WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Nexcess.net, L.L.C. v. Whoisguard Protected, WhoisGuard, Inc. / Dale Patch
Case No. D2017-1198
1. The Parties
Complainant is Nexcess.net, L.L.C. of Southfield, Michigan, United States of America ("United States"), represented by Vikramaditya A. Patel, United States.
Respondent is Whoisguard Protected, WhoisGuard, Inc. of Panama, Panama / Dale Patch of Rockville, Indiana, United States.
2. The Domain Name and Registrar
The disputed domain name <nexces.net> is registered with eNom, Inc. (the "Registrar").
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on June 20, 2017. On June 21, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On June 23, 2017, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to Complainant on the same day, providing the registrant and contact information disclosed by the Registrar, and inviting Complainant to submit an amendment to the Complaint. Complainant filed an amended Complaint on June 23, 2017.
The Center verified that Complaint together with the amended Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the "Policy" or "UDRP"), the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules"), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the "Supplemental Rules").
In accordance with the Rules, paragraphs 2 and 4, the Center formally notified Respondent of the Complaint, and the proceedings commenced on June 27, 2017. In accordance with the Rules, paragraph 5, the due date for Response was July 17, 2017.
On June 27 and 29, 2017, the Center received two informal communications from a third party.
Respondent did not submit any response.
The Center appointed Lynda J. Zadra-Symes as the sole panelist in this matter on July 21, 2017. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.
4. Factual Background
Complainant owns and operates "Nexcess", a web hosting company in business since 2000. Complainant's website is located at "www.nexcess.net", which Complainant has used since 2000.
Complainant is the owner of the service mark NEXCESS, which is the subject of United States Trademark Registration No. 3947991 registered April 19, 2011, claiming first use in commerce on October 30, 2000, for use in connection with consulting services in the field of hosting computer software applications; hosting of digital content on the Internet; and hosting of websites.
The disputed domain name was registered on April 22, 2016. The disputed domain name forwards web traffic to a web hosting company called Next Point Host ("www.nextpointhost.com"), which provides services that compete with Complainant.
5. Parties' Contentions
Complainant contends that the disputed domain name is identical or confusingly similar to Complainant's registered trademark, that Respondent has no rights or legitimate interests in respect of the disputed domain name and that the disputed domain name was registered and is being used in bad faith.
Respondent did not reply to Complainant's contentions.
In two informal communications from Next Point Host SMLLC, whose website the disputed domain names redirects to, it stated that it had no affiliation with the disputed domain name and that it supported Complainant's transfer request.
6. Discussion and Findings
Complainant has the burden of proving each of the following three elements under paragraph 4(a) of the Policy in order to be entitled to a transfer of the disputed domain name:
(i) That the disputed domain name is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(ii) That Respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) That the disputed domain name has been registered and is being used in bad faith.
A. Identical or Confusingly Similar
Complainant has established registered trademark rights in the mark NEXCESS. The disputed domain name incorporates the mark in its entirety except for the omission of the final "s". This appears to be an example of typo-squatting, and does not detract from the virtually identical nature and confusing similarity of the disputed domain name.
The Panel finds that the disputed domain name is confusingly similar to a trademark in which Complainant has rights.
B. Rights or Legitimate Interests
As found in previous UDRP decisions, "a complainant is required to make out a prima facie case that the respondent lacks rights or legitimate interests. Once such a prima facie case is made, the burden of production shifts to the respondent to come forward with appropriate allegations or evidence demonstrating rights or legitimate interests in the domain name. If the respondent fails to come forward with such appropriate allegations or evidence, a complainant is generally deemed to have satisfied paragraph 4(a)(ii) of the UDRP". See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition ("WIPO Overview 3.0"), section 2.1.
Complainant's allegations in the Complaint and evidence submitted on this issue are sufficient to make out a prima facie case that Respondent has no rights or legitimate interests in the disputed domain name.
Respondent has not made use of the disputed domain name in connection with a bona fide offering of goods or services. There is no evidence that Respondent has been commonly known by the disputed domain name. Respondent is not a licensee of Complainant's trademarks and has not otherwise obtained authorization to use Complainant's marks.
An Internet user mistakenly entering "www.nexces.net" instead of "www.nexcess.net" would be directed to a website controlled by Complainant's competitor. This is not use of the disputed domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial use.
The Panel finds that Respondent has no rights or legitimate interests in respect of the disputed domain name.
C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy lists a number of circumstances that, without limitation, are deemed to be evidence of registration and use of a domain name in bad faith. Circumstances that "shall be evidence" of bad faith include facts indicating an intentional attempt to attract for commercial gain Internet users to a website by creating a likelihood of confusion with another's mark as to the source, sponsorship, affiliation, or endorsement of the website.
The virtually identical nature of the disputed domain name to Complainant's mark as well as the way it is used by Respondent to link to a competing website as described above indicate that the disputed domain name was registered primarily for the purpose of disrupting the business of Complainant, and intended to take advantage of the goodwill associated with Complainant's registered trademark by creating a likelihood of confusion with Complainant's mark as to the source, sponsorship, affiliation, or endorsement of the competing website at the disputed domain name. In view of Complainant's registered trademark and longstanding use of the mark incorporated in the disputed domain name, Respondent knew or should have known about Complainant's mark at the time it registered the disputed domain name. Bad faith may also be inferred from the facts that the disputed domain name directs users to a website "www.nextpointhost.com" offering services that directly compete with Complainant, that in an email to the Center the operators of that website denied any knowledge of the disputed domain name and acknowledged Complainant's rights to the disputed domain name, and that the address provided by the registrant for the disputed domain name was not accurate.
The Panel finds that the disputed domain name has been registered and is being used in bad faith.
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name <nexces.net> be transferred to Complainant.
Lynda J. Zadra-Symes
Date: August 1, 2017