We wrote about this WIPO case back in June when Timeslice Limited started WIPO proceedings on case number D2020-1584 at the time we wondered why they were going after this domain name, The Dot Com was and is still is available to acquired from HugeDomains.com for only $3,795.
The decision made my the single person panelist Georges Nahitchevansky in my opinion is correct and if I was Timeslice Limited, would ditch trying to get the domain name hack HostMy.Cloud and acquire the exact match dot com to used instead for such a low cost, you can read the full outcome below.
Timeslice Limited T/A Host My Cloud v. Joshua Helbig
Case No. D2020-1584
1. The Parties
Complainant is Timeslice Limited T/A Host My Cloud, United Kingdom, represented by Timeslice limited, United Kingdom.
Respondent is Joshua Helbig, Australia, self-represented.
2. The Domain Name and Registrar
The disputed domain name is registered with GoDaddy.com, LLC (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 17, 2020. On June 17, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On June 18, 2020, the Registrar transmitted by email to the Center its verification response confirming that Respondent is listed as the registrant and providing the contact details. Between June 18, 2020 and June 29, 2020, the Parties exchanged several email communications regarding the use of the disputed domain name, and possible settlement. No suspension was requested.
The Center verified that the 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 July 2, 2020. In accordance with the Rules, paragraph 5, the due date for Response was July 22, 2020. On July 2, 2020, Respondent requested to extend the Response due date due to the current COVID-19 situation. The Response due date was extended to August 1, 2020 but no substantive response was filed with the Center. On August 3, 2020, the Center informed the Parties that it would proceed to appoint the Panel. On August 14, 2020, the Center received an email communication from Complainant requesting to expedite the proceeding.
The Center appointed Georges Nahitchevansky as the sole panelist in this matter on August 17, 2020. 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, Timeslice Limited, is a company based in the United Kingdom. Complainant uses the trading name “Host My Cloud” and provides cloud services under that name. Complainant owns and uses the domain name to promote its services. Complainant registered the domain name on October 30, 2014.
Respondent is an individual based in Australia. Respondent registered the disputed domain name on February 16, 2016. The disputed domain name is currently being used with a web page with links to website and hosting services offered by third parties.
5. Parties’ Contentions
Complainant contends that it has rights in Host My Cloud (i) by virtue of Complainant’s use of Host my Cloud as a business name, and (ii) through Complainant’s registration of the domain name in October 2014 and its use as the primary website for Complainant’s Host My Cloud services.
Complainant maintains that the disputed domain name is similar to Complainant’s Host My Cloud business name. In that regard, Complainant notes that the disputed domain name was registered by Respondent in 2016 and that Respondent has only used the disputed domain name as a parked domain.
Complainant argues that Respondent does not have a legitimate interest in the disputed domain name as Respondent has never used the disputed domain name with an active website, and because Respondent has no registered company, trademark or active business at, or connected with, the disputed domain name. Complainant contends that Respondent must have purchased the disputed domain name for monetary gain.
Complainant asserts Respondent’s sole purposes for registering the disputed domain name was to profit from it by selling it an inflated price. Complainant notes that it made several attempts to approach Respondent through a domain broker and domain agent, but failed to “come to any dialog or settlement”.
Respondent did not formally respond to Complainant, but sent several informal communications to Complainant that were copied to the Center and the Registrar. In these communications Respondent asserts that he did not register the disputed domain name to make money from the disputed domain name by reselling it. Respondent further asserts that he operates an ISP and is “looking to sell services under the host my cloud banner in Australia”. Respondent maintains that he registered the disputed domain name for a website that has been under development. In that regard, Respondent provides a link to a website at “www.datacentre.wpengine.com”.
6. Discussion and Findings
Under paragraph 4(a) of the Policy, to succeed Complainant must satisfy the Panel that:
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which Complainant has rights;
(ii) Respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) the disputed domain name was registered and is being used in bad faith.
Here, although Respondent has failed to respond substantively to the Complaint, the default does not automatically result in a decision in favor of Complainant, nor is it an admission that Complainant’s claims are true. The burden remains with Complainant to establish the three elements of paragraph 4(a) of the Policy by a preponderance of the evidence. A panel, however, may draw appropriate inferences from a respondent’s default in light of the particular facts and circumstances of the case, such as regarding factual allegations that are not inherently implausible as being true. See section 4.3 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”); see also The Knot, Inc. v. In Knot We Trust LTD, WIPO Case No. D2006-0340.
A. Identical or Confusingly Similar
Complainant’s Complaint is quite sparse and Complainant does not reference any existing or pending trademark registration or application for the mark HOST MY CLOUD. Complainant simply claims that it has adopted the business name Host My Cloud and that it has used the name Host My Cloud on its website at “www.hostmycloud.co.uk”.
While the evidence in the record is limited, the Panel notes that Complainant uses the name and mark HOST MY CLOUD on its website in connection with its services. Thus for purposes of the first element only, the Panel concludes that Complainant has sufficient rights in the HOST MY CLOUD name and mark. The remaining question under the first element of the Policy is whether the disputed domain name (typically disregarding the generic Top-Level Domain such as “.com”) is identical or confusingly similar with Complainant’s mark. See B & H Foto & Electronics Corp. v. Domains by Proxy, Inc. / Joseph Gross, WIPO Case No. D2010-0842. The threshold for satisfying this first element is low and generally panels have found that fully incorporating the identical mark in a disputed domain name is sufficient to meet the threshold.
In the instant proceeding, the disputed domain name is identical to Complainant’s claimed HOST MY CLOUD name and mark, as the disputed domain name in its totality with the Top-Level Domain (“TLD”) extension is identical to the claimed HOST MY CLOUD name and mark. UDRP panels have recognized that where the applicable TLD and the second-level portion of the domain name in combination reflect the relevant trademark, in what is often called “spanning the dot” cases, panels may consider the domain name in its entirety for purposes of assessing confusing similarity. See WIPO Overview 3.0 at section 1.11.3. The Panel therefore finds that Complainant has satisfied the requirements of paragraph 4(a)(i) of the Policy in establishing its rights in Complainant’s claimed HOST MY CLOUD name and mark and in showing that the disputed domain name is identical or confusingly similar to that trademark.
B. Rights or Legitimate Interests
Given that Complainant’s Complaint fails on the third element, as discussed below, the Panel does not address whether Respondent has rights or legitimate interests in the disputed domain name.
C. Registered and Used in Bad Faith
Under paragraph 4(a)(iii) of the Policy, a complainant must establish the conjunctive requirement that the respondent registered and is using a disputed domain name in bad faith. The assessment of whether a disputed domain name was registered in bad faith has to be assessed at the time of the registration of the disputed domain name, which in this case is February 16, 2016.
Complainant asserts that it registered and has been using the domain name for its primary website since 2014. However, Complainant has failed to provide evidentiary support for that contention. Similarly, Complainant has provided no evidence regarding its use of the HOST MY CLOUD name and mark prior to February 16, 2016, or the extent of such use and what reputation Complainant’s claimed HOST MY CLOUD mark enjoyed at the time Respondent registered the disputed domain name. Indeed, Complainant claims that it is a global provider of cloud services, but provides no evidence that its services are available anywhere beyond the United Kingdom in 2020.
While Complainant might have this evidence in its possession, it decided to proceed in this matter with a bare-bones Complaint and asserted a case based on its current use of HOST MY CLOUD on its website at and the fact that Respondent has not used the disputed domain name to date and did not respond to some efforts by a domain name broker working for Complainant to purchase the disputed domain name.
Given Respondent’s emails and the appearance of Respondent’s claimed website thereafter, the Panel is somewhat suspicious of whether Respondent is actually developing a service as he claims as opposed to having acquired the domain name for profit. The Panel notes that there have been a number of examples where a party registering a span the dot domain name has done so by registering a domain name that in combination with a TLD extension copies the trademark or name of another party. Such a claim, though, would be for a complainant to argue and prove with evidence. Here, however, Complainant’s case, which is sparse on Complainant’s own rights, is based primarily on assumptions and speculation arising from the fact that the Respondent has not used the disputed domain name and did not respond to efforts by Complainant to purchase the disputed domain name. Such unsubstantiated and conclusory allegations simply do not establish bad faith registration of the disputed domain name.
As there is no documentary evidence in the record concerning Complainant’s alleged rights in HOST MY CLOUD, and the extent thereof, in February 2016, and given that there is no evidence that would confirm that Respondent’s assertions are pretextual or that Respondent has a pattern of registering and using domain names based on the marks of others, the Panel is not convinced that Complainant has proven its case.
For the foregoing reasons, the Complaint is denied.
Date: August 29, 2020