T-Mobile USA, Inc. dba MetroPCS v. Eric Burnett
Claim Number: FA1908001856386
Complainant is T-Mobile USA, Inc. dba MetroPCS (“Complainant”), represented by Molly Buck Richard of Richard Law Group, Inc., Texas, USA. Respondent is Eric Burnett (“Respondent”), Missouri, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <metropcsautowraps.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.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on August 8, 2019; the Forum received payment on August 8, 2019.
On August 9, 2019, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <metropcsautowraps.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 August 12, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 3, 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@metropcsautowraps.com. Also on August 12, 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 September 5, 2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Richard Hill 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 states that it is the third largest wireless services provider in the United States, serving approximately 79.7 million customers under the brands T-Mobile®, Metro® by T-Mobile, and MetroPCS. As of 2017, Complainant served its wireless subscribers through approximately 20,000 points of distribution, including approximately 15,000 T-Mobile and MetroPCS branded locations. Complainant has rights in the METROPCS mark based upon its registration of the mark in the United States in 2004.
Complainant alleges that the disputed domain name is confusingly similar to its METROPCS mark, as the domain name incorporates the mark in its entirety, along with the descriptive term “auto wraps,” and a “.com” generic top-level domain (“gTLD”). Complainant cites UDRP precedents to support its position.
According to Complainant, Respondent has no rights or legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name, nor has Complainant authorized or licensed Respondent to use the METROPCS mark in any manner. Respondent’s use of the disputed domain name does not amount to a bona fide offering of goods or services or a legitimate noncommercial or fair use. The domain name is being used in connection with a site that duplicates many of Complainant’s trademarks (Metro® by T-Mobile), contains a copyright notice that says © 2019 Metro by T-Mobile and displays photos bearing Complainant’s trademarks and images. The home page depicts an image of a MetroPCS vehicle directly lifted from a third party site. The resolving website advertises a purported ad campaign involving auto wraps with the MetroPCS mark and images on personal vehicles where the owner of the automobile will supposedly be paid $800 twice a month for wrapping their vehicle. Complainant does not have an auto wrap program. There have been recent similar scams involving a supposed auto wrap campaign for MetroPCS. Complainant cites UDRP precedents to support its position.
Further, says Complainant, Respondent registered and is using the disputed domain name in bad faith. Respondent attempts to disrupt Complainant’s business and attract, for commercial gain, users to the disputed domain name by passing off as Complainant and phish for users’ personal information. Finally, Respondent had actual knowledge of Complainant’s rights in the METROPCS mark prior to registering the disputed domain name. Complainant cites UDRP precedents to support its position.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns the mark METROPCS and uses it to market wireless services.
Complainant’s rights in its mark date back to 2004.
The disputed domain name was registered in 2019.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
Respondent uses the disputed domain name to pass off as Complainant to attempt to acquire users’ personal information as part of a fraudulent scheme.
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 disputed domain name incorporates Complainant’s mark in its entirety, merely adding the descriptive term “auto wraps” and a “.com” gTLD. Such changes are not sufficient to distinguish a domain name from an incorporated mark in a Policy ¶ 4(a)(i) analysis. See Wiluna Holdings, LLC v. Edna Sherman, FA 1652781 (Forum Jan. 22, 2016) (finding the addition of a generic term and gTLD is insufficient in distinguishing a disputed domain name from a mark under Policy ¶ 4(a)(i)). The Panel therefore finds that the <metropcsautowraps.com> domain name is confusingly similar to Complainant’s METROPCS mark per Policy ¶ 4(a)(i).
Complainant has not authorized Respondent to use its METROPCS mark in any way. Respondent is not commonly known by the disputed domain name: where a response is lacking, WHOIS information can support a finding that the respondent is not commonly known by a disputed domain name. See Philip Morris USA Inc. v. Usama Ramzan, FA 1737750 (Forum July 26, 2017) (“We begin by noting that Complainant contends, and Respondent does not deny, that Respondent has not been commonly known by the <marlborocoupon.us> domain name, and that Complainant has not authorized Respondent to use the MARLBORO mark in any way. Moreover, the pertinent WHOIS information identifies the registrant of the domain name only as “Usama Ramzan,” which does not resemble the domain name. On this record, we conclude that Respondent has not been commonly known by the challenged domain name so as to have acquired rights to or legitimate interests in it within the purview of Policy ¶ 4(c)(ii).”). Here, the WHOIS information of record identifies the registrant of the disputed domain name as “Eric Burnett.” The Panel therefore finds under Policy ¶ 4(c)(ii) that Respondent has not been commonly known by the disputed domain name.
Respondent uses the disputed domain name to pass off as Complainant in order to acquire users’ personal information. Specifically, Complainant uses the disputed domain name to offer a fraudulent “auto wrap” scheme in connection with the METROPCS mark; Respondent acquires users’ personal information as part of the fraudulent scheme. Use of a disputed domain name to pass off as a complainant in furtherance of phishing is not indicative of rights or legitimate interests under a Policy ¶¶ 4(c)(i) or (iii) analysis. See T-Mobile, Inc. d/b/a MetroPCS v Diana Romero/Maurice Mujais/Don Thompson/ Jan L Baptista, FA 1801511 (Forum Aug. 24, 2018) (finding a similar fraudulent scheme to constitute phishing which was not a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii)); see also DaVita Inc. v. Cynthia Rochelo, FA 1738034 (Forum July 20, 2017) (”Passing off in furtherance of a phishing scheme is not considered a bona fide offering of goods or services or legitimate noncommercial or fair use.”). Therefore, the Panel finds that Respondent fails to use the disputed domain name for a bona fide offering of goods or services or for a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii). Moreover, the Panel finds that Respondent does not have rights or legitimate interests in the disputed domain name.
Respondent (who did not reply to Complainant’s contentions) has not presented any plausible explanation for its use of Complainant’s mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain name.
Indeed, as already noted, Respondent uses the disputed domain name to pass off as Complainant in order to acquire users’ personal information as part of a fraudulent scheme. Use of a domain name to create a false impression of affiliation with a complainant, presumably for commercial gain, may be behavior indicative of bad faith registration and use per Policy ¶¶ 4(b)(iii) and (iv). See T-Mobile, Inc. d/b/a MetroPCS v Diana Romero/Maurice Mujais/Don Thompson/ Jan L Baptista, FA 1801511 (Forum Aug. 24, 2018) (finding that the use of the domain names to pass off as Complainant is undeniably disruptive to Complainant’s business and demonstrates bad faith pursuant to Policy ¶ 4(b)(iii) or Policy ¶ 4(b)(iv)); see also National Oilwell Varco, L.P. v. Craig Wood/NOV, FA 1575951 (Forum Sept. 22, 2014) (“We are persuaded by the evidence that Respondent’s use of the <nov-inc.com> domain name to commit a commercial fraud while purporting to act in the name of the Complainant, all as alleged in the Complaint, demonstrates bad faith in the registration and use of the domain name”); see also Wells Fargo & Co. v. Maniac State, FA 608239 (Forum Jan. 19, 2006) (finding bad faith registration and use where the respondent was using the <wellsbankupdate.com> domain name in order to fraudulently acquire the personal and financial information of the complainant’s customers). The Panel therefore finds that Respondent registered and used the domain name in bad faith per Policy ¶¶ 4(b)(iii) and/or (iv).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <metropcsautowraps.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: September 5, 2019
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