eBay Inc. v. eBay Vero / eBay VeRO Program
Claim Number: FA1903001835268
Complainant is eBay Inc. (“Complainant”), represented by Madelon Lapidus of Holland & Hart LLP, Colorado, USA. Respondent is eBay Vero / eBay VeRO Program (“Respondent”), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <ebayvero.com>, registered with GoDaddy.com, LLC.
The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.
Paul M. DeCicco, as Panelist.
Complainant submitted a Complaint to the Forum electronically on March 21, 2019; the Forum received payment on March 21, 2019.
On March 22, 2019, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <ebayvero.com> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, LLC registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On March 25, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 15, 2019 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@ebayvero.com. Also on March 25, 2019, the Written Notice of the Complaint, notifying Respondent of the e-mail addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
Having received no response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.
On April 18, 2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Paul M. DeCicco as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant contends as follows:
Complainant, eBay Inc., is a global leader in the field of online commerce and shopping.
Complainant has rights in the EBAY and VERO marks based upon registration with the United States Patent and Trademark Office (“USPTO”).
Respondent’s <ebayvero.com> is identical or confusingly similar to Complainant’s marks as it merely combines both of the EBAY and VERO marks, and adds the generic top-level domain (“gTLD”) “.com.”
Respondent has no rights or legitimate interests in the <ebayvero.com> domain name. Respondent is not licensed or authorized to use Complainant’s EBAY or VERO marks and is not commonly known by the disputed domain name. Additionally, Respondent doesn’t use the disputed domain for any bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent uses the disputed domain name to divert Internet users to Complainant’s own website. In addition, Respondent uses the disputed domain name to impersonate Complainant in furtherance of a fraudulent, phishing scheme.
Respondent registered or uses the <ebayvero.com> domain name in bad faith. Respondent attempts to divert Internet users to Complainant’s own website. Respondent also attempts to impersonate Complainant as part of a phishing scheme. Furthermore, Respondent had actual knowledge of Complainant’s marks when it registered the <ebayvero.com> domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has trademark rights in both the EBAY and VERO marks.
Complainant’s rights in its relevant trademarks predate Respondent’s registration of the at-issue domain name.
Respondent is not affiliated with Complainant and had not been authorized to use Complainant’s trademark in any capacity.
Respondent uses the at-issue domain name to impersonate Complainant in furtherance of a fraudulent, phishing scheme and redirect visitors to its own website.
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.
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(f), 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 set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
The at-issue domain name is identical to a trademark in which Complainant has rights.
Complainant’s USPTO trademark registrations for EBAY and VERO are conclusive evidence of its rights in a mark under Policy ¶ 4(a)(i). See Microsoft Corp. v. Burkes, FA 652743 (Forum Apr. 17, 2006) (“Complainant has established rights in the MICROSOFT mark through registration of the mark with the USPTO.”).
Additionally, Respondent’s <ebayvero.com> domain name simply combines two of Complainant’s trademarks and adds the top level domain name “.com” thereto. The differences between Complainant’s trademarks and Respondent’s domain name are insufficient to differentiate the trademarks from domain name for the purposes of Policy ¶ 4(a)(i). See Hewlett-Packard Development Company, L.P. v. Yangxiaoyi / Qingyuan Tianheng Trading Company Ltd., FA 1625637 (Forum June 23, 2015) (finding the combination of a complainant’s marks does not allow a respondent to avoid a finding of confusing similarity under Policy ¶4(a)(i)); see also Trip Network Inc. v. Alviera, FA 914943 (Forum Mar. 27, 2007) (concluding that the affixation of a gTLD to a domain name is irrelevant to a Policy ¶ 4(a)(i) analysis). The Panel may agree with Complainant and find that the <ebayvero.com> domain name is confusingly similar to Complainant’s marks per Policy ¶ 4(a)(i).
Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006). Since Respondent failed to respond, Complainant’s prima facie showing acts conclusively.
Respondent lacks both rights and legitimate interests in respect of the at-issue domain name. Respondent is not authorized to use Complainant’s trademark in any capacity and, as discussed below, there are no Policy ¶4(c) circumstances from which the Panel might find that Respondent has rights or interests in respect of the at‑issue domain name.
WHOIS information for <ebayvero.com> domain name identifies the domain name’s registrant as “eBay Vero / eBay VeRO Program.” Respondent’s self-identification reflected in the WHOIS information is self-serving, unauthenticated, and a further misappropriation of Complainant’s trademarks. Importantly, the full record before the panel contains no evidence that tends to prove that Respondent is commonly known by <ebayvero.com>. The Panel therefore concludes that Respondent is not commonly known by the <ebayvero.com> domain name for the purposes of Policy ¶ 4(c)(ii). See La Quinta Worldwide, LLC v. La Quinta WorldWide, FA1505001621299 (Forum July 11, 2015) (holding that the respondent was not commonly known by the <laquintaworldwide.com> domain name even though “La Quinta WorldWide” was listed as registrant of the disputed domain name, because the respondent had failed to provide any additional evidence to indicate that it was truly commonly known by the disputed domain name).
Furthermore, Respondent apparently planned to impersonate Complainant in order to help facilitate an email phishing scheme. Complainant shows that Respondent set up the <ebayvero.com> domain name to be used for email addresses. If a recipient doubted the emails’ authenticity and browsed to the domain name address they would be presented with an illegal copy of Complainant’s legitimate website which would make it appear that the domain name, and thus the email, was genuine. Respondent’s use of the at-issue domain name to pass itself off as Complainant in furtherance of a phishing scheme is not indicative of rights or legitimate interests per Policy ¶¶ 4(c)(i) or (iii). See Abbvie, Inc. v. James Bulow, FA 1701075 (Forum Nov. 30, 2016) (“Respondent uses the at-issue domain name to pose as Complainant’s CEO by means of email addresses at the confusingly similar domain name in an attempt to determine Complainant’s ability to process a transfer. Using the domain name in this manner is neither a bona fide offering of goods and services under Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii)”).
Given the forgoing, Complainant satisfies its initial burden and conclusively demonstrates Respondent’s lack of rights and lack of interests in respect of the at-issue domain name pursuant to Policy ¶ 4(a)(ii).
The at-issue domain name was registered and used in bad faith. As discussed below, Policy ¶ 4(b) specific bad faith circumstances as well as other circumstances lead the Panel to conclude that Respondent acted in bad faith regarding the <ebayvero.com> domain name pursuant to paragraph 4(a)(iii) of the Policy.
First as mentioned above regarding rights and legitimate interests, Respondent registered and uses the <ebayvero.com> domain name to facilitate passing itself off as Complainant. Respondent pointed its confusingly similar at-issue domain name to Complainant’s actual website thereby making it appear that the domain name was sponsored by or affiliated with Complainant when it was not. By making it look like the <ebayvero.com> domain name was Complainant’s, Respondent could deceive recipients of bogus email originating from the <ebayvero.com> domain name into believing it was from Complainant. Respondent’s use of the domain name to further a plan to pass itself off as Complainant demonstrates Respondent’s bad faith under Policy ¶ 4(b)(iv). See Monsanto Co. v. Decepticons, FA0101536 (Forum Dec. 18, 2001) (finding that the Respondent’s use of <monsantos.com> to misrepresent itself as the complainant supported a finding of bad faith)).
Further and as alluded to above, Respondent appears intent on using duplicitous email from the at-issue domain name to extract funds from third parties or otherwise fraudulently manipulate such third parties who, because of Respondent’s charade, might believe they were dealing with Complainant when they were not. Respondent’s overt acts in preparation to perpetrate a phishing scheme demonstrate bad faith under Policy ¶¶ 4(b)(iii) and (iv). See Qatalyst Partners LP v. Devimore, FA 1393436 (Forum July 13, 2011) (finding that using the disputed domain name as an e-mail address to pass itself off as the complainant in a phishing scheme is evidence of bad faith registration and use); see also Abbvie, Inc. v. James Bulow, FA 1701075 (Forum Nov. 30, 2016) (“Respondent uses the <abbuie.com> domain name to impersonate Complainant’s CEO. Such use is undeniably disruptive to Complainant’s business and demonstrates bad faith pursuant to Policy ¶ 4(b)(iii), and/or Policy ¶ 4(b)(iv)”).
Finally, Respondent registered the <ebayvero.com> domain name knowing that Complainant had trademark rights in the EBAY and VERO mark. Respondent’s prior knowledge of the EBAY and VERO trademark is evident from the notoriety of the EBAY and VERO mark and from Respondent’s planned use of the at-issue domain name to pass itself off as Complainant. It is thus clear that Respondent intentionally registered the at-issue domain name to improperly exploit its trademark value, rather than for some benign reason. Respondent’s prior knowledge of Complainant's trademark further indicates that Respondent registered and used the <ebayvero.com> domain name in bad faith pursuant to Policy ¶ 4(a)(iii). See Minicards Vennootschap Onder FIrma Amsterdam v. Moscow Studios, FA 1031703 (Forum Sept. 5, 2007) (holding that respondent registered a domain name in bad faith under Policy ¶ 4(a)(iii) after concluding that respondent had "actual knowledge of Complainant's mark when registering the disputed domain name").
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <ebayvero.com> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: April 18, 2019
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