WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Adam Summers v. Georgina Nelson, CEO and Founder of truRating Limited
Case No. D2015-0592
1. The Parties
The Complainant is Adam Summers of Glenn Burnie, Maryland, United States of America ("United States" or "US"), represented internally.
The Respondent is Georgina Nelson, CEO and Founder of truRating Limited of London, United Kingdom of Great Britain and Northern Ireland ("United Kingdom" or "UK").
2. The Domain Name and Registrar
The Disputed Domain Name <trueratings.com> is registered with GoDaddy.com, LLC (the "Registrar").
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on April 3, 2015. On April 7, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Disputed Domain Name. On April 7, 2015, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amendment to the Complaint on April 14, 2015.
The Center verified that the Complaint together with the amendment to the 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(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on April 15, 2015. In accordance with the Rules, paragraph 5(a), the due date for Response was May 5, 2015. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on May 6, 2015.
The Center appointed John Swinson as the sole panelist in this matter on May 8, 2015. 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
The Complainant is Adam Summers, an individual from the United States.
The Complainant owns US Trade Mark Registration No. 85503828 for TRUERATINGS, registered October 29, 2013 (the "Trade Mark").
The Respondent is Georgina Nelson, an individual from the United Kingdom. The Respondent is the CEO and Founder of truRating Limited.
The Respondent registered the Disputed Domain Name on December 5, 2014. The Disputed Domain Name redirects to the home page for the Respondent's business in the relevant user's country (e.g., users in the United Kingdom will be redirected to "www.trurating.com/en-gb/home" and users in Australia will be redirected to "www.trurating.com/en-au/home"). The associated website is for the Respondent's business, which is described as follows:
"Welcome to the Ratings Revolution!
What if you could rate an experience at the tap of a button, right at the moment you paid for it? If you could help the businesses you use get better every time you visited them? What if every time you rated you had the chance to win a prize and support some great causes too?
Welcome to truRating – the Ratings Revolution."
5. Parties' Contentions
The Complainant's contentions are as follows. The Complainant did not attach any evidence in support of its submissions.
Identical or Confusingly Similar
The Disputed Domain Name is the same as the Trade Mark. The Complainant is actively using the Trade Mark in commerce worldwide.
Rights or Legitimate Interests
The Respondent is using the Trade Mark and the Disputed Domain Name to misleadingly divert consumers to the Respondent's confusingly similar service.
Registered and Used in Bad Faith
The Respondent is exhibiting bad faith under paragraph 4(b)(iv) of the Policy by using the Disputed Domain Name as a forwarding mechanism. The Complainant's business and trade mark were established (in 2008) prior to the Respondent's registration of the Disputed Domain Name. As such, the Respondent is also exhibiting bad faith under paragraph 4(b)(ii) of the Policy.
The Respondent has a legitimate business called "TruRatings" which she is commonly known by and which is promoted at <truratings.com>. The name of the Respondent's business is similar to the Trade Mark. However, as it is not identical, the Respondent is using the Trade Mark to misleadingly redirect users to the Respondent's business.
The Respondent did not reply to the Complainant's contentions.
6. Discussion and Findings
To succeed, the Complainant must demonstrate that all of the elements enumerated in paragraph 4(a) of the Policy have been satisfied, namely:
(i) the Disputed Domain Name is identical or confusingly similar to a trade mark or service mark in which the Complainant has rights; and
(ii) the Respondent has no rights or legitimate interests in respect of the Disputed Domain Name; and
(iii) the Disputed Domain Name has been registered and is being used in bad faith.
The onus of proving these elements remains on the Complainant even though the Respondent has not filed a Response.
A. Procedural Issues
While the Respondent's failure to file a response does not automatically result in a decision in favor of the Complainant, the Panel may draw appropriate inferences from the Respondent's default (see e.g., Verner Panton Design v. Fontana di Luce Corp, WIPO Case No. D2012-1909).
B. Identical or Confusingly Similar
Paragraph 4(a)(i) of the Policy provides that the Complainant must establish that the Disputed Domain Name is identical or confusingly similar to the Trade Mark.
The Complainant did not provide a copy of its US Trade Mark registration or any registration details, such as the registration number and the date of registration. Due to these evidentiary gaps, the Panel has undertaken independent research, as it is entitled to pursuant to paragraph 10 of the Rules. The Panel confirms that, according to United States Patent and Trademark Office records, the Complainant owns the Trade Mark.
The Disputed Domain Name is identical to the Trade Mark. In this case, the generic Top-Level Domain ("gTLD") ".com" is irrelevant in assessing confusing similarity under the Policy and may be ignored (see e.g., Arthur Guinness Son & Co. (Dublin) Limited v. Dejan Macesic, WIPO Case No. D2000-1698).
In light of the above, the Complainant succeeds on the first element of the Policy.
C. Rights or Legitimate Interests
Paragraph 4(a)(ii) of the Policy provides that the Complainant must establish that the Respondent has no rights or legitimate interests in respect of the Disputed Domain Name. The Complainant is required to make out a prima facie case showing that the Respondent lacks rights or legitimate interests.
The Panel finds that the Complainant has failed to make out a prima facie case for the following reasons:
- The Respondent has been commonly known by the Disputed Domain Name (paragraph 4(c)(ii) of the Policy).
- Before any notice to the Respondent of the dispute, the Respondent was using the Disputed Domain Names in connection with a bona fide offering of services (paragraph 4(c)(i) of the Policy).
The Respondent's website at <truratings.com> states that the Respondent's company (truRating Limited) is a company registered in England and Wales (Registration No. 08251033). The Panel conducted searches to confirm the accuracy of this information, and determined that truRating Limited was incorporated on October 12, 2012. The Respondent's company also owns a trade mark registration for TRURATING (UK Trade Mark Registration No. UK00003039473), registered May 16, 2014.
Previous UDRP panels have addressed whether paragraph 4(c)(ii) of the Policy requires that the domain name correspond precisely with the name by which the respondent has been commonly known (disregarding as inconsequential the gTLD ".com") (see e.g., Banco Espírito Santo S.A. v. Bancovic, WIPO Case No. D2004-0890; John Hayes v. Vaughan Enterprises, WIPO Case No. D2004-0531 and Kronopol Sp. z o.o v. Lamwood Products (1990) Limited, Levana Schwartz, WIPO Case No. D2007-1596). The Panel prefers the approach taken in John Hayes v. Vaughan Enterprises and Kronopol Sp. z o.o v. Lamwood Products (1990) Limited, Levana Schwartz, which focuses attention on the distinctive element common to both the domain name and name claimed to be commonly used.
Here, the Respondent's business name and trade mark and the Disputed Domain Name are not identical. However, as they differ only marginally (the addition of an "e" and an "s" in the Disputed Domain Name and the addition of "Limited" in the business name), the Panel finds there is sufficient commonality to satisfy paragraph 4(c)(ii) of the Policy.
In relation to paragraph 4(c)(i), the Panel has reviewed the Respondent's website (which the Disputed Domain Name redirects to) and finds that the Respondent appears to be running a legitimate and sophisticated business. As evidenced by the company records referred to above, the Respondent has been operating this business since before the Complainant's trade mark was registered. As the Complainant does not appear to have any online presence, it seems highly unlikely that the Respondent registered the Disputed Domain Name with knowledge of the Trade Mark and with the intention to trade off the Complainant's reputation.
The Panel notes that the Complainant has conceded the above. He stated in his submissions: "WIPO will note that Respondent has a legitimate business called 'TruRatings' which they are commonly known and which is being promoted through the domain name 'truratings.com'."
In light of the above, the Complainant has failed to establish that the Respondent has no rights or legitimate interests in the Disputed Domain Name.
As the Complainant has failed to establish this element of the Policy, the Complaint must fail. The Panel does not need to address the third (bad faith) element of the Policy.
For the foregoing reasons, the Complaint is denied.
Date: May 24, 2015