Dealer Inspire Inc. v. Bella Angele
Claim Number: FA2104001943026
Complainant is Dealer Inspire Inc. (“Complainant”), represented by Thad Chaloemtiarana of Pattishall, McAuliffe, Newbury, Hilliard & Geraldson LLP, Illinois, USA. Respondent is Bella Angele (“Respondent”), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <dealerinspire.us>, which is registered with NameCheap, Inc.
The undersigned certifies that he has acted independently and impartially, and, to the best of his knowledge, has no conflict of interests in serving as Panelist in this proceeding.
Terry F. Peppard as Panelist.
Complainant submitted a Complaint to the Forum electronically on April 27, 2021; the Forum received payment on April 27, 2021.
On April 27, 2021, NameCheap, Inc. confirmed by e-mail to the Forum that the <dealerinspire.us> 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 the U.S. Department of Commerce’s usTLD Dispute Resolution Policy (the “Policy”).
On April 28, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 18, 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@dealerinspire.us. Also on April 28, 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 May 24, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Terry F. Peppard as sole Panelist in this proceeding.
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 usTLD 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 usTLD Policy, usTLD 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, operating under the DEALER INSPIRE mark, provides advertising, marketing and web design services for automotive dealers.
Complainant holds a registration for the DEALER INSPIRE service mark, which is on file with the United States Patent and Trademark Office (“USPTO”) as Registry No. 4,643,547 registered November 25, 2014.
Respondent registered the domain name <dealerinspire.us> on April 12, 2021.
The domain name is virtually identical and confusingly similar to Complainant’s DEALER INSPIRE mark.
Respondent has not been commonly known by the domain name.
Complainant has not licensed or otherwise authorized Respondent to use the DEALER INSPIRE mark.
Respondent does not use the domain name for any bona fide offering of goods or services or a legitimate noncommercial or fair use.
Instead, the domain name is used by Respondent to pass itself off as Complainant via e-mail messages derived from the domain name and purporting to be from Complainant in pursuit of a scheme to deceive and defraud Internet users seeking employment with Complainant.
Respondent has no rights to or legitimate interests in the domain name.
Respondent has engaged in a pattern of bad faith registrations of domain names.
Respondent’s use of the domain name disrupts Complainant’s business and diverts customers away from Complainant’s official website for Respondent’s commercial gain.
Respondent registered the domain name with actual knowledge of Complainant’s rights in the DEALER INSPIRE mark.
Respondent both registered and now uses the domain name in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
(1) the domain name registered by Respondent is substantively identical and confusingly similar to a service mark in which Complainant has rights; and
(2) Respondent has no rights to or legitimate interests in respect of the domain name; and
(3) the same domain name was registered and is being used by Respondent 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:
i. the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
ii. Respondent has no rights or legitimate interests in respect of the domain name; and
iii. the domain name has been registered or is being used by Respondent in bad faith.
Given the similarity between the Uniform Domain Name Dispute Resolution Policy (“UDRP”) and the usTLD Policy, the Panel will draw upon panel decisions issued under the UDRP, as applicable, in rendering its decision in this proceeding.
In view of Respondent's failure to submit a response, the Panel will, pursuant to paragraphs 5(f), 14(a) and 15(a) of the Rules, decide this proceeding on the basis of Complainant's undisputed representations, and, pursuant to paragraph 14(b) of the Rules, draw such inferences as it deems appropriate. The Panel is entitled to accept as true all reasonable claims and inferences set out in the Complaint unless the supporting evidence is manifestly contradictory. See, for example, Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Forum July 31, 2000) (finding that a respondent’s failure to respond allows all reasonable inferences of fact in the allegations of a UDRP complaint to be deemed true). But see 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 has rights in the DEALER INSPIRE service mark sufficient for purposes of Policy 4(a)(i) by virtue of its registration of the mark with a national trademark authority, the USPTO. See, for example, DIRECTV, LLC v. The Pearline Group, FA 1818749 (Forum December 30, 2018):
Complainant’s ownership of a USPTO registration for …[its mark]… demonstrate[s] its rights in such mark for the purposes of Policy ¶ 4(a)(i).
Turning to the core question posed by Policy ¶ 4(a)(i), we conclude from a review of the record that Respondent’s <dealerinspire.us> domain name is substantively identical and confusingly similar to Complainant’s DEALER INSPIRE service mark. The domain name incorporates the mark in its entirety, with only the deletion of the space between its terms and the addition of the country code Top Level Domain (“ccTLD”) “.us.” These alterations of the mark, made in forming the domain name, do not avoid a finding of identity or confusing similarity under the standards of the Policy.
See, for example, MIGROS-GENOSSENSCHAFTS-BUND v. Tayfun yalcin, FA 1621184 (Forum July 8, 2015):
In light of the fact that Respondent’s disputed domain name incorporates Complainant’s whole mark and merely adds the ccTLD “.us,” the Panel here finds that the disputed domain name is identical to Complainant’s … mark.
See also Blue Cross and Blue Shield Assoc. v. Shi Lei aka Shilei, FA 1784643 (Forum June 18, 2018):
A TLD (whether a gTLD, … or ccTLD) is disregarded under a Policy ¶ 4(a)(i) analysis because domain name syntax requires TLDs.
Further see Gurney’s Inn Resort & Spa Ltd. v. Whitney, FA 140656 (Forum February 19, 2003):
[S]paces between words are not significant in determining the similarity of a domain name and a mark because … spaces are not reproducible in a domain name.
Under Policy ¶ 4(a)(ii), Complainant must make out a prima facie showing that Respondent lacks rights to and legitimate interests in the contested <dealerinspire.us> domain name, whereupon the burden shifts to Respondent to show that it does have such rights or interests. See, for example, Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum August 18, 2006) (finding that a UDRP complainant must make a prima facie case that a respondent lacks rights to or legitimate interests in a disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to that respondent to show that it does have such rights or interests). See also AOL LLC v. Gerberg, FA 780200 (Forum September 25, 2006):
Complainant must … make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, … the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.
Complainant has made a sufficient prima facie showing under this head of the Policy. Respondent’s failure to respond to the Complaint therefore permits us to infer that Respondent does not have rights to or legitimate interests in the disputed domain name. See, for example, Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO December 21, 2000) (finding that a respondent’s failure to respond to a UDRP complaint allows a presumption that a complainant’s allegations are true unless they are clearly contradicted by the evidence). Nonetheless, we will examine the record before us, in light of the several considerations set out in Policy ¶ 4(c)(i)-(iv), to determine whether there is in it any basis for concluding that Respondent has rights to or legitimate interests in the contested domain name that are cognizable under the Policy.
We begin by noting that there is nothing in the record before us suggesting that Respondent is the owner or beneficiary of a trademark or service mark that is identical to the <dealerinspire.us> domain name. We conclude, therefore, that Respondent has no claim of rights to or legitimate interests in the domain name under Policy ¶ 4(c)(i). See, for example, Pepsico, Inc. v. Becky, FA 117014 (Forum September 3, 2002), finding that, because there was no evidence showing that a respondent owned a trademark or service mark reflecting a specific domain name, it could not lay claim to rights or legitimate interests in that domain name under Policy ¶ 4(c)(i).
We also note Complainant’s further assertion, to which Respondent does not object, that Respondent uses the <dealerinspire.us> domain name to pass itself off as Complainant via e-mail messages, derived from the domain name and purporting to be from Complainant, in pursuit of a scheme to profit by deceiving and defrauding unsuspecting Internet users seeking employment with Complainant. Because such a use of the domain name is inherently illegitimate, it cannot be said that this use satisfies the express requirement of Policy ¶ 4(c)(ii) that Respondent’s use of the domain name be “in connection with a bona fide offering of goods or services.”
We turn then to Complainant’s additional contention, which Respondent does not deny, that Respondent has not been commonly known by the challenged <dealerinspire.us> domain name. In this connection we note that the pertinent WHOIS information identifies the registrant of the domain name only as “Bella Angele,” which does not resemble the domain name. On this record, we conclude that Respondent has not been commonly known by the contested domain name so as to have demonstrated rights to or legitimate interests in it within the ambit of Policy ¶ 4(c)(iii). See, for example, Google LLC v. Bhawana Chandel / Admission Virus, FA 1799694 (Forum September 4, 2018), finding that a respondent was not commonly known by a disputed domain name incorporating the GOOGLE mark where the relevant WHOIS record identified that respondent only as “Bhawana Chandel.”
Finally, under this head of the Policy, because Respondent evidently employs the <dealerinspire.us> domain name to attempt to profit from the operation of a fraudulent scheme, we cannot conclude that Respondent is making a legitimate noncommercial or fair use of it within the meaning of Policy ¶ 4(c)(iv).
The Panel therefore finds that Complainant has amply satisfied the proof requirements of Policy ¶ 4(a)(ii).
We are persuaded by the evidence before us that Respondent’s use of the <dealerinspire.us> domain name, which we have found to be confusingly similar to Complainant’s DEALER INSPIRE service mark, is an effort by Respondent to profit from the confusion thus caused among Internet users as to the possibility of Complainant’s association with the domain name. Under Policy ¶ 4(b)(iv), this stands as proof of Respondent’s bad faith in registering and using the domain name. Abbvie, Inc. v. James Bulow, FA 1701075 (Forum November 30, 2016):
Respondent uses the … domain name to impersonate Complainant’s CEO. Such use is undeniably disruptive to Complainant’s business and demonstrates bad faith pursuant to Policy ¶… 4(b)(iv).
We are also convinced by the evidence that Respondent knew of Complainant and its rights in the DEALER INSPIRE mark when Respondent registered the <dealerinspire.us> domain name. This further illustrates Respondent’s bad faith in registering it. See, for example, Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum February 6, 2014):
The Panel … here finds actual knowledge [by respondent of a UDRP complainant’s rights in a mark on which a confusingly similar domain name was based, and therefore that respondent’s bad faith in registering it,] through the name used for the domain and the use made of it.
The Panel thus finds that Complainant has met its obligations of proof under Policy ¶ 4(a)(iii).
Complainant having established all three elements required to be proven under the usTLD Policy, the Panel concludes that the relief requested must be, and it is hereby, GRANTED.
Accordingly, it is Ordered that the <dealerinspire.us> domain name be TRANSFERRED forthwith from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: June 1, 2021
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