Owen Faricy Motor Company d/b/a The Faricy Boys v. Hulmiho Ukolen / Poste restante
Claim Number: FA2106001949181
Complainant is Owen Faricy Motor Company d/b/a The Faricy Boys (“Complainant”), represented by Jami J. Farris of Parker Poe Adams & Bernstein, LLP, North Carolina, USA. Respondent is Hulmiho Ukolen / Poste restante (“Respondent”), Finland.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <faricyboys.com>, (‘the Domain Name’) registered with Gransy, s.r.o..
The undersigned certifies that she has acted independently and impartially and to the best of her knowledge has no known conflict in serving as Panelist in this proceeding.
Dawn Osborne as Panelist.
Complainant submitted a Complaint to the Forum electronically on June 1, 2021; the Forum received payment on June 1, 2021.
On June 2, 2021, Gransy, s.r.o. confirmed by e-mail to the Forum that the <faricyboys.com> domain name is registered with Gransy, s.r.o. and that Respondent is the current registrant of the name. Gransy, s.r.o. has verified that Respondent is bound by the Gransy, s.r.o. 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 June 3, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 23, 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@faricyboys.com. Also on June 3, 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 June 25, 2021 pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Dawn Osborne 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’s contentions can be summarized as follows:
Complainant d/b/a The Faricy Boys owns and operates a Chrysler Jeep motor vehicle dealership in the Colorado Springs, Colorado area and uses the name “The Faricy Boys” to promote this dealership. Complainant registered the trade name “The Faricy Boys Chrysler Plymouth Jeep” as an assumed or trade name with the Colorado Secretary of State on August 26, 1997 and has used ‘The Faricy Boys’ continuously since then such that it has gained secondary meaning. It owns faricy.com registered in 1998.
The Domain Name registered in 1999 is confusingly similar to the Complainant’s mark only omitting the non distinct word ‘the’ and adding the gTLD “.com” which do not prevent this confusing similarity.
The Respondent has no rights or legitimate interests in the Domain Name is not commonly known by it and is not authorized by the Complainant.
The Domain Name has been used for pay per click links to the Complainant’s competitors which is not a bona fide offering of goods or services or a legitimate noncommercial fair use.
The Domain Name has also been offered for sale generally for $9750 or accepting bids with a minimum offer of $1,219 which is also indicative of a lack of rights or legitimate interests.
Use of a Domain Name for pay per click links to competitors (attracting Internet users for commercial gain and disrupting the Complainant’s business) and offering a domain name for sale generally for a sum in excess of costs of registration are both registration and use in bad faith under the Policy.
The Respondent has been the subject of a number of adverse rulings under the Policy for registering domain names containing the distinctive marks of third parties which is also a pattern of activity and again indicative of registration and use in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant d/b/a The Faricy Boys owns and operates a Chrysler Jeep motor vehicle dealership in the Colorado Springs, Colorado area and uses the name “The Faricy Boys” to promote this dealership. Complainant registered the trade name “The Faricy Boys Chrysler Plymouth Jeep” as an assumed or trade name with the Colorado Secretary of State on August 26, 1997 and has used it since then. It owns faricy.com registered in 1998.
The Domain Name registered in 1999 has been used for competing links and offered for sale generally for $9750, accepting bids with a minimum offer of $1,219. The Respondent has been the subject of a number of adverse rulings under the Policy.
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 is the owner of common law rights in the mark THE FARICY BOYS having used it continuously since 1997 for motor vehicle dealership services. The Domain Name uses the distinctive part of the Complainant's mark ‘Faricy Boys’ omitting only the word ‘the’ and adding the gTLD “.com”.
Omitting the word ‘the’ from the Complainant’s mark in the Domain Name does not prevent confusing similarity between the latter and the former. Nor does adding a gTLD which does not serve to distinguish a domain name from a complainant’s mark. See Red Hat Inc. v. Haecke, FA 726010 (Forum July 24, 2006) (concluding that the redhat.org domain name is identical to the complainant's red hat mark because the mere addition of the gTLD was insufficient to differentiate the disputed domain name from the mark).
Accordingly, the Panel holds that the Domain Name is confusingly similar for the purpose of the Policy to a mark in which the Complainant has rights.
As such the Panel holds that Paragraph 4(a)(i) of the Policy has been satisfied.
Rights or Legitimate Interests
The Complainant has not authorized the use of its mark. The Respondent has not answered this Complaint and there is no evidence or reason to suggest the Respondent is, in fact, commonly known by the Domain Name. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum Sept. 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark).
The Respondent has used the site attached to the Domain Names for links offering competing services not connected with the Complainant. The panel finds this confusing as the Respondent does not make it clear that there is no commercial connection with the Complainant. See CheapCaribbean.com, Inc. v. Moniker Privacy Services, FA1411001589962 (Forum Jan. 1, 2015) (“The Panel finds that Respondent’s use of the <cheepcaribbean.com> name to promote links in competition with Complainant’s travel agency services does not fall within Policy ¶ 4(c)(i)’s bona fide offering of goods or services, nor does it amount to a legitimate noncommercial or fair use described in Policy ¶ 4(c)(iii).”).
The Respondent has offered the Domain Name containing a sign confusingly similar to the Complainant’s mark for sale for $9750 generally, a sum in excess of the costs of registration which is not a bona fide offering of goods or services or a legitimate noncommercial or fair use. See Twentieth Century Fox Film Corporation v. Diego Ossa, FA1501001602016 (Forum Feb. 26, 2015)
As such the Panelist finds that the Respondent does not have rights or a legitimate interest in the Domain Name and that the Complainant has satisfied the second limb of the Policy.
Registration and Use in Bad Faith
The Respondent has not answered this Complaint or explained why it should be allowed to register a domain name containing a sign confusingly similar to the Complainant’s mark.
Use for competing pay per click links indicates bad faith being disruptive of the Complainant’s business and diverting customers for commercial gain and can indicate actual knowledge of the Complainant and its business. See American Council on Education and GED Testing Service LLC v. Anthony Williams, FA1760954 (Forum Jan. 8, 2018) (“Respondent’s hosting of links to Complainant’s competitors demonstrates bad faith registration and use of the <geddiploma.org> domain name pursuant to Policy 4(b)(iii)”); see also Capital One Financial Corp. v. DN Manager / Whois-Privacy.Net Ltd, FA1504001615034 (Forum June 4, 2015) (holding that the respondent’s use of the <capitaloneonebank.com> domain name to display links to the complainant’s competitors, such as Bank of America, Visa, Chase and American Express constituted bad faith pursuant to Policy 4(b)(iv)). See also University of Rochester v. Park HyungJin, FA1410001587458 (Forum Dec. 9, 2014) (where the Panel inferred Respondent’s actual knowledge based on Respondent’s use of the domain name to promote links related to the same field as where Complainant’s mark is used.).
The Domain Name has been offered for sale for profit for $9750, a sum in excess of out of pocket registration costs relating to the Domain Name. See Deutsche Lufthansa AG v. Kenechukwu Okoli, FA 1821759 (Forum Jan. 13, 2019) (“The domain name’s website listed the domain name for sale for $9,150. …Doing so suggests bad faith registration and use of the <lufthansamiles.com> domain name pursuant to Policy ¶ 4(b)(i).”).
Respondent has been the subject of a number of adverse decisions under the Policy exhibiting a pattern of bad faith registration. Under Policy ¶ 4(b)(ii), where a Respondent has been party to a number of UDRP cases where a domain name was transferred away from them, panels have found a pattern of bad faith. See TRAVELOCITY.COM LP v. Aziz, FA 1260783 (Forum June 16, 2009) (“These previous [UDRP] decisions demonstrate a pattern of bad faith registration and use of domain names under Policy ¶ 4(b)(ii).”).
As such, the Panel holds that the Complainant has made out its case that the Domain Name was registered and used in bad faith and has satisfied the third limb of the Policy under paragraphs 4(b)(i), (ii), (iii) and (iv).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <faricyboys.com> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: June 25, 2021
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