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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Nexcess.net, LLC v. Md. Asaduzzaman

Case No. D2017-0003

1. The Parties

The Complainant is Nexcess.net, LLC of Southfield, Michigan, United States of America ("United States"), internally represented.

The Respondent is Md. Asaduzzaman of Dhaka, Bangladesh, self-represented.

2. The Domain Name and Registrar

The disputed domain name <nexcesshost.com> is registered with PDR Ltd. d/b/a PublicDomainRegistry.com (the "Registrar").

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on January 4, 2017. On January 5, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On January 9, 2017, 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.

The Center verified that 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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on January 9, 2017. In accordance with the Rules, paragraph 5, the due date for Response was January 29, 2017. An email communication from the Respondent was received by the Center on January 14, 2017.

The Center appointed Steven A. Maier as the sole panelist in this matter on February 10, 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.

In the absence of any formal Response, the Panel directs that the Respondent's email communication dated January 14, 2017 be treated as the Response in this proceeding.

4. Factual Background

The Complainant is a company registered in Michigan, United States. It is a provider of Internet hosting and related services.

The Complainant is the owner United States trademark number 3,947,991 for NEXCESS, registered on April 19, 2011 in Class 42 for 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 May 3, 2016.

The Complainant has provided evidence by way of screen shots dated December 5, 2016 that the disputed domain name has been used for the purposes of a website which made prominent use of the mark NEXCESS and also purported to offer Internet hosting and related services.

5. Parties' Contentions

A. Complainant

The Complainant states that it has used the mark NEXCESS since about October 30, 2000 and also refers to its trademark registration referred to above. The Complainant submits evidence of its own website at "www.nexcess.net", including a blue NEXCESS logo in which the Complainant states it is the owner of certain rights.

The Complainant submits that the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights. The Complainant submits that the disputed domain name consists of its trademark NEXCESS with the addition of the term "host", which describes the services for which the Complainant's trademark is registered.

The Complainant submits that the Respondent has no rights or legitimate interests in respect of the disputed domain name. The Complainant denies that the Respondent has commonly been known by the disputed domain name or that he is making either bona fide commercial use or legitimate noncommercial or fair use of the disputed domain name. The Complainant contends that the Respondent is using the disputed domain name for the purposes of a misleading website which uses the Complainant's trademark and also reproduces the Complainant's logo as used on the Complainant's own website. The Complainant states that, while the Respondent's website appears to offer services which are nearly identical to those of the Complainant, a number of the website pages are incomplete and only contain Latin placeholder text.

The Complainant contends that the disputed domain name has been registered and is being used in bad faith. The Complainant points to the similarity between the disputed domain name and its trademark NEXCESS and submits that the only reasonable explanation for this and for the Respondent's use of the disputed domain name is that the Respondent intends to confuse the Complainant's customers and potential customers and to subvert the Complainant's business. The Complainant submits that the Respondent's use of the disputed domain name is an attempt to attract, for commercial gain, Internet users to the Respondent's website by creating a likelihood of confusion with the Complainant's marks as to the source, sponsorship, affiliation or endorsement of the Respondent's website or of a product or service on that website.

The Complainant requests a transfer of the disputed domain name.

B. Respondent

The Respondent submits that the Complaint is "meaningless and inappropriate". He states that all available domain names are open to all and that anyone has the right to purchase them. The Respondent states that his organization has been running since 2007 and has a good reputation and that he has not done anything wrong.

6. Discussion and Findings

In order to succeed in the Complaint, the Complainant is required to show that all three of the elements set out under paragraph 4(a) of the Policy are present. Those elements are:

(i) that the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;

(ii) that the 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

The Complainant has demonstrated that it is the owner of registered trademark rights in the name and mark NEXCESS and has established to the satisfaction of the Panel that it has used that mark in commerce for the purpose of Internet hosting and related services. The disputed domain name comprises the entirety of the Complainant's mark NEXCESS together with the term "host", which is a descriptive term corresponding to one of the principal fields of activity for which the Complainant's trademark is registered.

In the circumstances, the Panel finds that the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights.

B. Rights or Legitimate Interests

In the view of the Panel, the Complainant's submissions set out above give rise to a prima facie case for the Respondent to answer that he has no rights or legitimate interests in respect of the disputed domain name. While the Panel has directed that the Respondent's email dated January 14, 2017 be treated as the Response in this matter, the Panel finds the contents of that email to be wholly unavailing. In particular, the Respondent provides no reasonable explanation for his choice and his use of the disputed domain name and does not address the Complainant's specific allegations that the Respondent has used the disputed domain name in a deliberately misleading manner.

In light of the above, and as set out in further detail below, the Panel finds that the Respondent has no rights or legitimate interests in respect of the disputed domain name.

C. Registered and Used in Bad Faith

The Panel considers the disputed domain name to be inherently misleading in that it consists of the entirety of the Complainant's mark NEXCESS together with the term "host", which is descriptive of one of the Complainant's principal fields of activity. Further, based on the evidence submitted by the Complainant, which the Respondent does not substantially contradict, the Panel finds that the Respondent registered and has used the disputed domain name for the purposes of a website which includes the Complainant's trademark and logo, impersonates the Complainant and is likely to cause confusion to Internet users who are looking for the Complainant's services. The Panel therefore finds that the Respondent has attempted to attract, for commercial gain, Internet users to his website by creating a likelihood of confusion with the Complainant's marks as to the source, sponsorship, affiliation or endorsement of that website or of a product or service on that website (paragraph 4(b)(iv) of the Policy) and that the disputed domain name has been registered and is being used in bad faith.

7. Decision

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, <nexcesshost.com>, be transferred to the Complainant.

Steven A. Maier
Sole Panelist
Date: February 15, 2017

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