Echo Global Logistics Inc. v. Mykhailo Savchuk / Echo Express, Inc
Claim Number: FA2202001983301
Complainant is Echo Global Logistics Inc. (“Complainant”), represented by Mary Grace Gallagher of Alston & Bird, LLP, Georgia, USA. Respondent is Mykhailo Savchuk / Echo Express, Inc (“Respondent”), Oregon, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <echoexpressinc.com>, (‘the Domain Name’) registered with GoDaddy.com, LLC.
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 February 4, 2022; the Forum received payment on February 4, 2022.
On February 7, 2022, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <echoexpressinc.com> Domain Name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, 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 7, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 28, 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@echoexpressinc.com. Also on February 7, 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 7, 2022 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:
The Complainant is the owner of the mark ECHO registered, inter alia, in the USA for transportation services with first use recorded as 2005. It owns echo.com and echoexpress.com.
The Domain Name registered in 2019 is confusingly similar to the Complainant’s mark adding the generic terms ‘express’ and ‘inc’ and the gTLD “.com” which do not prevent said confusing similarity.
The Respondent does not have rights or a legitimate interests in the Domain Name, is not commonly known by the Domain Name and is not authorized by the Complainant.
The Domain Name resolves to a web site offering competing transportation services using the Complainant’s ECHO mark in an identical font in its masthead. The e mail sign off details for Respondent’s employees contains the Complainant’s echoexpress.com domain. By these means the Respondent is falsely suggesting to customers that it is or is associated with the Complainant. This is not a bona fide offering of goods or services or a legitimate noncommercial or fair use, but registration and use in bad faith diverting Internet users for commercial gain in actual knowledge of the Complainant and its business.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Complainant is the owner of the mark ECHO registered, inter alia, in the USA for transportation services with first use recorded as 2005. It owns echo.com and echoexpress.com.
The Domain Name registered in 2019 has been used for competing transportation services using the Complainant’s ECHO mark in its masthead in an identical font. Sign offs for Respondent’s employees contain the Complainant’s url echoexpress.com.
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 Domain Name in this Complaint combines the Complainant’s ECHO mark (registered, inter alia, in the USA for transportation services with first use recorded as 2005), the generic terms ‘express’ and ‘inc’ and the gTLD “.com”.
The addition of a generic term and a gTLD does not negate confusing similarity between a domain name and a trade mark contained within it. See Wiluna Holdings LLC v. Edna Sherman, FA 1652781 (Forum Jan. 22, 2016) (Finding the addition of a generic term and gTLD insufficient to distinguish a disputed domain name from a mark under Policy 4(a)(i).).
Accordingly, the Panel finds that the Domain Name is confusingly similar to a mark in which the Complainant has rights for the purpose of the Policy.
Rights or Legitimate Interests
The Complainant has not authorized use of its mark. The Respondent has not answered this Complaint and whilst in the WhoIs details he is named as Mykhailo Savchuk / Echo Express, Inc. where WHOIS Information contains some of the same details as in a domain name, past panels have required confirmatory evidence of the same under Policy ¶ 4(c)(ii). See Google Inc. v. S S / Google International, FA1506001625742 (Forum Aug. 4, 2015) (“Respondent did identify itself as ‘Google International’ in connection with its registration of the Disputed Domain Name, and this is reflected in the WHOIS information. However, Respondent has not provided affirmative evidence from which the Panel can conclude that Respondent was commonly known by the Disputed Domain Name before Respondent’s registration thereof.”). The WHOIS of record does identify the Registrant organization as “Echo Express Inc.”, but Respondent has provided no further evidence or response to prove this is the case beyond the WHOIS details and the material attached to the Domain Name which appears to be unfairly associating itself with the Complainant and its reputation (further discussed below).
The use made of the Domain Name is commercial and so is not legitimate noncommercial fair use.
The Domain Name has been used for competing transportation services in a confusing manner using the Complainant’s ECHO mark in an identical font in its masthead. Further, e mail sign off details for e mails sent via the Domain Name used to transact business for the Respondent by its representatives use the Complainant’s url echoexpress.com in an apparent blatant attempt to suggest an association with the Complainant and its business where there is none. Use of a domain name containing a third party mark for competing services in a confusing manner is not a bona fide offering of goods or services. See Am. Intl Group Inc. v. Benjamin, FA 944242 (Forum May 11, 2007) (finding that the Respondent's use of a confusingly similar domain name to advertise real estate services which competed with the Complainant's business did not constitute a bona fide use of goods and services.).
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
In the opinion of the panelist the use made of the Domain Name in relation to the site attached to it is confusing and disruptive in that visitors to the site might reasonably believe it is connected to or approved by the Complainant as it offers competing services under a Domain Name containing the Complainant’s ECHO mark. The site attached to the Domain Name also uses the Complainant’s ECHO mark in an identical font in its masthead. The Complainant’s url echoexpress.com has been used in the sign offs details for e mails sent via the Domain Name used to transact the Respondent’s business by its representatives. The use of the Complainant’s font and url shows the Respondent has actual knowledge of the Complainant, its business, rights and services.
Accordingly, the Panel holds that the Respondent has intentionally attempted to attract for commercial gain Internet users to his website by creating a likelihood of confusion with the Complainant's trade mark as to the source, sponsorship, affiliation or endorsement of the web site and services offered on it likely to disrupt the business of the Complainant. 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 advertise car dealerships that competed with the complainant's business would likely lead to confusion amongst Internet users as to the sponsorship or affiliation of those competing dealerships and was therefore evidence of bad faith and use).
As such, the Panelist believes 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)(iii) and 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 <echoexpressinc.com> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: March 7, 2022
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