WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Pearl.com LLC v. Domain Privacy Group, Hilario Cuaresma, Peter C Baxter, Andrew Burns, Fundacion Private WhoIs

Case No. D2013-2225

1. The Parties

The Complainant is Pearl.com LLC (DBA JustAnswer and formerly known as JustAnswer LLC) of San Francisco, California, United States of America (“USA”), internally represented.

The Respondents are Domain Privacy Group of Burlington, Massachusetts, United States of America; Hilario Cuaresma of Melbourne, Australia; Peter C Baxter of Queanbeyan, Australia; Andrew Burns of Renown Park, Australia; and Fundacion Private WhoIs of Panama; or the person or persons who have used these names to register the disputed domain names.

2. The Domain Names and Registrars

The disputed domain names <just-ananswer.com>, <justananswer.net> and <just-ananswers.com> (“the first three domain names”) are registered with Domain.com, LLC (“Registrar 1”). The disputed domain name <justanswer.com.co> (“the fourth domain name”) is registered with CCI REG S.A. (“Registrar 2”).

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 21, 2013, naming the respondents as “c/o Domain Privacy Group” (for the first three domain names) and “Fundacion Private WhoIs” (for the fourth domain name), and the registrars as Registrar 1 (for the first three domain names) and Internet.bs Corp. (for the fourth domain name).

The Center transmitted its requests for registrar verification to the named registrars on December 23, 2013. Registrar 1 replied on December 23, 2013, confirming that it was the registrar of the first three domain names, that the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”) applied to these domain names, that they were on registrar-lock, and that the registration agreement was in English. Registrar 1 stated that the respondent identified in the Complaint was the registrant of these domain names and provided the full contact details for these domain names held on its WhoIs database. However, these contact details identified the registrants as Hilario Cuaresma for <justananswer.net>, Peter C Baxter for <just-ananswer.com> and Andrew Burns for <just-ananswers.com>.

Internet.bs Corp. replied to the request for registrar verification on January 7, 2014, stating that it was not the registrar of the fourth domain name, and forwarded the verification request to Registrar 2. The latter responded to the Center the same day, stating that it was the registrar and the respondent, Fundacion Private Whois, was the registrant of the fourth domain name; that the UDRP applied, that this domain name had been locked, and that the registration agreement was in English. Registrar 2 also provided the full contact details held on its WhoIs database in respect of the registration.

The Center notified the Complainant by email of January 9, 2014, that the registrants of the first three domain names differed from those identified in the Complaint according to the information provided by Registrar 1, and requested the Complainant either to file a separate complaint for one or more of the domain names and amend the Complaint accordingly; or to amend the Complaint by adding the recorded registrants of the first three domain names as respondents and demonstrating that the registrants are in fact the same entity. The Center also sent the Complainant a Complaint Deficiency Notification on the same date, referring to the incorrect identification of the registrar of the fourth domain name and a missing page.

The Complainant filed an amended Complaint on January 14, 2014, identifying the Respondents as Hilario Cuaresma, Peter C Baxter, Andrew Burns and Fundacion Private WhoIs, and the registrars as Registrar 1 (for the first three domain names) and Registrar 2 (for the fourth domain name), and including reasons why the Complainant considered that the same person was in fact the registrant of all four domain names.

The Center verified that the amended Complaint satisfied the formal requirements of the 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 paragraphs 2(a) and 4(a) of the Rules, the Center formally notified the amended Complaint to the Respondents, and the proceedings commenced on January 21, 2014. In accordance with paragraph 5(a) of the Rules, the due date for Response was February 10, 2014. The Respondents did not submit any response. Accordingly, the Center notified the Respondents’ default on February 11, 2014.

The Center appointed Jonathan Turner as the sole panelist in this matter on February 14, 2014. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with paragraph 7 of the Rules. The Panel addresses below whether the four domain names are properly joined in the same complaint. Subject to this point, having reviewed the file, the Panel finds that the amended Complaint complied with applicable formal requirements, was duly notified to the Respondents and has been submitted to a properly constituted Panel in accordance with the UDRP, the Rules and the Supplemental Rules.

The Panel will refer below to the amended Complaint as the “Complaint”.

4. Factual Background

The Complainant operates commercial websites using the mark JUST ANSWER located by the web addresses “www.justanswer.com”, “www.justanswer.co.uk”, “www.justanswer.de”, “www.justanswer.es” and “www.justanswer.jp”, enabling consumers to ask questions and receive answers from experts on the subject through online forums, chat-rooms and bulletin boards. The Complainant has been carrying on this business since September 2004 and secured the registration of the mark JUST ANSWER on the Principal Register of the United States Patent and Trademark Office (“USPTO”) in January 2007.

The disputed domain names were registered on the following dates: <just-ananswer.com> on April 7, 2013; <justananswer.net> on March 24, 2013; <just-ananswers.com> on April 17, 2013; and <justanswer.com.co> on August 6, 2013.

On or about May 26, 2013, the Complainant was contacted by a consumer alleging that he had been defrauded by an online company with which he had transacted because of a “review” in the form of an answer to a question on the Complainant’s website, stating that this company was legitimate.

On investigation, the Complainant found that the question and answer were on a website at “www.just‑ananswer.com” (i.e. using the first of the disputed domain names) that otherwise resembled the Complainant’s own website. The purported answer was under the username of a real user of the Complainant’s own website. Links on the web page at “www.just-ananswer.com” were directed to other pages of the Complainant’s website.

The Complainant wrote a cease and desist letter on May 31, 2013 to the registrant of the first domain name as identified in the publicly available WhoIs information. The offending website was removed but the domain name was not transferred to the Complainant as it had demanded.

On June 5, 2013, the Complainant found a website at “www.justananswer.net” (i.e. using the second of the disputed domain names) which was identical to the previous website at “www.just-ananswer.com”, except that a different company was named in an otherwise similarly-worded question and answer, endorsing the company as legitimate. The Complainant sent a cease and desist letter to the registrant of the second domain name as identified in the publicly available information. Again, the content was taken down but the domain name was not transferred to the Complainant.

On August 6, 2013, the Complainant found that the objectionable content had been reposted at
“www.just-ananswer.com” (i.e. using the first of the disputed domain names), with a different company named in the otherwise similar question and answer. The Complainant sent a further cease and desist letter to the apparent registrant. Again, the content was taken down but the domain name was not transferred to the Complainant.

On September 19, 2013, the Complainant found a website at “www.just-ananswers.com” (i.e. using the third of the disputed domain names) which was identical to the original website at “www.just-ananswer.com”, except that yet another company was endorsed in an otherwise similarly-worded question and answer. The Complainant sent a cease and desist letter to the registrant of this domain name as identified in the publicly available information. Again, the content was taken down but the domain name was not transferred to the Complainant.

On November 2, 2013, the Complainant found a website at “www.justanswer.com.co” (i.e. using the fourth of the disputed domain names) which was identical to the original website at “www.just-ananswer.com”, except that another company was endorsed in an otherwise similarly-worded question and answer. The Complainant did not send a cease and desist letter to the registrant of this domain name, and proceeded to file the Complaint.

5. Parties’ Contentions

A. Complainant

The Complainant submits that the circumstances set out above indicate that the disputed domain names were all registered by the same entity, despite the different names given as registrants, and that consolidation of the disputes relating to them is warranted.

The Complainant contends that the disputed domain names are all confusingly similar to its registered mark JUST ANSWER.

The Complainant maintains that the Respondent does not have any right or legitimate interest in respect of the disputed domain names. The Complainant states that it has not authorized anyone to use these domain names, that the first of them was registered in March 2013, more than nine years after the Complainant commenced its use of the JUST ANSWER mark, that to the best of the Complainant’s knowledge the Respondent has not made any bona fide use of the disputed domain names or preparations for such use; and that the disputed domain names appear to have been registered with the sole intent of misleading consumers, causing harm to the Complainant’s mark in the process.

The Complainant alleges that the disputed domain names were registered and are being used in bad faith. The Complainant infers from the history set out above that the disputed domain names were registered in a deliberate, bad faith attempt to attract Internet users to the Respondent’s infringing websites for commercial gain by infringing the Complainant’s rights in the mark JUST ANSWER, thereby damaging the mark and causing real financial loss to the defrauded consumer.

The Complainant requests a decision that the disputed domain names be transferred to it.

B. Respondent(s)

As stated above, the Respondent or Respondents did not reply to the Complainant’s contentions.

6. Discussion and Findings

A. Consolidation

Under paragraph 3(c) of the Rules, “The complaint may relate to more than one domain name, provided that the domain names are registered by the same domain-name holder”. Under paragraph 10(e) of the Rules, “A Panel shall decide a request by a Party to consolidate multiple domain name disputes in accordance with the Policy and these Rules”.

In Speedo Holdings B.V. v. Programmer, Miss Kathy Beckerson, John Smitt, Matthew Simmons, WIPO Case No. D2010-0281, the panel discussed earlier decisions on the application of these rules and the principles which should be applied. The Panel concluded that “the consolidation of multiple registrants as respondents in a single administrative proceeding may in certain circumstances be appropriate under paragraph 3(c) or 10(e) of the Rules provided the complainant can demonstrate that the disputed domain names or the websites to which they resolve are subject to common control, and the panel, having regard to all of the relevant circumstances, determines that consolidation would be procedurally efficient and fair and equitable to all parties”.

This Panel gratefully adopts this analysis and conclusion, with the supplementary observation that a complaint by a single complainant relating to several domain names should normally be allowed where the evidence indicates that the relevant domain names were registered by the same person, albeit using different aliases.

In this case, the Panel finds on the evidence that the disputed domain names are probably registered to the same entity using different aliases. At all events, they appear to be subject to common control and in the circumstances consolidation would be procedurally efficient, fair and equitable to all parties, particularly as the facts set out in section 4 above are relevant to all four domain names. In all the circumstances, the Panel concludes that the disputes relating to the four domain names should be addressed in a single proceeding on the basis of the Complaint.

B. Requirements of the UDRP

In accordance with paragraph 4(a) of the Policy, in order to succeed in this proceeding in relation to each of the disputed domain names, the Complainant must prove; (i) that this domain name is identical or confusingly similar to a mark in which it has rights; (ii) that the Respondent has no rights or legitimate interests in respect of this domain name; and (iii) that this domain name has been registered and is being used in bad faith. It is appropriate to consider each of these requirements in turn.

In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from the Respondents’ default as it considers appropriate. This includes the acceptance of plausible evidence of the Complainant which has not been disputed.

In accordance with its conclusion that the disputed domain names are in reality registered to a single entity, the Panel will refer in its reasons below to the Respondent in the singular, but this is to be taken as covering all of the Respondents if there are more than one.

C. Identical or Confusingly Similar

The Panel finds that the Complainant has registered rights in the mark JUST ANSWER and that each of the disputed domain names is confusingly similar to this mark.

The extra “an” in three of the domain names could be an indefinite article or a typographical error; the extra “s” in the third domain name could be a plural indication or a typographical error. The use of hyphens between words and different Top-Level Domain (“TLD”) suffixes in some of the domain names is insignificant in distinguishing the domain names from the Complainant’s mark. The risk of confusion is further substantiated by the evidence of actual confusion by a consumer.

The first requirement of the UDRP is satisfied.

D. Rights or Legitimate Interests

The Panel finds on the undisputed evidence that the Respondent has not used any of the disputed domain names or any corresponding name for a bona fide offering of goods or services, nor made any preparations for such use. Nor has it made any legitimate noncommercial or fair use without intent for commercial gain.

On the contrary, the undisputed facts set out above show that the Respondent has used the disputed domain names illegitimately and unfairly, as part of a scheme for defrauding members of the public, by misleading them into believing that endorsements on their web pages are genuine endorsements by users of the Complainant’s well-established website.

It is also evident that the Respondent is not commonly known by any of the disputed domain names or a corresponding name and that the Complainant has not authorized the Respondent to use the disputed domain names.

On the material in the case file, the Panel is satisfied that there is no other basis on which the Respondent could claim any right or legitimate interest in any of the disputed domain names. The second requirement of the UDRP is satisfied.

E. Registered and Used in Bad Faith

The Panel finds on the undisputed evidence that each of the disputed domain names has been used intentionally to attract Internet users to the Respondent’s web pages by creating a likelihood of confusion with the Complainant’s JUST ANSWER mark as to the source, sponsorship, affiliation or endorsement of those web pages, for commercial gain derived from the fraudulent inducement of consumers to transfer funds on the faith of bogus endorsements on those web pages.

Under paragraph 4(b)(iv) of the UDRP this constitutes evidence of registration and use in bad faith. There is no material in the file which displaces this presumption. On the contrary, the scheme revealed by the undisputed evidence is one of the more egregious frauds committed using a confusing domain name that has come before this Panel since the UDRP was instituted.

The Panel concludes that the disputed domain names were all registered and have been used in bad faith. All three requirements of the UDRP are satisfied and the disputed domain names should be transferred to the Complainant in accordance with its request.

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 names <just-ananswer.com>, <justananswer.net>, <just-ananswers.com> and <justanswer.com.co> be transferred to the Complainant.

Jonathan Turner
Sole Panelist
Date: February 18, 2014