Arlo Technologies, Inc. v. nikhil kumar
Claim Number: FA2011001919946
Complainant is Arlo Technologies, Inc. (“Complainant”), represented by Erica N. Goven, California, USA. Respondent is nikhil kumar (“Respondent”), Illinois, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <arlocamera-setup.com>, registered with Launchpad.com 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.
Petter Rindforth as Panelist.
Complainant submitted a Complaint to the Forum electronically on November 9, 2020; the Forum received payment on November 9, 2020.
On November 9, 2020, Launchpad.com Inc. confirmed by e-mail to the Forum that the <arlocamera-setup.com> domain name is registered with Launchpad.com Inc. and that Respondent is the current registrant of the name. Launchpad.com Inc. has verified that Respondent is bound by the Launchpad.com 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 November 10, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 24, 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@arlocamera-setup.com. Also on November 10, 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.
On December 1, 2020, the Respondent requested a 20 calendar day extension of time to file a Response. On December 2, 2020, the Forum granted the Respondent an extension until December 24, 2020 to submit the response.
Having received no response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.
On December 29, 2020, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Petter Rindforth 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
The Complainant is a leading manufacturer of smart connected devices. Complainant has rights in the ARLO trademark through its registration of the trademark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 4,906,065 registered Feb. 23, 2016). Respondent’s <arlocamera-setup.com> domain name is identical or confusingly similar because it wholly incorporates Complainant’s ARLO trademark and merely adds the terms “camera,” “-setup”, and the “.com” generic top-level domain (“gTLD”)
Respondent has no legitimate interests in the <arlocamera-setup.com> domain name. Respondent is not commonly known by the disputed domain name and Complainant has not authorized or licensed Respondent any rights in the ARLO trademark. Additionally, Respondent does not use the disputed domain name for any bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, the Respondent passes themselves off as the Complainant for commercial gain.
Respondent registered and uses the <arlocamera-setup.com> domain name in bad faith. Respondent registered the disputed domain name in order to disrupt Complainant’s business and divert customers for commercial gain. Finally, Respondent registered the disputed domain name with actual knowledge of Complainant’s rights in the ARLO trademark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Complainant is the owner of the following U.S. trademark registration:
No. 4,906,065 ARLO (word), registered February 23, 2016 for goods and services in intl classes 9 and 42.
The disputed domain name was registered on April 12, 2019.
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 Complainant asserts rights in the ARLO trademark based upon the registration with the USPTO (e.g., Reg. No. 4,906,065 registered Feb. 23, 2016). Registration of a trademark with the USPTO is a valid showing of rights. See DIRECTV, LLC v. The Pearline Group, FA 1818749 (Forum Dec. 30, 2018) (“Complainant’s ownership of a USPTO registration for DIRECTV demonstrate its rights in such mark for the purposes of Policy ¶ 4(a)(i).”). Since Complainant provides evidence of registration of the ARLO trademark with the USPTO, the Panel find that the Complainant has rights in the trademark under Policy 4(a)(i).
Complinant argues Resonpdent’s <arlocamera-setup.com> domain name is identical or confusingly similar to Complainant’s ARLO trademark as it contains the trademark in its entirety and merely adds the term “camera,” “-setup,” and the “.com” gTLD. The addition of a generic or descriptive phrase and gTLD fails to sufficiently distinguish a disputed domain name from a mark per Policy ¶ 4(a)(i). See Microsoft Corporation v. Thong Tran Thanh, FA 1653187 (Forum Jan. 21, 2016) (determining that confusing similarity exists where [a disputed domain name] contains Complainant’s entire mark and differs only by the addition of a generic or descriptive phrase and top-level domain, the differences between the domain name and its contained trademark are insufficient to differentiate one from the other for the purposes of the Policy). In this case, the Panel notes that the added generic terms are in fact describing the services provided by the Complainant, thereby – if considering any effect – rather increasing the similarity than the opposite. Therefore, the Panel indeed find that the disputed domain name is confusingly similar to Complainant’s trademark per Policy ¶ 4(a)(i).
Once the Complainant makes a prima facie case in support of its allegations in respect of the second element of the Policy, the burden shifts to the Respondent to show that it does have rights or legitimate interests pursuant to Policy ¶ 4(a)(ii). 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”).
The Complainant contends that Respondent lacks rights or legitimate interests in the <arlocamera-setup.com> domain name since Respondent is not commonly known by the disputed domain name and Complainant has not authorized or licensed to Respondent any rights in the ARLO trademark. WHOIS information may be used to determine whether a respondent is commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Amazon Technologies, Inc. v. LY Ta, FA 1789106 (Forum June 21, 2018) (concluding a respondent has no rights or legitimate interests in a disputed domain name where the complainant asserted it did not authorize the respondent to use the mark, and the relevant WHOIS information indicated the respondent is not commonly known by the domain name). Additionally, lack of authorization to use a complainant’s trademark may indicate that the respondent is not commonly known by the disputed domain name. See Emerson Electric Co. v. golden humble / golden globals, FA 1787128 (Forum June 11, 2018) (“lack of evidence in the record to indicate a respondent is authorized to use [the] complainant’s mark may support a finding that [the] respondent does not have rights or legitimate interests in the disputed domain name per Policy ¶ 4(c)(ii)”). The WHOIS information for the disputed domain name lists the registrant as “nikhil kumar,” and there is no other evidence to suggest that Respondent was authorized to use the ARLO trademark. Therefore, the Panel find that Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii).
Complainant argues that Respondent fails to use the disputed domain name in connection with a bona fide offering of goods or services or legitimate noncommercial or fair use as the Respondent uses <arlocamera-setup.com> to pass themselves off as Complainant and offer competing services. Where the respondent uses a domain to pass themselves off as a complainant and offer competing services, previous panels have found that the respondent fails to make a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii). See Nokia Corp. v. Eagle, FA 1125685 (Forum Feb. 7, 2008) (finding the respondent’s use of the disputed domain name to pass itself off as the complainant in order to advertise and sell unauthorized products of the complainant was not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use of the disputed domain name pursuant to Policy ¶ 4(c)(iii)). Here, Complainant provides screenshots of Respondent’s webpage which clearly displays numerous pictures of Complainant’s products and includes a troubleshooting page with fraudulent contact information. Therefore, the Panel find that Respondent fails to use the disputed domain name for a bona fide offering of goods or services or legitimate noncommercial or fair use under Policy ¶ 4(c)(i) or (iii).
The Complainant argues that the Respondent registered and uses the <arlocamera-setup.com> domain name in bad faith because Respondent disrupts Complainant’s business and attempts to attract Internet users to its competing website for commercial gain. Use of a disputed domain name to pass off as Complainant and sell Complainant’s goods and services can be evidence of bad faith disruption of a complainant’s business under Policy ¶ 4(b)(iii) and an attempt to attract users for commercial gain under Policy ¶ 4(b)(iv). See Wall v. Silva, FA 105899 (Forum Apr. 29, 2002) (finding that despite respondent’s claim that it used the <josephinewall.com> domain name, which was identical to complainant’s JOSEPHINE WALL trademark, to help complainant become popular in the United States, the Panel found that the respondent’s use of the domain name to sell the complainant’s artwork in the United States constituted disruption pursuant to Policy ¶ 4(b)(iii)); see also Capital One Fin. Corp. & Capital One Bank v. Howel, FA 289304 (Forum Aug. 11, 2004) (“The <capitalonebank.biz> domain name is confusingly similar to Complainant’s mark, it is being used to redirect Internet users to a website that imitates Complainant’s credit application website, and it is being used to fraudulently [sic] acquire personal information from Complainant’s clients. Respondent’s use of the domain name supports findings of bad faith registration and use pursuant to Policy ¶ 4(a)(iii).”) As previously noted, the Complainant offers evidence of Respondent passing themselves off as Complainant by purporting to offer Complainant’s products as well as support services. Therefore, the Panel agree and find that Respondent registered and used the disputed domain name in bad faith per Policy ¶ 4(b)(iii) or (iv).
Finally, Complainant argues that Respondent had knowledge of Complainant’s rights in the ARLO trademark at the time of registering the <arlocamera-setup.com> domain name. The Panel disregard arguments of bad faith based on constructive notice as UDRP case precedent declines to find bad faith as a result of constructive knowledge. See Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum Feb. 6, 2014) (“The Panel notes that although the UDRP does not recognize ‘constructive notice’ as sufficient grounds for finding Policy ¶ 4(a)(iii) bad faith, the Panel here finds actual knowledge through the name used for the domain and the use made of it.”). The Panel instead choose to determine whether Respondent had actual knowledge of Complainant's rights in the trademark prior to registering the disputed domain name as actual knowledge can adequately demonstrate bad faith under Policy ¶ 4(a)(iii). See AutoZone Parts, Inc. v. Ken Belden, FA 1815011 (Forum Dec. 24, 2018) (“Complainant contends that Respondent’s knowledge can be presumed in light of the substantial fame and notoriety of the AUTOZONE mark, as well as the fact that Complainant is the largest retailer in the field. The Panel here finds that Respondent did have actual knowledge of Complainant’s mark, demonstrating bad faith registration and use under Policy ¶ 4(a)(iii).”) see also iFinex Inc. v. xu shuaiwei, FA 1760249 (Forum Jan. 1, 2018) (“Respondent’s prior knowledge is evident from the notoriety of Complainant’s BITFINEX trademark as well as from Respondent’s use of its trademark laden domain name to direct internet traffic to a website which is a direct competitor of Complainant”). To support this assertion, Complainant points to its trademark registrations as well as its commercial presence and reputation. As such, the Panel find it clear and obvious that Respondent had actual knowledge of Complainant’s right in its trademark, which support a finding of bad faith under 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 <arlocamera-setup.com> domain name be TRANSFERRED from Respondent to Complainant.
Petter Rindforth, Panelist
Dated: December 30, 2020
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