Nu Mark LLC v. Perfect Privacy, LLC / Kyle Messier, Apex Juice
Case No. D2018-1082
1. The Parties
The Complainant is Nu Mark LLC of Richmond, Virginia, United States of America (“United States”), represented by CSC Digital Brand Services AB, Sweden.
The Respondent is Perfect Privacy, LLC of Jacksonville, Florida, United States / Kyle Messier, Apex Juice of Northfield, Vermont, United States.
2. The Domain Name and Registrar
The disputed domain name <apexjuice.online> is registered with Network Solutions, LLC (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on May 15, 2018. On May 15, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On May 15, 2018, 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. The Center sent an email communication to the Complainant on May 16, 2018 providing the registrant and contact information disclosed by the Registrar and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on May 18, 2018.
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 May 22, 2018. In accordance with the Rules, paragraph 5, the due date for Response was June 11, 2018. The Respondent submitted email communications on June 12, 2018 but did not submit any formal response. Accordingly, the Center notified the Parties on June 12, 2018 that it would proceed to the Panel appointment.
The Center appointed William F. Hamilton as the sole panelist in this matter on June 18, 2018. 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 owns a number of trademark registrations for the mark APEX (the “Mark”) for the sale of electronic vaporing related products and e-cigarettes. The Complainant is a wholly owned subsidiary of the Altria Group, Inc. The Complainant asserts sales of vaporing related products under the Mark commenced in 2016.
The disputed domain name was registered on January 30, 2018 and resolves to a website offering competing goods.
5. Parties’ Contentions
The Complainant asserts the disputed domain name is confusing similar to the Mark because the disputed domain name is composed of the Mark, the generic suffix “juice” and the generic Top-Level Domain (“gTLD”) “.online”. The Complainant asserts the Respondent has no rights or legitimate interest in the disputed domain name and that disputed domain name was registered and being used in bad faith to lure unsuspecting Internet users to the Respondent’s website offering for sale e-cigarette and vaping products.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
A. Identical or Confusingly Similar
The Panel finds the disputed domain name is confusingly similar to the Complainant’s Mark.
The disputed domain name incorporates the entire Mark and merely appends to the Mark the dictionary term “juice”. The gTLD “.online” does not prevent the confusing similarity arising from the incorporation of the Complainant’s Mark in its entirety in the disputed domain name. Nu Mark LLC v. Contact Priva y Inc. Customer 0148807310 / Joseph Casey, Apex Vapor,
WIPO Case No. D2017-2083 (transferring <apexvapor.net>).
The Complainant has met its burden of proof under paragraph 4(a)(i) of the Policy.
B. Rights or Legitimate Interests
The Panel finds that the Respondent does not have any rights or legitimate interests in the disputed domain name.
There is no evidence that the Respondent is commonly known by the disputed domain name. Moreover, the Respondent has failed to respond to the Complainant or to provide information identifying bona fide commercial use of the disputed domain name. The Complainant has disavowed licensing or providing any permission to the Respondent to use the Mark or the disputed domain name.
The Complainant has met its burden of proof under paragraph 4(a)(ii) of the Policy.
C. Registered and Used in Bad Faith
The Panel finds on this limited record that the disputed domain name was registered and used in bad faith.
It strains credulity to believe that the Respondent happened by chance to compose the disputed domain name that fully incorporates the Complainant’s Mark and then also to have the disputed domain name resolve to a website offering vaping products mirroring the products offered by the Complainant. The disputed domain name’s resolution to a website offering for sale competing products is strong evidence in and of itself of bad faith registration and use. Groupon v. Ezriel Duchman / Oneandone Private Registration,
WIPO Case No. D2014-1985.
The Complainant has met its burden of proof under paragraph 4(a)(iii) of the Policy.
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 name <apexjuice.online> be transferred to the Complainant.
William F. Hamilton Sole Panelist Date: June 25, 2018
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