WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
CI 95, LLC v. Domain Administrator, See PrivacyGuardian.org / Nijiange 2017
Case No. D2021-0208
1. The Parties
Complainant is CI 95, LLC, United States of America (“United States”), represented by Kremblas & Foster, United States.
Respondent is Domain Administrator, See PrivacyGuardian.org, United States / Nijiange 2017, United States.
2. The Domain Name and Registrar
The disputed domain name <ci95.com> (the “Domain Name”) is registered with NameSilo, LLC (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on January 25, 2021. On January 26, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On January 26, 2021, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the Domain Name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to Complainant on January 27, 2021, 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 January 28, 2021.
The Center verified that the 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 January 29, 2021. In accordance with the Rules, paragraph 5, the due date for Response was February 18, 2021. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on February 19, 2021.
The Center appointed Robert A. Badgley as the sole panelist in this matter on February 25, 2021. 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 was registered as an Ohio corporation on June 23, 2020.
On August 4, 2020, Complainant applied to the United States Patent and Trademark Office (“USPTO”) to register the design mark CI95 in connection with respirator masks. The USPTO application annexed to the Complaint does not state when Complainant first used this mark in commerce, but in the Complaint, Complainant asserts that it has used the CI95 design mark since “at least as early as November 2020.” It appears that the USPTO application is pending, as there is no indication in the record that the USPTO has granted registration of the mark to date.
The Domain Name was registered on October 4, 2019. The Domain Name resolves to a website in the Chinese language which features pornographic images.
5. Parties’ Contentions
Complainant contends that it has established all three elements required under the Policy for a transfer of the Domain Name.
Respondent did not reply 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 is prepared, for purposes of this element of the Policy in this proceeding, to conclude that Complainant has rights in the trademark CI95 through its trademark application, and its undisputed and plausible assertion that it began to use that mark in commerce in November 2020. The Panel also concludes that the Domain Name is identical to the 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.
In view of the Panel’s conclusion in the next section that the Domain Name was not registered in bad faith, the Panel need not decide whether Respondent has rights or legitimate interests in respect of the Domain Name.
C. Registered or 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 Complainant has failed to prove that Respondent registered the Domain Name in bad faith. There is simply no way that Respondent could have been targeting Complainant and its CI95 trademark at the time the Domain Name was registered in October 2019 because, according to the record in this case, Complainant had not begun to use its CI95 trademark in commerce until November 2020.
Accordingly, regardless of the fact that the Domain Name resolves to a website whose content Complainant does not like, a transfer cannot occur in this proceeding because there is no way that this Domain Name was registered with Complainant’s mark in mind.
Complainant’s entire argument on the “bad faith” element is set forth below:
“The domain name should be considered as having been registered and used in bad faith by the Respondent because, by its use of the domain name, the Respondent intentionally attempted to attract for commercial gain Internet users to the Respondent’s web site. Respondent created a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the Respondent’s web site or of a product or service on the Respondent’s web site. Respondent appears to have set up a web site for the purpose of selling entertainment services, or to simply divert traffic to its site, thereby confusing consumers into associating the web site at the domain name at issue with the Complainant. On information and belief, upon learning of Complainant’s use of, or application to register, the mark CI95 (and design), registration of the limited liability company (Annex 6), or use of the trademark by Complainant, Respondent began to display photographs and images at the domain www.ci95.com that are intended to harm Complainant’s reputation and/or divert consumers to Respondent’s web site for profit and/or to create confusion with Complainant.”
The foregoing assertions are mere conclusory recitals of what Complainant believes are sufficient grounds to prove bad faith registration and use of the Domain Name. As noted above, on the record provided here, there is simply no way that Respondent could have targeted Complainant when registering the Domain Name.
The Panel also notes that the Domain Name is short and comprised of two letters and two numbers. Short domain names are generally desirable regardless of their trademark value. There is no reason to infer based on the record at least, even if Complainant had trademark rights prior to the Domain Name’s registration, that Respondent was targeting Complainant’s trademark, notwithstanding Complainant’s conclusory assertions to the contrary. The record contains no evidence of the extent of Complainant’s use of its trademark or its degree of acquired distinctiveness at the time the disputed domain name was registered.
Complainant has not established Policy paragraph 4(a)(iii).
For the foregoing reasons, the Complaint is denied.
Robert A. Badgley
Date: March 11, 2021