The Panel notes that Respondent uses geographic terms such as “ny” and “los angeles” in its domain names. Panels have held that these changes do not serve to adequately distinguish a respondent’s domain name from a complainant’s mark under Policy ¶ 4(a)(i). See Am. Express Co. v. MustNeed.com, FA 257901 (Forum June 7, 2004) (finding the respondent’s <amextravel.com> domain name confusingly similar to Complainant’s AMEX mark because the “mere addition of a generic or descriptive word to a registered mark does not negate” a finding of confusing similarity under Policy ¶ 4(a)(i)); see also Dollar Fin. Grp., Inc. v. Jewald & Assocs. Ltd., FA 96676 (Forum Apr. 6, 2001) (“The addition of ‘US’ or ‘USA’ does not alter the underlying mark held by the complainant.”); see also Reese v. Morgan, FA 917029 (Forum Apr. 5, 2007) (finding that the mere addition of the generic top-level domain “.com” is insufficient to differentiate a disputed domain name from a mark). Therefore, the Panel finds that Respondent’s disputed domain names are confusingly similar to Complainant’s mark under Policy ¶ 4(a)(i). Rights or Legitimate Interests Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain names 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 (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 (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.”). Complainant maintains that Respondent has no rights or legitimate interests in the domain names. According to Complainant, Respondent is not commonly known by the VIKING mark, and Respondent has not at any time received a license or consent, express or implied, to use either the VIKING mark in a domain name or in any other manner. The Panel notes that the WHOIS information merely lists “Serena Keltner / Seren Keltner / Appliance Repair 247” as registrant and that Respondent has failed to provide any evidence for the Panel’s consideration. See Compl., at Attached Exhibit A. As such, the Panel finds no basis in the available record to find Respondent commonly known by the domain names pursuant to Policy ¶ 4(c)(ii). See Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Forum July 17, 2006) (concluding that the respondent was not commonly known by the <coppertown.com> domain name where there was no evidence in the record, including the WHOIS information, suggesting that the respondent was commonly known by the disputed domain name). Complainant asserts that Respondent is not using the domain names in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use. Rather, Complainant argues that the websites located at the infringing domain names make explicit reference to Complainant and its products. Compare Compl., at Attached Ex. 3, with Compl., at Attached Ex. 4. Panels have decided that a respondent’s attempt, through a domain name, to pass itself off as a complainant is evidence that the respondent lacks rights and legitimate interests in the domain name. See Kmart of Mich., Inc. v. Cone, FA 655014 (Forum April 25, 2006) (The panel found the respondent’s attempt to pass itself of as the complainant was not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii) when the respondent used the disputed domain name to present users with a website that was nearly identical to the complainant’s website). The Panel agrees that Respondent has attempted to pass itself off as Complainant, and it finds that Respondent lacks rights and legitimate interests in the domain names. Registration and Use in Bad Faith Complainant argues that Respondent uses the websites located at the domain names to pass itself off as Complainant. Id. Panels have decided that such use of a domain name by a respondent is evidence of bad faith under Policy ¶ 4(b)(iv). See Am. Online, Inc. v. Miles, FA 105890 (Forum May 31, 2002) (“Respondent is using the domain name at issue to resolve to a website at which Complainant’s trademarks and logos are prominently displayed. Respondent has done this with full knowledge of Complainant’s business and trademarks. The Panel finds that this conduct is that which is prohibited by Paragraph 4(b)(iv) of the Policy.”). The Panel agrees that Respondent’s use of the domain names constitutes passing off, and it finds that Respondent registered and is using the domain names in bad faith, in violation of Policy ¶ 4(b)(iv). Complainant maintains that Respondent used a privacy shield in connection with the registration of the domain names. See Compl., at Attached Ex. 6. The consensus view amongst panels is that use of a privacy service, without more, cannot reach the threshold of bad faith registration and use. See WWF-World Wide Fund for Nature aka WWF International v. Moniker Online Services LLC and Gregory Ricks, D2006-0975 (WIPO November 1, 2006) (finding use of proxy registration service does not of itself indicate bad faith; there are many legitimate reasons for proxy registration services); see also Divex Limited v. ZJ, Sam Chang and Tim NG, D2007-0861 (WIPO September 21, 2007) (finding privacy services may be justified by the need to avoid spam and identity theft). However, the totality of the circumstances which surround a respondent’s engagement of a privacy service may give rise to a finding of bad faith registration and use. See, e.g., HSBC Finance Corporation v. Clear Blue Sky Inc. and Domain Manager, D2007-0062 (WIPO June 4, 2007) (finding a change of privacy service after notice of complaint indicative of bad faith); see also Sermo, Inc. v. CatalystMD, LLC, D2008-0647 (WIPO July 2, 2008) (stating that use of privacy shield can be “treated as evidence of bad faith . . . when serial registrants use privacy shields to mask each registrant’s actual date of registration”). Therefore, the Panel agrees that Respondent has utilized a privacy shield in a manner which materially adversely affects or obscures the facts of this proceeding, and it agrees that Respondent has registered and used the disputed domain names in bad faith under Policy ¶ 4(a)(iii). Complainant contends that Respondent failed to respond to Complainant’s cease and desist correspondence. See Compl., at Attached Ex. 5. Panels have held that a respondent’s failure to respond to a complainant’s cease and desist correspondence constitutes bad faith registration and use. See Guccio Gucci S.p.A. v. Domain Administrato - Domain Administrator, D2010-1589 (WIPO Nov. 3, 2010) (“The Panel also considers the failure of the Respondent to respond to the Complainant’s letters of demand and failure to file a Response to the Complaint further support an inference of bad faith.”). Therefore, the Panel concludes that Respondent has engaged in bad faith registration and use. Finally, Complainant argues that because the websites located at the domain names make explicit reference to Complainant and its products, it is clear that Respondent registered the domain names with actual knowledge of Complainant’s mark and rights therein. Panels have decided that a respondent demonstrated bad faith registration and use pursuant to Policy ¶ 4(a)(iii) where the respondent was well-aware of the complainant’s mark at the time the disputed domain name was registered. See Yahoo! Inc. v. Butler, FA 744444 (Forum Aug. 17, 2006) (finding bad faith where the respondent was “well-aware” of the complainant’s YAHOO! mark at the time of registration). The Panel finds Complainant’s contention sufficient to support a finding of actual knowledge, and it finds that Respondent engaged in bad faith registration under Policy ¶ 4(a)(iii). 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 <viking-repair-los-angeles.com>, <viking-appliance-experts.com>, <viking-professional-service.com>, <viking-appliances-service-repair.com>, <viking-appliance-repair.com>, <viking-service-ny.com>, and <viking-appliances-repair.com> domain names be TRANSFERRED from Respondent to Complainant. John J. Upchurch, Panelist Dated: November 28, 2016 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.