Hempire-direct.com

The timeline behind hempire-direct.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 Swisher International, Inc. v. Benji Boyce / CBD Flower Wholesalers Claim Number: FA2110001971017 PARTIES Complainant is Swisher International, Inc. (“Complainant”), represented by Elizabeth Lee D’Amore of Lucas & Mercanti, LLP, New York, USA. Respondent is Benji Boyce / CBD Flower Wholesalers (“Respondent”), represented by Erik M. Pelton & Associates, PLLC, Louisiana, USA. REGISTRAR AND DISPUTED DOMAIN NAME The domain name at issue is <hempire-direct.com>, (‘the Domain Name’) registered with GoDaddy.com, LLC. PANEL The undersigned certifies that she has acted independently and impartially and to the best of her knowledge has no known conflict in serving as Panelist in this proceeding. Dawn Osborne as Panelist. PROCEDURAL HISTORY Complainant submitted a Complaint to the Forum electronically on October 28, 2021; the Forum received payment on October 28, 2021. On October 29, 2021, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <hempire-direct.com> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. 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 November 2, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 22, 2021 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@hempire-direct.com. Also on November 2, 2021, 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 29, 2021 pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Dawn Osborne 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 The Complainant’s contentions can be summarized as follows: The Complainant is the owner of the mark HEMPIRE registered, inter alia, in the USA for smoking related products since 2005. The Domain Name registered in 2020 is confusingly similar to the Complainant’s trade mark adding only a hyphen, the descriptive term ‘direct’ and the gTLD “.com” which does not prevent such confusing similarity. The Respondent does not have any rights or legitimate interests in the Domain Name, is not commonly known by it and is not authorized by the Complainant. The Domain Name has been used for a web site offering competing products. This is not a bona fide offering of goods or services or a noncommercial or legitimate fair use. This use by the Respondent is registration and use in bad faith misleading Internet users for commercial gain and disrupting the Complainant’s business. The contents of the Respondent’s site taking advantage of the Complainant’s mark to sell competing products shows the Respondent is aware of the Complainant and its rights. The Respondent has been the subject of an adverse decision under the UDRP for the similar domain name hempiredirect.com showing a pattern of activity. B. Respondent Respondent failed to submit a Response in this proceeding. FINDINGS The Complainant is the owner of the mark HEMPIRE registered, inter alia, in the USA for smoking related products since 2005. The Domain Name registered in 2020 has been used for competing products. The Respondent has been the subject of a separate adverse UDRP decision involving the Complainant. 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 The Domain Name consists of the Complainant's HEMPIRE mark (which is registered, inter alia, in USA for smoking related products with first use recorded as 2005), a hyphen, the generic term ‘direct’ and the gTLD “.com”. Previous panels have found confusing similarity when a respondent merely adds a generic term to a Complainant's mark. See PG&E Corp. v. Anderson, D2000-1264 (WIPO Nov. 22, 2000) (finding that respondent does not by adding common descriptive or generic terms create new or different marks nor does it alter the underlying mark held by the Complainant). The Panel agrees that the addition of the generic term ‘direct’ to the Complainant's mark does not prevent confusing similarity between the Domain Name and the Complainant's registered trade mark for the purposes of the Policy. Nor does the addition of a hyphen. See Health Devices Corp. v. Aspen STC, FA 158254 (Forum July 1, 2003) (The addition of punctuation marks such as hyphens is irrelevant in the determination of confusing similarity pursuant to Policy 4(a)(i).). The gTLD “.com” does not serve to prevent confusing similarity between the Domain Name and the Complainant’s mark. See Red Hat Inc. v. Haecke, FA 726010 (Forum July 24, 2006) (concluding that the redhat.org domain name is identical to the complainant's red hat mark because the mere addition of the gTLD was insufficient to differentiate the disputed domain name from the mark). Accordingly, the Panel holds that the Domain Name is confusingly similar to the Complainant’s registered mark. As such the Panel holds that Paragraph 4(a)(i) of the Policy has been satisfied. Rights or Legitimate Interests The Complainant has not authorized the Respondent to use its mark. The Respondent does not appear to be commonly known by the Domain Name. 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). The use of the site is commercial so is not legitimate noncommercial fair use. The web site attached to the Domain Name uses the Complainant's mark to offer competing smoking related goods. The site does not make it clear that there is no commercial connection with the Complainant. The Panel finds this use is confusing. As such it cannot amount to the bona fide offering of goods and services. See Am. Intl Group Inc. v. Benjamin, FA 944242 (Forum May 11, 2007) (finding that the Respondent's use of a confusingly similar domain name to compete with the Complainant's business did not constitute a bona fide use of goods and services.). As such the Panelist finds that the Respondent does not have rights or a legitimate interest in the Domain Name and that the Complainant has satisfied the second limb of the Policy. Registration and Use in Bad Faith In the opinion of the panelist the use made of the Domain Name in relation to the Respondent’s site is confusing and disruptive in that visitors to the site might reasonably believe it is connected to or approved by the Complainant as it offers competing products under the Complainant’s mark. The reference to the Complainant’s mark on the site shows that the Respondent has actual knowledge of the Complainant and its business, products and rights. Accordingly, the Panel holds that the Respondent has intentionally attempted to attract for commercial gain Internet users to its website by creating likelihood of confusion with the Complainant's trade mark as to the source, sponsorship, affiliation or endorsement of the web site or products on it likely to disrupt the business of the Complainant. See Asbury Auto Group Inc. v. Tex. Int'l Prop Assocs, FA 958542 (Forum May 29, 2007) (finding that the respondent's use of the disputed domain name to compete with the complainant's business would likely lead to confusion amongst Internet users as to the sponsorship or affiliation of a competing business and was therefore evidence of bad faith and use). Further the Respondent has been involved in a separate adverse decision under the UDRP involving the Complainant for the very similar domain name hempiredirect.com for a pretty much identical site to that attached to the Domain Name in this case offering competing products showing a pattern of activity. As such, the Panelist believes that the Complainant has made out its case that the Domain Name was registered and used in bad faith and has satisfied the third limb of the Policy under paragraphs 4(b)(ii), (iii) and (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 <hempire-direct.com> domain name be TRANSFERRED from Respondent to Complainant. Dawn Osborne, Panelist Dated: November 30, 2021 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.