Vroom, Inc. v. Zach Isaak / Vroom Car Vacuums
Claim Number: FA2012001925285
Complainant is Vroom, Inc. (“Complainant”), represented by David A. W. Wong of Barnes & Thornburg LLP, New York, USA. Respondent is Zach Isaak / Vroom Car Vacuums (“Respondent”), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <vroomcaraccessories.com>, registered with Tucows Domains 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.
Debrett G. Lyons as Panelist.
Complainant submitted a Complaint to the Forum electronically on December 16, 2020; the Forum received payment on December 16, 2020.
On December 16, 2020, Tucows Domains Inc. confirmed by e-mail to the Forum that the <vroomcaraccessories.com> domain name is registered with Tucows Domains Inc. and that Respondent is the current registrant of the name. Tucows Domains Inc. has verified that Respondent is bound by the Tucows Domains 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 December 21, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 11, 2021 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@vroomcaraccessories.com. Also on December 21, 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 January 18, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Debrett G. Lyons 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.[i]
A. Complainant
Complainant asserts trademark rights in VROOM. Complainant holds a national registration for that trademark. Complainant submits that the domain name is confusingly similar to its trademark.
Complainant alleges that Respondent has no rights or legitimate interests in the disputed domain name.
Complainant alleges that Respondent registered the disputed domain name in bad faith having targeted Complainant’s business.
B. Respondent
Respondent failed to submit a formal Response in this proceeding. However, it wrote to the Forum upon receipt of a copy of the Complaint stating:
“I hope there are no issues with this, and I don't want to have to deal with it. Please give the domain to them, and say I apologize for any inconvenience this may have caused”
and later,
“I don't own the domain anymore but we have deleted all of our videos and our website that used the name Vroom. I haven't heard anything from them, so not sure how I can negotiate. But, we didn't mean to harm anyone or any company. We were just trying to start up an online store for our car vacuum. It's not even active anymore.”
The factual findings pertinent to the decision in this case are that:
1. Complainant is in the business of buying and selling used motor vehicles online by reference to the trading name VROOM;
2. Complainant owns a national trademark registration for VROOM;
3. Respondent registered the disputed domain name on August 17, 2020, a time postdating Complainant’s trademark registration;
4. the disputed domain name resolves to a rudimentary holding page;
5. there is no relationship between the parties and Complainant has not authorized Respondent to use its trademark or register any domain name incorporating that trademark; and
6. Complainant sent a pre-Complaint letter of demand to an address associated with Respondent which went unanswered.
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.” The Panel finds that in this case a preliminary procedural matter is dispositive of the matter.
PROCEDURAL ISSUE: CONSENT TO TRANSFER
As stated, there is no formal Response but Respondent consents to transfer of the disputed domain name. Respondent has not transferred the name but nor can it at this point since in consequence of these proceedings the Registrar has, as required, placed a hold on Respondent’s account.
The Panel has an option in these circumstances to either immediately order transfer of the domain name or apply the Policy and make a finding based on the evidence before it.
It has been observed, rightly, that transfer by consent provides a loophole of a kind for those who habitually target the trademarks of others (see, for example, Graebel Van Lines, Inc. v. Tex. Int’l Prop. Assocs., FA 1195954 (Forum July 17, 2008), where in spite of an offer to transfer the at-issue domain name the panel applied the Policy since “agreement-to-transfer” was a way cybersquatters abused domain names and avoided a public decision against them). Nevertheless, the Panel finds in this case that, on balance, it seems unlikely that Respondent set out to take advantage of Complainant. The onomatopoeic term, “zroom”, is commonplace in relation to motor vehicles and there is nothing to contradict Respondent’s assertion that it intended to develop the resolving website to promote car vacuum cleaners (goods which on one view might also be alluded to by the term, “vroom”). There is no indication of intended use in connection with Complainant’s core business services.
All that might be said against Respondent is that it used a privacy service to shield its name as owner of the domain name (not itself compelling evidence of bad faith) and did not respond to Complainant’s letter of demand (which may have been through lack of ongoing interest in the domain name, as claimed, and inattention to messages associated with it). Those facts are inconclusive as to Respondent’s intentions.
It might be noted that whilst Complainant has not agreed to the request for immediate transfer, the Panel determines this to be a case where the absence of that request is of little weight. The Panel finds that the domain name should be transferred to Complainant without the need to analyze the elements of paragraph 4(a) of the Policy (see, for example, Disney Enters., Inc. v. Morales, FA 475191 (Forum June 24, 2005) (“[U]nder such circumstances, where Respondent has agreed to comply with Complainant’s request, the Panel felt it to be expedient and judicial to forego the traditional UDRP analysis and order the transfer of the domain names.”).
It is ORDERED that the <vroomcaraccessories.com> domain name be TRANSFERRED from Respondent to Complainant.
Debrett G. Lyons, Panelist
Dated: January 25, 2021
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