Arlo Technologies, Inc. v. Paybis Exchange
Claim Number: FA2103001937009
Complainant is Arlo Technologies, Inc. (“Complainant”), represented by Marcia K. Kerrigan, Nebraska, USA. Respondent is Paybis Exchange (“Respondent”), India.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <arlocalcenter.services>, 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.
Paul M. DeCicco, as Panelist.
Complainant submitted a Complaint to the Forum electronically on March 17, 2021; the Forum received payment on March 17, 2021.
On March 18, 2021, NameCheap, Inc. confirmed by e-mail to the Forum that the <arlocalcenter.services> 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 March 22, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 12, 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@arlocalcenter.services. Also on March 22, 2021, 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 April 16, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Paul M. DeCicco 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 contends as follows:
Complainant has offered goods under the ARLO trademark since at least October 2014.
Complainant has rights in the ARLO mark through Complainant’s registration of the mark with the United States Patent and Trademark Office (“USPTO”).
Respondent’s <arlocalcenter.services> domain name is confusingly similar to Complainant’s ARLO mark as it includes the ARLO mark in its entirety, merely adding the word “CAL” and the generic or descriptive word “CENTER,” which appears to be a play on the words “Call Center,” and the “.services” top-level domain designation.
Respondent lacks rights or legitimate interests in the <arlocalcenter.services> domain name. Respondent is not commonly known by the at-issue domain name nor has Respondent been authorized by Complainant to use the ARLO mark. Respondent has not used the domain name in connection with a bona fide offering of goods or services as Respondent passes off as Complainant.
Respondent registered and uses the <arlocalcenter.services> domain name in bad faith. Respondent uses the disputed domain name to pass off as and compete with Complainant by offering services competing with those offered by Complainant.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has rights in the ARLO trademark.
Respondent is not affiliated with Complainant and had not been authorized to use Complainant’s trademark in any capacity.
Respondent registered the at‑issue domain name after Complainant acquired rights in the ARLO trademark.
Respondent uses the at-issue domain name to pose as Complainant in furtherance of offering services competing with Complainant’s genuine support services.
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 at-issue domain name is confusingly similar to a trademark in which Complainant has rights.
Complainant’s USPTO registration for its ARLO trademark is sufficient to demonstrate Complainant’s rights in a mark under Policy ¶ 4(a)(i). 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).”).
Respondent’s <arlocalcenter.services> domain name contains Complainant’s ARLO trademark followed by the generic term(s) “cal center” and with all followed by a domain name-necessary top-level domain name, here “.service.” The differences between Respondent’s domain name and Complainant’s trademark are insufficient to distinguish the <arlocalcenter.services> domain name from Complainant’s ARLO mark for the purposes of Policy ¶ 4(a)(i). In fact, the several descriptive terms Respondent included in the domain name are suggestive of the service side of Complainant’s business and thus only add to any confusion. Therefore, the Panel concludes that Respondent’s <arlocalcenter.services> domain name is confusingly similar to Complainant’s ARLO trademark. See Bloomberg Finance L.P. v. Nexperian Holding Limited, FA 1782013 (Forum June 4, 2018) (“Where a relevant trademark is recognizable within a disputed domain name, the addition of other terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) does not prevent a finding of confusing similarity under the first element.”); see also Blue Cross and Blue Shield Association v. Shi Lei aka Shilei, FA 1784643 (Forum June 18, 2018) (“A TLD (whether a gTLD, sTLD or ccTLD) is disregarded under a Policy ¶4(a)(i) analysis because domain name syntax requires TLDs.”).
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. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006). Since Respondent failed to respond, Complainant’s prima facie showing acts conclusively.
Respondent lacks both rights and legitimate interests in respect of the at-issue domain name. Respondent is not authorized to use Complainant’s trademark in any capacity and, as discussed below, there are no Policy ¶ 4(c) circumstances from which the Panel might find that Respondent has rights or interests in respect of the at‑issue 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 at-issue domain name ultimately identifies the domain name’s registrant as “Paybis Exchange” and the record before the Panel contains no evidence tending to prove that Respondent is commonly known by the <arlocalcenter.services> domain name. The Panel therefore concludes that Respondent is not commonly known by the <arlocalcenter.services> domain name for the purposes of Policy ¶ 4(c)(ii). See Braun Corp. v. Loney, FA 699652 (Forum July 7, 2006) (concluding that the respondent was not commonly known by the at-issue domain names where the WHOIS information, as well as all other information in the record, gave no indication that the respondent was commonly known by the domain names, and the complainant had not authorized the respondent to register a domain name containing its registered mark).
Respondent uses the confusingly similar <arlocalcenter.services> domain name to address a website that uses numerous pictures of Complainant’s prominently trademarked products. The website also includes a page specifically for Arlo Security related products, a chat window with a live chat function, and a phone number with the purpose of persuading consumers to utilize <arlocalcenter.services> support offerings for Complainant’s products. Respondent’s use of the confusingly similar domain name in this manner indicates neither a bona fide offering of goods or services under Policy ¶ 4 (c)(i), nor a non-commercial or fair use pursuant to Policy ¶ 4(c)(iii). See Ripple Labs Inc. v. Jessie McKoy / Ripple Reserve Fund, FA 1790949 (Forum July 9, 2018) (finding the respondent did not use the domain name to make a bona fide offering of goods or services per Policy ¶ 4(c)(i) or for a legitimate noncommercial or fair use per Policy ¶ 4(c)(iii) where the website resolving from the disputed domain name featured the complainant’s mark and various photographs related to the complainant’s business).
Given the forgoing, Complainant satisfies its initial burden and conclusively demonstrates Respondent’s lack of rights and lack of interests in respect of the at-issue domain name under Policy ¶ 4(a)(ii).
Respondent’s <arlocalcenter.services> domain name was registered and used in bad faith. As discussed below without limitation, bad faith circumstances are present that require the Panel to conclude that Respondent acted in bad faith pursuant to paragraph 4(a)(iii) of the Policy.
Respondent uses the at-issue domain name to pass itself off as Complainant. Respondent’s confusingly similar domain name addresses a website that capitalizes on its misappropriation of Complainant trade dress to offer services in competition with support services offered by Complainant. Support services are integral to Complainant’s security camera products which involve a user initiated setup process requiring a unique account to enable camera access and functionality. Indeed, when Complainant asked Respondent via Respondent’s <arlocalcenter.services> online chat facility whether the website is affiliated with or authorized by Complainant, Respondent answered that “it is” when in fact there is no such affiliation or authorization. Respondent’s use of the confusingly similar at-issue domain name to pass itself off as Complainant and offer services similar to those offered by Complainant is evidence of bad faith disruption of Complainant’s business under Policy ¶ 4(b)(iii) and evidence of Respondent’s exploitation of the confusion it created to attract internet users for commercial gain under Policy ¶ 4(b)(iv). See Fossil Inc. v. NAS, FA 92525 (Forum Feb. 23, 2000) (finding that the respondent acted in bad faith by registering the <fossilwatch.com> domain name and using it to sell various watch brands where the respondent was not authorized to sell the complainant’s goods); see also Bittrex, Inc. v. Wuxi Yilian LLC, FA 1760517 (Forum Dec. 27, 2017) (finding bad faith per Policy ¶ 4(b)(iv) where “Respondent registered and uses the <lbittrex.com> domain name in bad faith by directing Internet users to a website that mimics Complainant’s own website in order to confuse users into believing that Respondent is Complainant, or is otherwise affiliated or associated with Complainant.”).
Moreover, the Panel finds that Respondent registered its <arlocalcenter.services> domain name while knowing that Complainant had trademark rights in ARLO. Respondent’s prior knowledge is evident from the notoriety of Complainant’s trademark, from the inclusion of suggestive terms in the domain name, and from Respondent’s offering Complainant’s services on Respondent’s <arlocalcenter.services> website. The Panel also finds that Respondent intentionally registered the at-issue domain name to improperly exploit its trademark value, rather than for some benign reason. Respondent’s prior knowledge of Complainant's trademark demonstrates that Respondent registered and used its <arlocalcenter.services> domain name in bad faith pursuant to Policy ¶ 4(a)(iii). See Minicards Vennootschap Onder FIrma Amsterdam v. Moscow Studios, FA 1031703 (Forum Sept. 5, 2007) (holding that respondent registered a domain name in bad faith under Policy ¶ 4(a)(iii) after concluding that respondent had "actual knowledge of Complainant's mark when registering the disputed domain name"); see also Victoria’s Secret Stores Brand Mgmt., Inc. v. Michael Bach, FA 1426668 (Forum Mar. 2, 2012) (“Although Complainant has not submitted evidence indicating actual knowledge by Respondent of its rights in the trademark, the Panel finds that, due to the fame of Complainant’s [VICTORIA’S SECRET] mark, Respondent had actual notice at the time of the domain name registration and therefore registered the domain name in 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 <arlocalcenter.services> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: April 19, 2021
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