Frontier Technology LLC, dba MicroAge v. W C
Claim Number: FA2009001913830
Complainant is Frontier Technology LLC, dba MicroAge (“Complainant”), represented by Howard I. Sobelman of SNELL & WILMER L.L.P, Arizona, USA. Respondent is W C (“Respondent”), Canada.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <microagefv.com>, registered with FastDomain 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.
Ho Hyun Nahm, Esq. as Panelist.
Complainant submitted a Complaint to the Forum electronically on September 25, 2020; the Forum received payment on September 25, 2020.
On September 28, 2020, FastDomain Inc. confirmed by e-mail to the Forum that the <microagefv.com> domain name is registered with FastDomain Inc. and that Respondent is the current registrant of the name. FastDomain Inc. has verified that Respondent is bound by the FastDomain 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 October 2, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 22, 2020 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@microagefv.com. Also on October 2, 2020, 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 October 27, 2020, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Ho Hyun Nahm, Esq. 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
i) Complainant, Frontier Technology LLC, owns and operates a corporate information technology company. Complainant has rights in the MICROAGE mark through its registration with the United States Patent and Trademark Office (“USPTO”) (e.g. Reg. 1,581,182, registered Feb. 6, 1990). The disputed domain name is confusingly similar to Complainant’s MICROAGE mark as it contains the entire mark, as well as the “.com” generic top-level domain (“gTLD”).
ii) Respondent lacks rights and legitimate interests in the disputed domain name as it is not commonly known by the disputed domain name and has not been licensed or authorized to use the MICROAGE mark. Additionally, Respondent does not use the disputed domain name for any bona fide offering of goods or services, nor for any legitimate noncommercial or fair use. Instead, Respondent advertises similar services to Complainant at the disputed domain.
iii) Respondent registered and uses the disputed domain name in bad faith. Respondent capitalizes on Complainant’s goodwill to draw users to its webpage for commercial gain. Additionally, Respondent registered the disputed domain name with actual knowledge of Complainant’s rights in the MICROAGE mark.
B. Respondent
Respondent did not submit a response to this proceeding.
1. The disputed domain name was registered on December 14, 2006.
2. Complainant has rights in the MICROAGE mark through its registration with the United States Patent and Trademark Office (“USPTO”) (e.g. Reg. 1,581,182, registered Feb. 6, 1990).
3. The webpage resolving at the disputed domain displays Complainant’s marks and advertises services similar to those offered by Complainant.
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”).
Complainant asserts rights in the MICROAGE mark through its registration with the USPTO. Registration of a mark with a trademark agency such as the USPTO is generally sufficient to demonstrate rights in a mark under Policy ¶ 4(a)(i). See Target Brands, Inc. v. jennifer beyer, FA 1738027 (Forum July 31, 2017) ("Complainant has rights in its TARGET service mark for purposes of Policy ¶ 4(a)(i) by virtue of its registration of the mark with a national trademark authority, the United States Patent and Trademark Office (“USPTO”).”). Complainant provides evidence of registration with the USPTO (e.g. Reg. 1,581,182, registered Feb. 6, 1990). Therefore, the Panel finds Complainant has rights in the mark under Policy ¶ 4(a)(i).
Complainant argues that the disputed domain name is confusingly similar to Complainant’s MICROAGE mark as it contains the entire mark, as well as the “.com” gTLD. The Panel notes that the disputed domain name also contains the letters “fv.” Addition of a generic and/or descriptive term and a gTLD does not necessarily negate confusing similarity between a domain name and a mark under Policy ¶ 4(a)(i). See MTD Products Inc. v. J Randall Shank, FA 1783050 (Forum June 27, 2018) (“The disputed domain name is confusingly similar to Complainant’s mark as it wholly incorporates the CUB CADET mark before appending the generic terms ‘genuine’ and ‘parts’ as well as the ‘.com’ gTLD.”). Therefore, the Panel finds the disputed domain name is identical or confusingly similar to Complainant’s mark under Policy ¶ 4(a)(i).
Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), then the burden shifts to Respondent to show it does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“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”).
Complainant argues that Respondent lacks rights and legitimate interests in the disputed domain name as it is not commonly known by the disputed domain name and has not been licensed or authorized to use the MICROAGE mark. When no response is submitted, relevant WHOIS information may demonstrate that a Respondent is not commonly known by a disputed domain name under Policy ¶ 4(c)(ii). See Instron Corp. v. Kaner, FA 768859 (Forum Sept. 21, 2006) (finding that the respondent was not commonly known by the disputed domain names because the WHOIS information listed “Andrew Kaner c/o Electromatic a/k/a Electromatic Equip't” as the registrant and there was no other evidence in the record to suggest that the respondent was commonly known by the domain names in dispute). Additionally, lack of authorization to use a mark further evidences that a respondent lacks rights and legitimate interests in the mark. See Navistar International Corporation v. N Rahmany, FA1505001620789 (Forum June 8, 2015) (finding that the respondent was not commonly known by the disputed domain name where the complainant had never authorized the respondent to incorporate its NAVISTAR mark in any domain name registration). Here, the WHOIS information of record identifies the registrant as “W.C.,” and nothing in the record rebuts Complainant’s assertion that it never authorized Respondent to use the MICROAGE mark. Therefore, the Panel finds Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).
Additionally, Complainant claims that Respondent does not use the disputed domain name for any bona fide offering of goods or services or legitimate noncommercial or fair use and instead advertises similar services to Complainant at the disputed domain. Use of a disputed domain name to redirect Internet traffic to a respondent’s website is generally not considered a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) and (iii). See Summit Group, LLC v. LSO, Ltd., FA 758981 (Forum Sept. 14, 2006) (finding that the respondent’s use of the complainant’s LIFESTYLE LOUNGE mark to redirect Internet users to respondent’s own website for commercial gain does not constitute either a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii)). Complainant provides a screenshot of the webpage resolving at the disputed domain and notes that the webpage advertises services similar to those offered by Complainant. Thus, the Panel finds that Respondent does not use the disputed domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii).
The Panel finds that Complainant has made out a prima facie case that arises from the considerations above. All of these matters go to make out the prima facie case against Respondent. As Respondent has not filed a Response or attempted by any other means to rebut the prima facie case against it, the Panel finds that Respondent has no rights or legitimate interests in the disputed domain name.
Complainant argues that Respondent registered and uses the disputed domain name in bad faith because Respondent capitalizes on Complainant’s goodwill to draw users to its webpage for commercial gain. Suggesting an affiliation with a complainant for commercial benefit is evidence of bad faith under Policy ¶ 4(b)(iv). See DatingDirect.com Ltd. v. Aston, FA 593977 (Forum Dec. 28, 2005) (“the Panel finds the respondent is appropriating the complainant’s mark in a confusingly similar domain name for commercial gain, which is evidence of bad faith registration and use pursuant to Policy ¶4(b)(iv).”); see also Xylem Inc. and Xylem IP Holdings LLC v. YinSi BaoHu YiKaiQi, FA1504001612750 (Forum May 13, 2015) (“The Panel agrees that Respondent’s use of the website to display products similar to Complainant’s, imputes intent to attract Internet users for commercial gain, and finds bad faith per Policy ¶ 4(b)(iv).”). Complainant provides a screenshot of the webpage resolving at the disputed domain and notes that the webpage includes Complainant’s marks and advertises services similar to those offered by Complainant. The Panel therefore finds that Respondent registered and uses the disputed domain name in bad faith under Policy ¶ 4(b)(iv).
Additionally, Complainant contends that Respondent registered the disputed domain name with actual knowledge of Complainant’s rights in the MICROAGE mark. Actual knowledge of a complainant’s rights in a mark may evidence bad faith under Policy ¶ 4(a)(iii) and may be shown by the use made of the disputed domain name. See Am. Online, Inc. v. Miles, FA 105890 (Forum May 31, 2002) (“Respondent is using the domain name at issue to resolve to a website at which Complainant’s trademarks and logos are prominently displayed. Respondent has done this with full knowledge of Complainant’s business and trademarks. The Panel finds that this conduct is that which is prohibited by Paragraph 4(b)(iv) of the Policy.”); see also University of Rochester v. Park HyungJin, FA1410001587458 (Forum Dec. 9, 2014) (“. . .the Panel infers Respondent’s actual knowledge here based on Respondent’s complete use of the PERIFACTS mark in the <perifacts.com> domain name to promote links related to the field of obstetrics, where Complainant’s mark is used.”). Complainant argues that content associated with the disputed domain name shows that Respondent had actual knowledge of Complainant’s rights in the mark. The Panel infers, due to the manner of use of the disputed domain name that Respondent had actual knowledge of Complainant’s rights in the mark at the time of registration of the disputed domain name, and finds bad faith registration and use pursuant to Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <microagefv.com> domain name be TRANSFERRED from Respondent to Complainant.
Ho Hyun Nahm, Esq., Panelist
Dated: November 2, 2020
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