A Place for Mom, Inc. v. Venkat Vangala / Foremost Organization
Claim Number: FA2111001972048
Complainant is A Place for Mom, Inc. (“Complainant”), represented by Ashly I. Boesche of Pattishall, McAuliffe, Newbury, Hilliard & Geraldson LLP, Illinois, USA. Respondent is Venkat Vangala / Foremost Organization (“Respondent”), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <aplaceformom360.org> and <aplaceformom360.com> domain names, registered with Google LLC.
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.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on November 4, 2021; the Forum received payment on November 4, 2021.
On November 4, 2021, Google LLC confirmed by e-mail to the Forum that the <aplaceformom360.org> and <aplaceformom360.com> domain names are registered with Google LLC and that Respondent is the current registrant of the names. Google LLC has verified that Respondent is bound by the Google LLC 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 8, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 29, 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@aplaceformom360.com, postmaster@aplaceformom360.org. Also on November 8, 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 timely, formal response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default. Respondent did however send emails to the Forum, see below.
On December 6, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Richard Hill 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 names be transferred from Respondent to Complainant.
A. Complainant
Complainant states that it provides assistance to families seeking senior care options. Complainant has rights in the A PLACE FOR MOM mark through its registration of the mark in the United States in 2006. The mark is also registered elsewhere and it is well known.
Complainant alleges that the disputed domain names are identical or confusingly similar to its mark as they incorporate the mark in its entirety and merely add the number “360” along with the “.com” and “.org” generic top-level domains (“gTLDs”). Complainant cites UDRP precedents to support its position.
According to Complainant, Respondent lacks rights and legitimate interests in the disputed domain names. Respondent is not commonly known by the disputed domain names, nor has Complainant authorized or licensed Respondent to use its mark. Respondent does not use the disputed domain names for any bona fide offerings of goods or services, nor any legitimate noncommercial or fair use. Instead, one of the disputed domain names resolves to a website that offers competing services; the other disputed domain name is not being used. Complainant cites UDRP precedents to support its position.
Further, according to Complainant, Respondent registered and uses the disputed domain names in bad faith. The resolving website of one of the disputed domain names offers competing services; the other disputed domain name is not being used. Respondent registered the disputed domain names with knowledge of Complainant’s rights in the A PLACE FOR MOM mark. Complainant cites UDRP precedents to support its position.
B. Respondent
Respondent failed to submit a timely and/or formal Response in this proceeding. In its emails to the Forum, Respondent states, in pertinent part: I own [the disputed domain names] from Google Domains site legally. A PlaceForMom company has no right to dispute it, so late in the game. They had no foresight and failed to protect themselves. Google domains have given me the registration to those domains. They have no right to dispute it. I have every right to fight it.” And: “If [A] Place for Mom company wants to buy my domains they can. I might consider selling the domains for a reasonable price, but they cannot argue the domains? I purchased from Google. Have them put an offer, I’ll look into it.”
Complainant owns the mark A PLACE FOR MOM and uses it to provide assistance to families seeking senior care options. The mark is well known.
Complainant’s rights in its mark date back to 2006.
The disputed domain names were registered in 2021.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
One of the disputed domain names resolves to a web site that offers services that compete with those of Complainant. The other disputed domain name is not being used.
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 timely and/or formal 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 disputed domain names incorporate Complainant’s mark in its entirety and merely add the number “360” along with the “.com” and “.org” generic top-level domains (“gTLDs”). Under Policy ¶ 4(a)(i), adding numbers and a gTLD to the end of a mark is generally insufficient in differentiating a disputed domain name from the mark it incorporates. See Novartis AG v. boggs, william, FA 1570988 (Forum Aug. 25, 2014) (finding that the <freshlook2.com> domain name was confusingly similar to the complainant’s FRESHLOOK mark because the domain name contained the mark in its entirety and merely added the number “2”); see also YogaBody Naturals LLC v. George Elenis / Yogabody 360 LLC, FA2009001911945 (Forum Oct. 19, 2020) (“Finding <yogabody360studios.com> confusingly similar to YOGABODY because “360” is a “generic or descriptive term[] with relatively weak distinguishing powers.”); see also j2 Global Canada, Inc. and Landslide Technologies, Inc. v. Vijay S Kumar / Strategic Outsourcing Services Pvt. Ltd., FA1511001647718 (Forum Jan. 4, 2016) (finding that “360” is a descriptive term). Therefore the Panel finds that the disputed domain names are confusingly similar to Complainant’s mark under Policy ¶ 4(a)(i).
Complainant has not licensed or otherwise authorized Respondent to use it’s A PLACE FOR MOM mark. Respondent is not commonly known by the disputed domain names: under Policy ¶ 4(c)(ii), relevant WHOIS information may demonstrate that a Respondent is not commonly known by a disputed domain name. See PragmaticPlay Limited v. Robert Chris, FA2102001932464 (Forum Mar. 23, 2021) (“The WHOIS information of record lists the registrant as “Robert Chris,” and no other information of record suggests Respondent is commonly known by the domain name. Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).”). Here, the WHOIS of record identifies the registrant of the disputed domain names as “Venkat Vangala”. Therefore the Panel finds that Respondent is not commonly known by the disputed domain names under Policy ¶ 4(c)(ii).
The domain name <aplaceformom360.org> resolves to a website that offers competing services. Under Policy ¶¶ 4(c)(i) and (iii), using a disputed domain name to offer competing products or services is generally not considered a bona fide offering of goods or services, nor a legitimate noncommercial or fair use. See Walgreen Co. v. Privacy protection service - whoisproxy.ru, FA 1785188 (Forum June 10, 2018) (“Respondent uses the <walgreensviagra.net> domain name to pass itself off as Complainant and display links to a website offering products similar to those offered by Complainant. Using the domain name in this manner is neither a bona fide offering of goods or services under Policy ¶4(c)(i), nor a non-commercial or fair use under Policy ¶4(c)(iii).”). Therefore the Panel finds that Respondent fails to use the <aplaceformom360.org> domain name for a bona fide offering of goods or services, or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) and (iii).
The <aplaceformom360.com> domain name is not being used. Under Policy ¶¶ 4(c)(i) and (iii), inactively holding a disputed domain name is generally not considered a bona fide offering of goods or services, nor a legitimate noncommercial or fair use. See Dell Inc. v. link growth / Digital Marketing, FA 1785283 (Forum June 7, 2018) (“Respondent’s domain names currently display template websites lacking any substantive content. The Panel finds that Respondent has does not have rights or legitimate interests with respect of the domain name per Policy ¶¶ 4(c)(i) or (iii).”). Therefore the Panel finds that Respondent fails to use the <aplaceformom360.com> domain name for a bona fide offering of goods or services, or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) and (iii).
For all the above reasons, the Panel finds that Respondent does not have rights or legitimate interests in the disputed domain names.
Respondent appears to argue (by stating “so late in the game”) that the present Complaint might be time-barred. Since the disputed domain names were registered in 2021, there is no merit to this argument and the Panel will not further consider it.
Respondent argues that Complainant has no right to dispute Respondent’s registrations of the disputed domain names because Respondent obtained them legally from the registry. However, such is not the case: the Policy provides the basis for Complainant to challenge the registrations and request transfer of the disputed domain names.
Respondent has not presented any plausible explanation for its use of Complainant’s mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain names.
Indeed, as already noted, the disputed domain name <aplaceformom360.org> resolves to a website that offers competing services. Under Policy ¶ 4(b)(iv), using a disputed domain name to promote competing services may be evidence of bad faith attraction for commercial gain. See Asbury Auto Group Inc. v. Tex. Int'l Prop Assocs, FA 958542 (Forum May 29, 2007) (finding that the respondent's use of the disputed domain name to compete with the complainant's business would likely lead to confusion amongst Internet users as to the sponsorship or affiliation of a competing business and was therefore evidence of bad faith and use); see also Xylem Inc. and Xylem IP Holdings LLC v. YinSi BaoHu YiKaiQi, FA1504001612750 (Forum May 13, 2015) (“The Panel agrees that Respondent’s use of the website to display products similar to Complainant’s, imputes intent to attract Internet users for commercial gain, and finds bad faith per Policy ¶ 4(b)(iv).”). Therefore the Panel finds that Respondent registered and uses the <aplaceformom360.org> domain name in bad faith under Policy ¶ 4(b)(iv).
Also as already noted, the disputed domain name <aplaceformom360.com> is not being used. According to paragraph 3.3 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (WIPO Jurisprudential Overview 3.0): “From the inception of the UDRP, panelists have found that the non-use of a domain name (including a blank or “coming soon” page) would not prevent a finding of bad faith under the doctrine of passive holding. While panelists will look at the totality of the circumstances in each case, factors that have been considered relevant in applying the passive holding doctrine include: (i) the degree of distinctiveness or reputation of the complainant’s mark, (ii) the failure of the respondent to submit a response or to provide any evidence of actual or contemplated good-faith use, (iii) the respondent’s concealing its identity or use of false contact details (noted to be in breach of its registration agreement), and (iv) the implausibility of any good faith use to which the domain name may be put.”
In the present case, Complainant’s trademark is well known. It is difficult to envisage any use of the disputed domain name that would not violate the Policy, see Morgan Stanley v. TONY / shentony, FA 1637186 (Forum Oct. 10, 2015) (“Respondent registered the disputed domain name [MORGANSTANLEY.ONLINE] in bad faith because . . . it is difficult to envisage any use of the disputed domain name that would not violate the Policy”); see also Singapore Airlines Ltd. v. European Travel Network, D2000-0641 (WIPO Aug. 29, 2000) (where selection of disputed domain name is so obviously connected to complainant’s well-known trademark, use by someone with no connection with complainant suggests opportunistic bad faith); see also Starwood Hotels & Resorts Worldwide, Inc., Sheraton Int’l IP, LLC, Westin Hotel Mgmt., L.P. v. Jingjing Tang, D2014-1040 (WIPO Aug. 19, 2014) (“The Panel finds that the [WESTIN] Marks are not such that could legitimately be adopted by traders other than for the purpose of creating an impression of an association with Complainant. Thus, the Panel concludes that the disputed domain names were registered in bad faith”).
There has been no formal response to the Complaint and Respondent used a privacy service, that it, it attempted to conceal its identity. Given these circumstances, the Panel finds that, in this particular case, a finding of bad faith use can be inferred even though the disputed domain name is not being actively used. See Telstra Corporation Limited v. Nuclear Marshmallows, D2000-0003 (WIPO Feb. 18, 2000).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <aplaceformom360.org> and <aplaceformom360.com> domain names be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: December 6, 2021
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