WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Level Eleven, Inc. v. Travis Truett

Case No. DCO2019-0014

1. The Parties

The Complainant is Level Eleven, Inc. of Detroit, Michigan, United States of America (“US”), represented by Honigman LLP, US.

The Respondent is Travis Truett of Paris, France.

2. The Domain Name and Registrar

The disputed domain name <leveleleven.co> (the Disputed Domain Name”) is registered with CCI REG S.A. (the “Registrar”).

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 3, 2019. On April 4, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Disputed Domain Name. On April 8, 2019, 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. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amended Complaint on April 10, 2019.

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 the Respondent of the Complaint, and the proceedings commenced on April 16, 2019. In accordance with the Rules, paragraph 5, the due date for Response was May 6, 2019. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on May 7, 2019.

The Center appointed Nick J. Gardner as the sole panelist in this matter on May 14, 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

The Complainant is a provider of customer relationship management (“CRM”) software and related services. Its principal website is linked to the domain name <leveleleven.com>.

On December 9, 2016 the Respondent registered the Disputed Domain Name. At the time of writing this decision the Disputed Domain Name is linked to a webpage with a video of a garbage container on fire captioned “Spinal Tap “Up to 11” Fan Club Blog Coming Soon!”. The evidence filed with the Complaint shows that previously the Disputed Domain Name redirected to a different website (see below).

5. Parties’ Contentions

A. Complainant

The Complainant’s case can be summarized as follows.

a) The Disputed Domain Name is identical or confusingly similar to its LEVELELEVEN trademark. The Complainant relies on unregistered trademark rights in the word mark LEVELELEVEN and the composite mark LEVELELEVEN & Design. The Complainant says it has been using these trademarks substantially and continuously since 2012 in connection the following goods and services:

- Software, webinars, e-books, and other content related to sales management and/or performance management;

- Conducting research and providing consulting services in the field of customer relationship management (CRM) pertaining to strategy, marketing, and sales;

- Conducting workshops and seminars and providing education services in the field of customer relationship management. The Complainant provides substantial further evidence as to the detail of this usage. This is discussed below.

b) The Respondent does not have any rights or legitimate interests in the Disputed Domain Name.

c) The Respondent has registered and used the Disputed Domain Name in bad faith. The Complainant says the registrant of the Disputed Domain Name is Travis Truett, who is the CEO of Ambition Solutions, Inc. a competitor of the Complainant. It says the address in Paris that is listed on the WhoIs data from the Registrar is a hotel and that the Respondent is in fact in the US. The Complaint then proceeds on the basis that Ambition Solutions Inc. is the substantive Respondent. The Complainant says the Disputed Domain Name redirects to a page on the Respondent’s website, which provides a demonstration for its CRM software. It says the Respondent was founded in 2013 and has been the Complainant’s primary competitor for several years and that the Respondent is known by the name Ambition and uses the mark AMBITION on their website, “www.ambition.com”. It says the Respondent is not using, has not used, and/or has not demonstrated an intent to use the Disputed Domain Name, in connection with a bona fide, non-infringing offering of its goods and services. The Respondent is not making legitimate noncommercial or fair use of the Disputed Domain Name. Rather, its use is with the intent to mislead and divert consumers or to dilute the Complainant’s LEVELELEVEN trademarks for commercial gain. It says the Respondent is clearly intending to confuse customers who by mistake use the Disputed Domain Name rather than <leveleleven.com>.

The Complaint also goes into some detail concerning the actions of an ex-employee of the Complainant now working for the Respondent. The Panel has not found it necessary to consider this issue.

B. Respondent

No response has been filed.

6. Discussion and Findings

Preliminary issue – lack of Response

The Panel notes that no communication has been received from the Respondent. However given the Complaint and Written Notice were sent to the relevant addresses disclosed by the Registrar then the Panel considers that this satisfies the requirement in paragraph 2(a) of the UDRP Rules to “employ reasonably available means calculated to achieve actual notice”. Accordingly, the Panel considers it is able to proceed to determine this Complaint and to draw inferences from the Respondent’s failure to file any Response. 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).

Preliminary issue – Respondent Identity

The evidence filed by the Complainant establishes on a balance of probabilities that the Respondent Travis Truett is the CEO of the Complainant’s competitor, Ambition Solutions Inc. As no response has been filed the Panel accepts this evidence and will proceed to treat the Respondent and Ambition Solutions Inc. as being interchangeable.

Substantive Issues

Paragraph 4(a) of the Policy states that the Complainant must prove each of the three following elements in respect of the Disputed Domain Name:

(i) the Disputed Domain Name is identical to or confusingly similar to a trademark or service mark in which the Complainant has rights;

(ii) the Respondent has no rights or legitimate interests in the Disputed Domain Name;

(iii) the Disputed Domain Name has been registered and is being used in bad faith.

A. Identical or Confusingly Similar

The Panel finds that the Complainant has rights in the unregistered trademark LEVELELEVEN for the purpose of this proceeding. It has provided evidence of significant usage of this trademark over many years. By way of example the Complainant had over 10,000 visitors to its website in 2018, has over 4,700 Twitter followers (since 2011) and over 3,600 LinkedIn followers, and has been the subject of the numerous press articles. It has also been a sponsor of the Dreamforce conference since 2013. Dreamforce is one of the world’s largest software conferences held annually with over 100,000 people in attendance. Attendees range from employees of Fortune 500 companies to small business owners.

The Panel agrees with the approach in WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”) concerning this issue at paragraph 1.3:

“ What does a complainant need to show to successfully assert unregistered or common law trademark rights?

To establish unregistered or common law trademark rights for purposes of the UDRP, the complainant must show that its mark has become a distinctive identifier which consumers associate with the complainant’s goods and/or services.

Relevant evidence demonstrating such acquired distinctiveness (also referred to as secondary meaning) includes a range of factors such as (i) the duration and nature of use of the mark, (ii) the amount of sales under the mark, (iii) the nature and extent of advertising using the mark, (iv) the degree of actual public (e.g., consumer, industry, media) recognition, and (v) consumer surveys.

(Particularly with regard to brands acquiring relatively rapid recognition due to a significant Internet presence, panels have also been considering factors such as the type and scope of market activities and the nature of the complainant’s goods and/or services.)

Specific evidence supporting assertions of acquired distinctiveness should be included in the complaint; conclusory allegations of unregistered or common law rights, even if undisputed in the particular UDRP case, would not normally suffice to show secondary meaning. In cases involving unregistered or common law marks that are comprised solely of descriptive terms which are not inherently distinctive, there is a greater onus on the complainant to present evidence of acquired distinctiveness/secondary meaning”.

The Panel does not consider the term “leveleleven” to be descriptive and is satisfied on the evidence as filed that the Complainant has shown it has unregistered trademark rights in that term. It is referred to below as the “LEVELELEVEN Trademark”.

The Panel finds Disputed Domain Name is identical to the LEVELELEVEN Trademark. It is well established that the country code Top-Level Domain (“ccTLD”) “.co” does not generally affect the domain name for the purpose of determining whether it is identical or confusingly similar (see for example Rollerblade, Inc. v. Chris McCrady, WIPO Case No. D2000-0429).

Accordingly the Panel finds that the Disputed Domain Name is identical to the Complainant’s trademark and hence the first condition of paragraph 4(a) of the Policy has been fulfilled.

B. Rights or Legitimate Interests

Paragraph 4(c) of the Policy non-exhaustively lists three circumstances that demonstrate a right or legitimate interest in the domain name:

“(i) before any notice to you 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 (as an individual, business or other organisation) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or

(iii) you 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.”

None of these apply in the present circumstances. The Complainant has not authorized, licensed, or permitted the Respondent to register or use the Disputed Domain Name or to use the LEVELELEVEN Trademark. The Complainant has prior rights in the LEVELELEVEN Trademark which precede the Respondent’s registration of the Disputed Domain Name. The Complainant has therefore established a prima facie case that the Respondent has no rights or legitimate interests in the Disputed Domain Name and thereby the burden of production shifts to the Respondent to produce relevant evidence demonstrating rights or legitimate interests in respect of the Disputed Domain Name (see for example Do The Hustle, LLC v. Tropic Web, WIPO Case No. D2000-0624; Croatia Airlines d.d. v. Modern Empire Internet Ltd., WIPO Case No. D2003-0455).

The Panel finds that the Respondent has failed to produce any evidence to establish any rights or legitimate interests in the Disputed Domain Name. Accordingly the Panel finds that the Respondent has no rights or legitimate interests in the Disputed Domain Name and the second condition of paragraph 4(a) of the Policy has been fulfilled.

C. Registered and Used in Bad Faith

In the present circumstances, the distinctive nature of the LEVELELEVEN Trademark, and the evidence as to the extent of the reputation the Complainant enjoys in the LEVELELEVEN Trademark, and the identical nature of the Disputed Domain Name to the LEVELELEVEN Trademark, and the lack of any explanation from the Respondent as to why it registered the Disputed Domain Name leads the Panel to conclude the registration and use was in bad faith. In the present case, the Panel concludes that it is inconceivable that the Respondent selected the Disputed Domain Name independently and without knowledge of the Complainant or its software.

The evidence establishes that the Respondent, a competitor of the Complainant, used the Disputed Domain Name (which was in substance identical to the Complainant’s trademark) in a manner which would lead actual or potential customers looking for the Complainant’s website to a website which demonstrated the Respondent’s competing software. As such its behavior clearly amounts to that specified in paragraph 4(b)(iv) of the Policy as being evidence of registration and use in bad faith, namely “by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your website or other online location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of your website or location or of a product or service on your web site or location”.

Accordingly the Panel finds that the Disputed Domain Name has been registered and is being used in bad faith. Accordingly the third condition of paragraph 4(a) of the Policy has been fulfilled.

7. Decision

For all the foregoing reasons, in accordance with paragraphs 4 of the Policy and 15 of the Rules, the Panel orders that the Disputed Domain Name, <leveleleven.co>, be transferred to the Complainant.

Nick J. Gardner
Sole Panelist
Date: May 22, 2019