Ace Relocation Systems, Inc. v. Sells vondour / Craig standley8
Claim Number: FA2201001982715
Complainant is Ace Relocation Systems, Inc. (“Complainant”), represented by Sherry Flax of Saul Ewing Arnstein & Lehr LLP, Maryland, USA. Respondent is Sells vondour / Craig standley8 (“Respondent”), Nevada, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <acerelocationservice.com>, registered with NameSilo, 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.
Paul M. DeCicco, as Panelist.
Complainant submitted a Complaint to the Forum electronically on January 31, 2022; the Forum received payment on January 31, 2022.
On February 1, 2022, NameSilo, LLC confirmed by e-mail to the Forum that the <acerelocationservice.com> domain name is registered with NameSilo, LLC and that Respondent is the current registrant of the name. NameSilo, LLC has verified that Respondent is bound by the NameSilo, 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 February 2, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 22, 2022 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@acerelocationservice.com. Also on February 2, 2022, 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 March 24, 2022, 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, Ace Relocation Systems, Inc., operates a moving and logistics company.
Complainant asserts rights in the ACE RELOCATION SYSTEMS mark through its registration with the USPTO. Respondent’s <acerelocationservice.com> domain name is identical or confusingly similar to Complainant’s ACE RELOCATION SYSTEMS mark, merely changing the term “systems” to “service” and adding the “.com” generic top-level domain (“gTLD”).
Respondent lacks rights and legitimate interests in the <acerelocationservice.com> domain name as it is not commonly known by the disputed domain name and is neither an authorized user nor a licensee of the ACE RELOCATION SYSTEMS mark. Additionally, Respondent does not use the at-issue domain name for any bona fide offer of goods or services, nor for any legitimate noncommercial or fair use. Instead, Respondent uses the website to pass off as Complainant and attempt to mislead consumers.
Respondent registered and uses the <acerelocationservice.com> domain name in bad faith. Respondent registered and uses the domain name primarily to pass off as Complainant and phish for users’ financial information. Such use may demonstrate bad faith disruption and attraction to commercial gain. Complainant also purportedly sent Respondent a cease and desist letter regarding the disputed domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has trademark rights in the ACE RELOCATION SYSTEMS mark.
Respondent registered the at-issue domain name after Complainant acquired rights in ACE RELOCATION SYSTEMS.
Complainant’s has not authorized Respondent to use Complainant’s trademark.
Respondent used the at-issue domain name to pass itself off as Complainant in furtherance of phishing.
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 or identical to a trademark in which Complainant has rights.
Complainant’s ownership of a USPTO trademark registration for EQONEX demonstrates Complainant’s rights in a mark under Policy ¶ 4(a)(i). See Recreational Equipment, Inc. v. Liu Chan Yuan, FA 2107001954773 (Forum Aug. 9, 2021) (“Registration of a mark with the USPTO is sufficient to demonstrate rights in the mark per Policy ¶ 4(a)(i)”); see also Synovus Financial Corp. v. Elizabeth Fagin / Wells & Wadw, FA 1601001655021 (Forum Feb. 5, 2016) (finding that Complainant had demonstrated its rights in the SYNOVUS mark through its registration with the USPTO).
Respondent’s <acerelocationservice.com> domain name contains Complainant’s trademark with the mark’s third term, SYSTEMS, substituted by the suggestive term “service,” and with all followed by the top-level domain name, “.com.” The differences between Complainant’s trademark and Respondent’s domain name are insufficient to distinguish one from the other for the purposes of the Policy. Therefore, the Panel finds that Respondent’s <acerelocationservice.com> domain name is confusingly similar to Complainant’s ACE RELOCATION SYSTEMS trademark under Policy ¶ 4(a)(i). See Dell Inc. v. pushpender chauhan, FA 1784548 (Forum June 11, 2018) (“Respondent merely adds the term ‘supports’ and a ‘.org’ gTLD to the DELL mark. Thus, the Panel finds Respondent’s disputed domain name is confusingly similar to Complainant’s DELL mark per Policy ¶ 4(a)(i).”); see also VNY Model Management, Inc. v. Lisa Katz / Domain Protection LLC, FA 1625115 (Forum Aug. 17, 2015) (finding that Respondent’s <vnymodels.com> domain name is confusingly similar to the VNY MODEL MANAGEMENT mark under Policy ¶ 4(a)(i).).
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).
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 legitimate 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 indicates “Sells vondour / Craig standley8” is the domain name’s registrant and there is no evidence before the Panel that otherwise shows Respondent is commonly known by the <acerelocationservice.com> domain name. Therefore, the Panel finds that Respondent is not commonly known by the at-issue domain name pursuant to Policy ¶ 4(c)(ii). See Instron Corp. v. Kaner, FA 768859 (Forum Sept. 21, 2006) (finding that the respondent was not commonly known by the disputed domain names because the WHOIS information listed “Andrew Kaner c/o Electromatic a/k/a Electromatic Equip't” as the registrant and there was no other evidence in the record to suggest that the respondent was commonly known by the domain names in dispute).
Respondent uses the at-issue domain name to pass itself off as Complainant. The website addressed by the domain name appears to mimic the “look and feel” of Complainant’s genuine website however when an internet user accesses the site, numerous advertisements appear. Respondent undoubtedly receives revenue from such advertisements. Respondent’s use of the domain name in this manner shows neither a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See Dell Inc. v. Devesh Tyagi, FA 1785301 (Forum June 2, 2018) (“Respondent replicates Complainant’s website and displays Complainant’s products. The Panel finds that this use is not a bona fide offering of goods or services under Policy ¶¶ 4(c)(i) & (iii).”); see also DaVita Inc. v. Cynthia Rochelo, FA 1738034 (Forum July 20, 2017) (”Passing off in furtherance of a phishing scheme is not considered a bona fide offering of goods or services or legitimate noncommercial or fair use.”).
Given the forgoing, Complainant demonstrates Respondent’s lack of rights and lack of interests in the <acerelocationservice.com> domain name.
The at-issue domain name was registered and used in bad faith. As discussed below without limitation, bad faith circumstances are present from which the Panel concludes that Respondent acted in bad faith pursuant to Policy ¶ 4(a)(iii).
Respondent uses <acerelocationservice.com> to pass itself off as Complainant so as to divert internet users to a website dressed to further confuse such users into falsely believing that they are dealing with Complainant. The website ultimately offers revenue generating advertising links that benefit Respondent. Using the at-issue domain name in this way is disruptive to Complainant’s business and capitalizes on the confusion Respondent creates between <acerelocationservice.com> and Complainant’s trademark to inappropriately exploit Complainant’s ACE RELOCATION SYSTEMS mark. Respondent’s use of the domain name thereby demonstrates Respondent’s bad faith registration and use of <acerelocationservice.com> under Policy ¶¶ 4(b)(iii) and (iv). See DatingDirect.com Ltd. v. Aston, FA 593977 (Forum Dec. 28, 2005) (“Respondent is appropriating Complainant’s mark to divert Complainant’s customers to Respondent’s competing business. The Panel finds this diversion is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iii).”); 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.”); see also, T-Mobile USA, Inc. v. utahhealth, FA 697821 (Forum June 7, 2006) (holding that the registration and use of a domain name confusingly similar to a complainant’s mark to direct Internet traffic to a commercial “links page” in order to profit from click-through fees or other revenue sources constitutes bad faith under Policy ¶ 4(b)(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 <acerelocationservice.com> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: March 25, 2022
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