Nighthawkapp.net

The timeline behind nighthawkapp.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 NETGEAR, INC. v. Honey Rana Claim Number: FA1908001855272 PARTIES Complainant is NETGEAR, INC. (“Complainant”), represented by Erica N. Goven, Nebraska, USA. Respondent is Honey Rana (“Respondent”), India. REGISTRAR AND DISPUTED DOMAIN NAME The domain name at issue is <nighthawkapp.net>, registered with BigRock Solutions Ltd. 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. Bruce E. Meyerson as Panelist. PROCEDURAL HISTORY Complainant submitted a Complaint to the Forum electronically on August 1, 2019; the Forum received payment on August 1, 2019. On August 2, 2019, BigRock Solutions Ltd confirmed by e-mail to the Forum that the <nighthawkapp.net> domain name is registered with BigRock Solutions Ltd and that Respondent is the current registrant of the name. BigRock Solutions Ltd has verified that Respondent is bound by the BigRock Solutions Ltd 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 August 5, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 26, 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@nighthawkapp.net. Also on August 5, 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 August 28, 2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Bruce E. Meyerson 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 1. Complainant, NETGEAR, INC., is a leading manufacturer of computer networking and hardware products which are sold worldwide. Complainant has rights in the NIGHTHAWK mark based upon the registration with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 4,581,810, registered Aug. 5, 2014). Respondent’s <nighthawkapp.net>[i] is confusingly similar to Complainant’s mark as Respondent merely adds the generic term “app” and the “.com” generic top-level domain (“gTLD”) to Complainant’s mark. 2. Respondent does not have rights or legitimate interests in the <nighthawkapp.net> domain name. Respondent is not permitted or licensed to use Complainant’s NIGHTHAWK mark and is not commonly known by the domain name. 3. Additionally, Respondent is not using the domain name to make a bona fide offering of goods or services or for a legitimate non-commercial or fair use. Rather, Respondent uses the <nighthawkapp.net> domain name to mimic Complainant, through a chat function, in order to offer products that compete with Complainant’s business. 4. Respondent has registered and uses the <nighthawkapp.net> domain name in bad faith. Respondent is attempting to attract, for commercial gain, Internet users to a competing website. 5. In addition, Respondent failed to respond to Complainant’s cease and desist letter. 6. Finally, Respondent had actual knowledge or constructive notice of Complainant’s NIGHTHAWK mark prior to registering the <nighthawkapp.net> domain name. B. Respondent Respondent failed to submit a Response in this proceeding. FINDINGS Complainant holds trademark rights for the NIGHTHAWK mark. Respondent’s domain name is confusingly similar to Complainant’s NIGHTHAWK mark. Complainant has established that Respondent lacks rights or legitimate interests in the use of the <nighthawkapp.net> domain name and that Respondent registered and uses the domain name 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 set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”). Identical and/or Confusingly Similar Complainant has rights to the NIGHTHAWK mark based upon registration with the USPTO. Registration with USPTO sufficiently establishes rights in a mark under Policy ¶ 4(a)(i). See Haas Automation, Inc. v. Jim Fraser, FA 1627211 (Forum Aug. 4, 2015) (finding that Complainant’s USPTO registrations for the HAAS mark sufficiently demonstrate its rights in the mark under Policy ¶ 4(a)(i)). Complainant provides copies of its USPTO registrations for the NIGHTHAWK mark (e.g., Reg. No. 4,581,810, registered Aug. 5, 2014). Complainant next claims that Respondent’s <nighthawkapp.net> domain name is confusingly similar to Complainant’s NIGHTHAWK mark as Respondent merely adds a modifier and a gTLD to the mark. Additions of a generic and/or descriptive terms and a gTLD to a complainant’s mark does not negate any confusing similarity between a domain name and mark under Policy ¶ 4(a)(i). See Microsoft Corporation v. Thong Tran Thanh, FA 1653187 (Forum Jan. 21, 2016) (determining that confusing similarity exist where [a disputed domain name] contains Complainant’s entire mark and differs only by the addition of a generic or descriptive phrase and top-level domain, the differences between the domain name and its contained trademark are insufficient to differentiate one from the other for the purposes of the Policy.); 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). Complainant argues Respondent merely adds the term “app”, and a “.com” gTLD to Complainant’s NIGHTHAWK mark. The Panel agrees with Complainant and finds that the <nighthawkapp.net> does not contain changes that would sufficiently distinguish it from the NIGHTHAWK mark per Policy ¶ 4(a)(i). The Panel finds Complainant has satisfied Policy ¶ 4(a)(i). Rights or Legitimate Interests Complainant alleges that Respondent holds no rights or legitimate interests in the <nighthawkapp.net> domain name. This allegation must be supported with a prima facie showing by Complainant under Policy ¶ 4(a)(ii). After a complainant successfully makes a prima facie case, a respondent is faced with the burden of proving it does have rights or legitimate interests in the domain name. In Swedish Match UK Ltd. v. Admin, Domain, FA 873137 (Forum Feb. 13, 2007), the panel held that when a complainant produces a prima facie case, the burden of proof then shifts to the respondent to demonstrate its rights or legitimate interests in the domain name under Policy ¶ 4(c); see also Compagnie Generale des Matieres Nucleaires v. Greenpeace Int’l, D2001-0376 (WIPO May 14, 2001) (“For the purposes of this sub paragraph, however, it is sufficient for the Complainant to show a prima facie case and the burden of proof is then shifted on to the shoulders of Respondent. In those circumstances, the common approach is for respondents to seek to bring themselves within one of the examples of paragraph 4(c) or put forward some other reason why they can fairly be said to have a relevant right or legitimate interests in respect of the domain name in question.”). The Panel holds that Complainant has made a prima facie case. Complainant argues that Respondent has no rights or legitimate interests in <nighthawkapp.net> domain name. Specifically, Complainant argues Respondent is not licensed or authorized to use the NIGHTHAWK mark and is not commonly known by the <nighthawkapp.net> domain name. Where a response is lacking, WHOIS information can support a finding that a respondent is not commonly known by a 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.). Additionally, lack of authorization to use a complainant’s mark may demonstrate the respondent is not commonly known by a domain name. See Navistar International Corporation v. N Rahmany, FA1505001620789 (Forum June 8, 2015) (finding that the respondent was not commonly known by the disputed domain name where the complainant had never authorized the respondent to incorporate its NAVISTAR mark in any domain name registration). The WHOIS information in the record identifies Respondent as “Honey Rana,” and there is no other evidence to suggest Respondent is authorized to use the NIGHTHAWK mark. Therefore, Respondent is not commonly known by the <nighthawkapp.net> domain name per Policy ¶ 4(c)(ii). Additionally, Complainant argues Respondent is not using the <nighthawkapp.net> domain name in connection with a bona fide offering of goods or services or legitimate noncommercial or fair use. Complainant has provided evidence that Respondent is using the <nighthawkapp.net> domain name to resolve to a website that mimics Complainant in order to sell products that compete with Complainant. Use of a domain name incorporating the mark of another to offer competing products and services does not amount to a bona fide offering of goods or services or a legitimate noncommercial or fair use of the name under Policy ¶¶ 4(c)(i) or (iii). See General Motors LLC v. MIKE LEE, FA 1659965 (Forum Mar. 10, 2016) (finding that “use of a domain to sell products and/or services that compete directly with a complainant’s business does not constitute 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).”). The <nighthawkapp.net> domain name resolves to a site which displays Complainant’s NIGHTHAWK mark, along with a chat feature, and offers support services that directly compete with Complainant. Thus, Respondent’s use of the <nighthawkapp.net> domain name does not make a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii). The Panel finds Complainant has satisfied Policy ¶ 4(a)(ii). Registration and Use in Bad Faith Complainant claims Respondent registered and uses the <nighthawkapp.net> domain name in bad faith. Specifically, Complainant claims Respondent attempts to attract, for commercial gain, users to the domain name which features services that compete directly with Complainant. Using a domain name which is confusingly similar to the mark of another to commercially benefit by offering competing services can shows bad faith registration and use per Policy ¶ 4(b)(iv). See ZIH Corp. v. ou yang lin q, FA1761403 (Forum Dec. 29, 2017) (Finding bad faith where Respondent used the infringing domain name to disrupt Complainant’s business by diverting Internet users from Complainant’s website to Respondent’s website where it offered competing printer products). Complainant has shown that Respondent’s confusingly similar domain name is intended to mislead Internet users and divert Internet traffic away from Complainant’s site to Respondent’s website. Respondent provides a chat feature that offers services that compete with Complainant’s business. Complainant provides a screenshot of the <nighthawkapp.net> domain name’s resolving webpage to support its allegations. Therefore, the Panel holds that Respondent registered and uses the <nighthawkapp.net> domain name in bad faith pursuant Policy ¶ 4(b)(iv). Finally, Complainant argues Respondent must have had actual knowledge of Complainant’s NIGHTHAWK mark. Actual knowledge is sufficient and may be proven through a totality of circumstances per Policy ¶ 4(a)(iii). See Custom Modular Direct LLC v. Custom Modular Homes Inc., FA 1140580 (Forum Apr. 8, 2008) (“There is no place for constructive notice under the Policy.”); see also Google Inc. v. Ahmed Humood, FA1411001591796 (Forum Jan. 7, 2015) (“This Panel makes that inference; Respondent has actual knowledge of Complainant’s mark at the time of domain name registration based on the fame of Complainant’s GOOGLE mark and Respondent’s use of one of the disputed domain names to detail Internet domain name registration and maintenance services related to an in competition with Complainant.). Complainant claims that due to Respondent’s use of Complainant’s unique and famous NIGHTHAWK mark, Respondent had actual knowledge of Complainant’s rights in the mark. The Panel agrees that by incorporating exactly Complainant’s mark in the <nighthawkapp.net> domain name, Respondent had actual knowledge of Complainant’s rights in the NIGHTHAWK mark, and thus engaged in bad faith under Policy ¶ 4(a)(iii). The Panel finds Complainant has satisfied 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 <nighthawkapp.net> domain name be TRANSFERRED from Respondent to Complainant. Bruce E. Meyerson, Panelist Dated: September 5, 2019 [i] The domain name was registered on June 12, 2018. 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.