WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
KitApps, Inc., dba Attendify v. Paddy Nay
Case No. D2019-0536
1. The Parties
Complainant is KitApps, Inc. dba Attendify of San Jose, California, United States of America (“United States”), represented by SPZ Legal, P.C., United States.
Respondent is Paddy Nay of San Jose, California, United States.
2. The Domain Name and Registrar
The disputed domain name <attendify.app> (the “Domain Name”) 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 March 10, 2019. On March 11, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On March 12, 2019, the Registrar transmitted by email to the Center its verification response confirming that 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 Respondent of the Complaint, and the proceedings commenced on March 18, 2019. In accordance with the Rules, paragraph 5, the due date for Response was April 7, 2019. The Center received informal email communications from a third party on March 19, 2019, on March 21, 2019, and on April 12, 20191. Respondent did not submit any response. Accordingly, the Center notified the Parties that it would proceed to panel appointment on April 8, 2019.
The Center appointed Robert A. Badgley as the sole panelist in this matter on April 17, 2019. 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
According to the Complaint, Complainant “offers a mobile app platform via its website attendify.com and related services (‘Attendify’) that enables event planners to create fully customized mobile apps for conferences, tradeshows, exhibitions and other types of events”. Complainant alleges that it serves more than 2,000 customers worldwide, including Google, PayPal, AstraZeneca, Cisco, Coursera, and PWC.
Complainant holds various trademark registrations for ATTENDIFY, including United States Patent and Trademark Office (“USPTO”) Registration No. 4,396,077 dated September 3, 2013, and several subsequent USPTO registrations.
As noted above, Complainant’s main website is located at the address <attendify.com>.
The Domain Name was registered on May 8, 2018. The Domain Name currently resolves to a standard hosting page; it previously resolved to a website bearing the prominent announcement “The domain name Attendify.app is for sale!”. The site listed a price of USD 20,000 to purchase the Domain Name. In the “Seller’s notes” section of the web page, the following text appeared: “Build elegant event apps and registration pages to elevate the entire attendee experience and put your event data to work. Start creating your event for free.”
5. Parties’ Contentions
Complainant asserts that it has established the three elements required under the Policy for a transfer of the Domain Name.
Respondent has not replied to Complainant’s contentions.
6. Discussion and Findings
Paragraph 4(a) of the Policy lists the three elements which Complainant must satisfy with respect to the Domain Name:
(i) the Domain Name is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(ii) Respondent has no rights or legitimate interests in respect of the Domain Name; and
(iii) the Domain Name has been registered and is being used in bad faith.
A. Identical or Confusingly Similar
The Panel concludes that Complainant has rights in the mark ATTENDIFY through registration and use. The Panel concludes further that the Domain Name is identical to that mark.
Complainant has established Policy, paragraph 4(a)(i).
B. Rights or Legitimate Interests
Pursuant to paragraph 4(c) of the Policy, Respondent may establish its rights or legitimate interests in the Domain Name, among other circumstances, by showing any of the following elements:
(i) before any notice to you [Respondent] of the dispute, your use of, or demonstrable preparations to use, the Domain Name or a name corresponding to the Domain Name in connection with a bona fide offering of goods or services; or
(ii) you [Respondent] (as an individual, business, or other organization) have been commonly known by the Domain Name, even if you have acquired no trademark or service mark rights; or
(iii) you [Respondent] are making a legitimate noncommercial or fair use of the Domain Name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
The Panel concludes that Respondent has no rights or legitimate interests in respect of the Domain Name. Respondent has not come forward to explain its bona fides in connection with the Domain Name. The undisputed record reflects that Respondent has registered the Domain Name, which is identical to a distinctive trademark and not a dictionary term, and put it up for sale at a hefty profit.
Complainant has established Policy paragraph 4(a)(ii).
C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy provides that the following circumstances, “in particular but without limitation,” are evidence of the registration and use of the Domain Name in “bad faith”:
(i) circumstances indicating that Respondent has registered or has acquired the Domain Name primarily for the purpose of selling, renting, or otherwise transferring the Domain Name registration to Complainant who is the owner of the trademark or service mark or to a competitor of that Complainant, for valuable consideration in excess of its documented out of pocket costs directly related to the Domain Name; or
(ii) that Respondent has registered the Domain Name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that Respondent has engaged in a pattern of such conduct; or
(iii) that Respondent has registered the Domain Name primarily for the purpose of disrupting the business of a competitor; or
(iv) that by using the Domain Name, Respondent has intentionally attempted to attract, for commercial gain, Internet users to Respondent’s website or other online location, by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website or location or of a product or service on Respondent’s website or location.
The Panel concludes that Respondent has registered and used the Domain Name in bad faith. The Panel finds it clear that Respondent had Complainant’s distinctive ATTENDIFY mark in mind when registering the Domain Name. As noted above, the ATTENDIFY mark reflects a coinage, not a dictionary word. Further, Respondent advertises at its website that the Domain Name is for sale and explains to the website visitor why the Domain Name would be desirable – it is a good fit for building “elegant” event apps. This is precisely the core service that Complainant provides under the ATTENDIFY mark.
The Panel also finds obvious bad faith registration and use of the Domain Name within the meaning of Policy paragraph 4(b)(i), quoted above.
Complainant has established Policy paragraph 4(a)(iii).
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the Domain Name <attendify.app> be transferred to Complainant.
Robert A. Badgley
Date: April 30, 2019
1 The Center has received on April 12, 2019, an email communication from a third party stating “Can you remove us from the communication around this case? As stated before, Undeveloped is not the owner of the domain, one of our sellers has used our company details in WHOIS without our consent for this domain”. It appears to the Panel that the third party has no relationship with Respondent. In light of the above, the Panel instructed the Center to remove the third party from the communications regarding this case.