Puppies.com, LLC v. Dieudonne Mbeh
Claim Number: FA1909001862904
Complainant is Puppies.com, LLC ("Complainant"), represented by J. Damon Ashcraft of SNELL & WILMER L.L.P., Arizona, USA. Respondent is Dieudonne Mbeh ("Respondent"), Cameroon.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <puppyfindus.com>, registered with NameCheap, Inc..
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.
David E. Sorkin as Panelist.
Complainant submitted a Complaint to the Forum electronically on September 18, 2019; the Forum received payment on September 18, 2019.
On September 19, 2019, NameCheap, Inc. confirmed by email to the Forum that the <puppyfindus.com> domain name is registered with NameCheap, Inc. and that Respondent is the current registrant of the name. NameCheap, Inc. has verified that Respondent is bound by the NameCheap, Inc. 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 September 19, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 9, 2019 by which Respondent could file a Response to the Complaint, via email to all entities and persons listed on Respondent's registration as technical, administrative, and billing contacts, and to postmaster@puppyfindus.com. Also on September 19, 2019, the Written Notice of the Complaint, notifying Respondent of the email 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 October 10, 2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed David E. Sorkin 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 has provided pet selection services and pet information since 2002, using PUPPYFIND.COM as its primary service mark. Complainant states that its website receives hundreds of thousands of visits per month, and matches approximately 10,000 pets with pet owners each year.
Respondent registered the disputed domain name <puppyfindus.com> via a privacy registration service in August 2019. Complainant alleges that the domain name was used to display a screen shot of Complainant's website and solicit Internet users to enter login and password information. The website content was removed after Complainant submitted a complaint alleging copyright infringement. Complainant states that Respondent is not sponsored by or affiliated with it in any way, and that Complainant has never authorized or licensed to Respondent any rights relating to Complainant's PUPPYFIND.COM mark.
Complainant contends on the above grounds that the disputed domain name <puppyfindus.com> is confusingly similar to its PUPPYFIND.COM mark; that Respondent lacks rights or legitimate interests in the disputed domain name; and that the disputed domain name was registered and is being used in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that the disputed domain name is confusingly similar to a mark in which Complainant has rights; that Respondent lacks rights or legitimate interests in respect of the disputed domain name; and that the disputed domain name was registered and is being used in bad faith.
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 Overview of WIPO Panel Views on Selected UDRP Questions, § 4.3 (3d ed. 2017), available at http://www.wipo.int/amc/en/domains/search/overview3.0/; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (dismissing complaint where complainant failed to "produce clear evidence to support its subjective allegations").
The disputed domain name <puppyfindus.com> incorporates Complainant's registered PUPPYFIND.COM trademark, inserting the geographic term "us." This addition does not substantially diminish the similarity between the domain name and Complainant's mark. See, e.g., AOL Inc. v. Dopici Nasrat, FA 1331870 (Forum Aug. 12, 2010) (finding <mapquestus.com> confusingly similar to MAPQUEST.COM); Private Communities Registry, Inc. v. Himalaya Rankings LLC & John Sweeney, FA 1220432 (Forum Oct. 23, 2008) (finding <usprivate-communities.com> confusingly similar to PRIVATECOMMUNITIES.COM). The Panel considers the disputed domain name to be confusingly similar to a mark in which Complainant has rights.
Under the Policy, the Complainant must first make a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain name, and then the burden shifts to the Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Productions, Inc. v. Entertainment Commentaries, FA 741828 (Forum Aug. 18, 2006).
The disputed domain name incorporates Complainant's registered mark without authorization, and its sole apparent use has been to imitate and create confusion with Complainant, presumably for fraudulent purposes.
Complainant has made a prima facie case that Respondent lacks rights and legitimate interests in the domain name, and Respondent has failed to come forward with any evidence of such rights or interests. Accordingly, the Panel finds that Complainant has sustained its burden of proving that Respondent lacks rights or legitimate interests in respect of the disputed domain name.
Finally, Complainant must show that the disputed domain name was registered and is being used in bad faith. Under paragraph 4(b)(iii) of the Policy, bad faith may be shown by evidence that Respondent registered the disputed domain name "primarily for the purpose of disrupting the business of a competitor." Under paragraph 4(b)(iv), bad faith may be shown by evidence that "by using the domain name, [Respondent] intentionally attempted to attract, for commercial gain, Internet users to [Respondent's] web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of [Respondent's] web site or location or of a product or service on [Respondent's] web site or location."
Respondent registered a domain name incorporating Complainant's mark and used it to mimic Complainant's website, presumably for fraudulent purposes. Such conduct is indicative of bad faith registration and use under the Policy. See, e.g., United Parcel Service of America, Inc. v. Jamie Hans, FA 1826973 (Forum Feb. 25, 2019) (finding bad faith based upon use of domain name incorporating trademark to impersonate trademark owner for presumably fraudulent purposes); Wells Fargo & Co. v. Domain Vault / Domain Vault LLC, FA 1765145 (finding bad faith in similar circumstances). The Panel so finds.
Having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <puppyfindus.com> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: October 11, 2019
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