Bad Faith “impossible” domain reg’d 11-years ago

National Arbitration Forum Ruling: Complainant Domain TheSnugg.com vs Respondent Domain Snugg.com

RELIEF SOUGHT

Complainant requests that the domain name be transferred from Respondent to Complainant.

PARTIES’ CONTENTIONS

A. Complainant:

1. Complainant has rights in the SNUGG mark which it uses in connection with protective holder and cases, retaining straps, and stands all adapted for portable electronic equipment;

2. Complainant registered the SNUGG mark (Reg. No. 4,075,899 filed May 17, 2011; registered December 27, 2011) through the United States Patent and Trademark Office (“USPTO”);

3. Respondent registered the domain name on September 14, 1999;

4. The domain name is identical to Complainant’s SNUGG mark;

5. Respondent is not commonly known by the disputed domain name;

6. The domain name resolves to a website which promotes products which compete with the products Complainant provides through links to Complainant’s competitors;

7. The domain name is not being used for either a bona fide offering of goods or services nor a legitimate noncommercial or fair use;

8. Respondent’s registration and use of the domain name are a product of bad faith;

9. Respondent registered and is using the disputed domain name to take commercial advantage of Internet users’ mistakes as to the source of the disputed domain name.

B. Respondent

Respondent did not submit a Response.

FINDINGS

For the reasons set forth below, the Panel finds Complainant is not entitled to the relief requested.

DISCUSSION

Paragraph 15(a) of the Rules instructs this Panel to “decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable.”

Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:

(1) the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and

(2) Respondent has no rights or legitimate interests in respect of the domain name; and

(3) the domain name has been registered and is being used in bad faith.

(4) Paragraph 15(a) of the Rules instructs this Panel to “decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable.”

In view of Respondent’s failure to submit a response, the Panel shall decide this administrative proceeding on the basis of Complainant’s undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).

Identical and/or Confusingly Similar and Rights or Legitimate Interests

As the Panel finds Complainant failed to satisfy Policy ¶ 4(a)(ii) (Registration and Use in Bad Faith), the Panel declines to analyze Policy ¶ 4(a)(i) and Policy ¶ 4(a)(ii). See Creative Curb v. Edgetec Int’l Pty. Ltd., FA 116765 (Nat. Arb. Forum Sept. 20, 2002) (finding that because the complainant must prove all three elements under the Policy, the complainant’s failure to prove one of the elements makes further inquiry into the remaining element unnecessary).

Registration and Use in Bad Faith

Complainant does not allege common law rights in the mark. Complainant’s trademark rights in its SNUGG mark date back to May 17, 2011. Respondent’s registration of the disputed domain name on September 14, 1999, predates Complainant’s rights in the SNUGG mark by over 11 years. There is no evidence presented that Complainant existed when the domain name was registered. Therefore, the Panel finds that Respondent did not register the disputed domain name in bad faith under Policy ¶ 4(a)(iii). See Telecom Italia S.p.A. v. NetGears LLC, FA 944807 (Nat. Arb.Forum May 16, 2007) (determining the respondent could not have registered or used the disputed domain name in bad faith where the respondent registered the disputed domain name before the complainant began using the mark); see also Aspen Grove, Inc. v. Aspen Grove, D2001-0798 (WIPO Oct. 5, 2001) (finding that it is “impossible” for the respondent to register disputed domain name in bad faith if the complainant company did not exist at the time of registration).

Complainant has not proven this element.

DECISION

Complainant having failed to establish all three elements required under the ICANN Policy, the Panel concludes that relief shall be DENIED.

Accordingly, it is ORDERED that the domain name REMAIN WITH Respondent.

Honorable Karl V. Fink (Ret.), Panelist

Dated: March 26, 2012

Death Threats via a DDOS Attack

Hi all, Some of you may or may not be aware that for the last 10 days my blog, Whizzbangsblog.com, has been down due to a consistent DDOS attack. The reason for the attack was directly due to my articles on people that are committing fraud in the domain industry by pumping bad traffic through domains, purchasing parking accounts and stealing good domain owner’s identities. This behaviour is rampant and is costing us all millions of dollars.

Initially the fraudsters struck at my blog and then moved the DDOS to my company (which is OK BTW), to michaelgilmour.com and now finally back to whizzbangsblog.com. They have been communicating to me via the referral URL which in the last instance was the following:

173.245.53.77 – - [06/Sep/2011:00:13:51 +1000] “GET / HTTP/1.0″ 200 316 “http://lastwarning-shutdown-yourblog-or-die-withyourparklogic.com/” “Mozilla/5.0(compatible;MSIE 8.0;Windows NT 6.0;InfoPath.1;.NET CLR 3.0.04506.648;.NET CLR 2.0.50727)”

It’s the first time in my life I received such a threat and upon speaking with the police they indicated that I should take it seriously. I have now contacted CERT (Computer Emergency Response Team) in both the USA and Australia, Victorian Police, Federal Police, FBI (still trying to find the right person) and I have now been told by the police to contact the Secret Service Cyber-crime area in Washington.

In one of my blogs I posted an email that had been circulating that related to purchasing parking accounts and the response was incredible. Many domainers didn’t know about this activity and why it was bad for their reputation and the industry they operate in. My guess is that many of them stopped selling accounts and this has caused the fraudsters some problems…..hence the DDOS.

Our industry is under threat from unscrupulous scumbags and I have no intention in bowing down to threats like this. I do not negotiate with terrorists that hijack an industry that I love and steal from friends that I greatly respect. I would ask this of my fellow domainers. Please support me in exposing these people and feel free to publish this article – get it off my server ASAP. It will mean a brave stand and I will not feel any ill will for those of you who do not feel you are able to fight this fight.

I will keep posting here as long as possible in the meantime you can see me updating facebook.

Warmest Regards,

Michael Gilmour

Guest Article, written Seot 8, 2011

Good News! FTC Launches Investigation of Google

IT’S ABOUT TIME!

The Federal Trade Commission is preparing to serve Google with legal subpoenas, starting a major antitrust investigation of Google.

The U.S. FTC will be investigating if Google has abused its dominating market position to suppress competition. The new FTC investigation of Google is likely setting off serious alarm bells at Google due to its wide-ranging potential and scope.

This new investigation of Google involves their two key revenue areas of search and advertising. Other internet players have been complaining for years how Google’s search algorithm appears to be designed to drive web-surfers more to Google’s own services than their websites.

A major new concern for Google is that it’s widely alleged Google’s dominating position in online-advertising gives them far too much control over a businesses success or its failure. We wish the FTC the best of luck and succcess in its well deserved Google investigation which is so extremely negative to consumers and other online businesses.

Mo doubt about it, Google has become far too big and powerful. Would not be too surprised to see Google’s brand in your local supermarket soon on food products like Tomato Ketchup!

You can file a consumer complaint against Google by clicking-on the picture below:

Example of a Cleverly Disguised Hijacking Attempt

Watch out for all the very well done cleverly disguised attempts to get your login name and password to various websites such as PayPal, Amazon.com, your Bank accounts, Facebook, plus email providers such as Gmail, and other sites.

For example, reprinted below is one of the more clever ones making the rounds today, which I am sure could work very well for the hijacker of your account:

“Gmail technology team has recently launched Google web software to protect and secure all Gmail Accounts. This system also enhanced efficient networking and fully supported browser. You need to upgrade to a fully supported browser by filling out the details below for validation purpose and to confirm your details on the new webmaster Central system.

ID:
PASSWORD:
LOCATION:

Note: Your account will be disabled permanently if you failed to provide the details required above within 72hours. Gmail will not be held responsible for your negligence. The Google web Service.”

Website Links/Ads Don’t Give Court Jurisdiction

A recent decision by United States District Court in Missouri clarified an important distinction regarding jurisdictional issues within internet law about intrenet law jurisdictional issues. The Federal Court entered judgment in favor of the defendant, a Costa Rican software company, finding no personal jurisdiction.

The Federal Court decision hinged upon the nature of the software company’s hyperlinks on its website. The District Court held the defendants website, which was passive, but linked to inter-active sites, did not provide the requisite minimum contacts to satisfy personal jurisdiction because the company did not control the target sites.

In the USA, for a court to enter a legally valid judgment against a person, the court must first have personal jurisdiction over that person. An out of state defendant cannot be subject to personal jurisdiction if that defendant has not had a sufficient amount of “minimum contact” with the state where jurisdiction is claimed. A defendant must purposely “reach in,” to that state in order to be sued there legally.

In the context of the internet, the prevailing trend by courts is to rule that jurisdiction is proper when the defendant maintains a website that is interactive in nature, and/or a site which gives users an opportunity to conduct business or otherwise provide input to the website.

This means that a person operating an interactive website opens themselves to jurisdiction in any state from which the website receives visitors. Whereas maintaining a passive website, one which merely displays information for the user to peruse, i.e. a blog, is not sufficient to establish minimum contacts. However, the question in this case turned on what the determination should be when a passive website displays links/advertisements for interactive sites?

The court in this case answered that question by ruling that the third-party target sites were irrelevant to the minimum contacts analysis. Jurisdiction should turn on the company’s purposeful activities, rather than uncertain and immeasurable ties between the company and the third party’s online contacts with the state.

The court stated, “The activity of those hyperlinked websites supports jurisdiction only if defendants maintain some responsibility for or control over the activities and contents of the third-party sites.” While the legal debate surrounding the interactivity test continues, with many detractors arguing it’s web 1.0 specific, this ruling should be encouraging for many website operators, and especially encouraging to Sedo users.

If the district court would have ruled the other way, it would have meant domain name owners who use ppc ads and parking pages could be subject to almost universal personal jurisdiction depending on the interactive nature of the linked web site. Article courtesy of Sedo.com by ~Ryan Sadler, Legal Team.

Any comments you have about Internet intellectual property.com and website advertising would be appreciated, which feedback we are looking for to expand our website. You can visit our IP Law site by going to Internet Intellectual Property now, or clicking-on the picture below. Thank you.