Kodak305.com

The timeline behind kodak305.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.

DECISION Eastman Kodak Company v. junxia yang / yangjunxia Claim Number: FA1901001827752 PARTIES Complainant is Eastman Kodak Company (“Complainant”), represented by Kristen M. Walsh of Nixon Peabody LLP, New York, USA. Respondent is junxia yang / yangjunxia (“Respondent”), China. REGISTRAR AND DISPUTED DOMAIN NAME The domain name at issue is <kodak305.com>, registered with Free Spirit Domains, 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. Richard Hill as Panelist. PROCEDURAL HISTORY Complainant submitted a Complaint to the Forum electronically on January 30, 2019; the Forum received payment on January 30, 2019. On January 31, 2019, Free Spirit Domains, LLC confirmed by e-mail to the Forum that the <kodak305.com> domain name is registered with Free Spirit Domains, LLC and that Respondent is the current registrant of the name. Free Spirit Domains, LLC has verified that Respondent is bound by the Free Spirit Domains, 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 4, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 25, 2019 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@kodak305.com. Also on February 4, 2019, 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 February 27, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Richard Hill 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 states that it provides photographic and imaging equipment and supplies under the KODAK mark. Complainant claims rights in the KODAK mark based upon its registration in the United States in 1925. The mark is registered elsewhere around the world and it is famous. Complainant alleges that the disputed domain name is confusingly similar to its mark as it incorporates the entire KODAK mark, merely adding the number “305”, and the “.com” generic top-level domain (“gTLD”). According to Complainant, Respondent has no rights or legitimate interests in the disputed domain name. Respondent is not licensed or authorized to use Complainant’s mark and is not commonly known by the disputed domain name. Additionally, Respondent fails to use the disputed domain for any bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent uses the disputed domain name to display adult-oriented content. Further, Respondent failed to respond to Complainant’s cease and desist letter. Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith because Respondent uses it to attract users for commercial gain to a website featuring adult-oriented content. Further, Respondent had actual knowledge of Complainant’s KODAK mark when it registered the disputed domain name. B. Respondent Respondent failed to submit a Response in this proceeding. FINDINGS Complainant owns the mark KODAK and uses it to provide photographic and imaging equipment and supplies. The mark is famous. Complainant’s rights in its mark dates back to 1925. The disputed domain names were registered in 2018. Complainant has not licensed or otherwise authorized Respondent to use its marks. The resolving website displays adult entertainment material. 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 The disputed domain name is confusingly similar to Complainant’s KODAK mark as it incorporates the mark in its entirety and merely adds the numbers “305” and a gTLD to the mark. Additions of a number and a gTLD to a complainant’s mark do not negate any confusing similarity between a disputed domain name and mark under Policy ¶ 4(a)(i). See Twentieth Century Fox Film Corporation v Domain Admin / PrivacyProtect.org / Denis Ferulev, FA 1652313 (Forum Jan. 19, 2016) (“Complainant notes that the domain name contains the recognised acronym for its FAMILY GUY mark, along with the number ‘24’ … the Panel finds that the <fg24.biz> domain name is confusingly similar to the FAMILY GUY mark under Policy ¶ 4(a)(i).”); see also Trip Network Inc. v. Alviera, FA 914943 (Forum Mar. 27, 2007) (concluding that the affixation of a gTLD to a domain name is irrelevant to a Policy ¶ 4(a)(i) analysis). Accordingly, the Panel finds that the <kodak305.com> domain name is confusingly similar to Complainant’s KODAK mark per Policy ¶ 4(a)(i). Rights or Legitimate Interests Respondent is not licensed or authorized to use the KODAK mark in any way. Respondent is not commonly known by the disputed domain name: where a response is lacking, WHOIS information can support a finding that a respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum Sept. 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark.). Here, the WHOIS information of record identifies Respondent as “junxia yang / yangjunxia.” The Panel therefore finds that Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii). Respondent fails to make a bona fide ­offering of goods or services or a legitimate noncommercial or fair use of the disputed domain name. Instead, Respondent uses the disputed domain name to display adult-oriented material. Using a disputed domain name to display adult-oriented material is neither a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use of the domain name under Policy ¶ 4(c)(iii). See Virtu Altria Group, Inc. and Altria Group Distribution Company v. xiazihong, FA1732665 (Forum July 7, 2017) (holding that “[u]se of a domain name to display adult-oriented images is not considered a bona fide offering of goods or services or a legitimate noncommercial or fair use under the Policy.”). Therefore, the Panel finds that Respondent does not make a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii). The Panel finds that Respondent has no rights or legitimate interests in the disputed domain name. Registration and Use in Bad Faith Respondent has not presented any plausible explanation for its use of Complainant’s famous mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain name. Indeed, as already noted, Respondent uses the disputed domain name to display adult-oriented content. Use of a disputed domain name to divert Internet users to pornographic or adult-oriented content is evidence of bad faith pursuant to Policy ¶ 4(b)(iv). See Abbvie Inc. et all v. ZhangHua Zhong/Hua Zhong ZhangWuxi, FA 1817277 (Forum Dec. 26, 2018) (holding that direction of the disputed domain name to a website that features gambling and pornographic material constitutes registration and use of the disputed domain in bad faith per Policy ¶ 4(b)(iv)). Consequently, the Panel finds that Respondent registered and is using the disputed domain name in bad faith per Policy ¶ 4(b)(iv). 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 <kodak305.com> domain name be TRANSFERRED from Respondent to Complainant. Richard Hill, Panelist Dated: February 28, 2019 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.