Maplebear Inc. d/b/a Instacart v. Adam Price
Claim Number: FA2203001989354
Complainant is Maplebear Inc. d/b/a Instacart ("Complainant"), represented by Lisa Greenwald-Swire of Fish & Richardson, P.C., Minnesota, USA. Respondent is Adam Price ("Respondent"), Russia.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <instacart-ipo.com>, registered with Eranet International Limited.
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.
David E. Sorkin as Panelist.
Complainant submitted a Complaint to the Forum electronically on March 22, 2022; the Forum received payment on March 22, 2022.
On March 25, 2022, Eranet International Limited confirmed by email to the Forum that the <instacart-ipo.com> domain name is registered with Eranet International Limited and that Respondent is the current registrant of the name. Eranet International Limited has verified that Respondent is bound by the Eranet International Limited 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 March 28, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 18, 2022 by which Respondent could file a Response to the Complaint, via email to all entities and persons listed on Respondent's registration as technical, administrative, and billing contacts, and to postmaster@instacart-ipo.com. Also on March 28, 2022, the Written Notice of the Complaint, notifying Respondent of the email 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 April 25, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed David E. Sorkin 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 operates a multi-sided technology and communications platform that facilitates grocery and consumer goods delivery and pickup services in the United States and Canada, serving more than 65,000 store locations in over 5,500 cities. Complainant's websites regularly receive over 30 million views per month. Complainant has used the INSTACART mark in connection with this business since 2012. Complainant owns trademark registrations for INSTACART in standard character form and otherwise in the United States, Russia, and many other jurisdictions, and also asserts common law rights in the mark. Complainant claims that the INSTACART mark is famous and cites a prior decision under the Policy that so found. See Maplebear Inc. DBA Instacart v. Eezo Duncan, FA 1898699 (Forum June 30, 2020) (finding actual knowledge based upon fame of INSTACART mark).
Respondent is the registrant of the disputed domain name <instacart-ipo.com>, which was registered in September 2021. The domain name is being used for a website that displays Complainant's mark and logo, and that Complainant describes as "aesthetically consistent with" and "indistinguishable from" Complainant's own website. Respondent's website solicits personal information from users under the guise of offering information about Complainant's rumored forthcoming IPO (initial public offering). Complainant states that Respondent is not commonly known by the disputed domain name and is not authorized or licensed to use Complainant's mark.
Complainant contends on the above grounds that the disputed domain name <instacart-ipo.com> is confusingly similar to its INSTACART mark; that Respondent lacks rights or legitimate interests in the disputed domain name; and that the disputed domain name was registered and is being used in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that the disputed domain name is confusingly similar to a mark in which Complainant has rights; that Respondent lacks rights or legitimate interests in respect of the disputed domain name; and that the disputed domain name was registered and is being used 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:
(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 Overview of WIPO Panel Views on Selected UDRP Questions, § 4.3 (3d ed. 2017), available at http://www.wipo.int/amc/en/domains/search/overview3.0/; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (dismissing complaint where complainant failed to "produce clear evidence to support its subjective allegations").
The disputed domain name <instacart-ipo.com> incorporates Complainant's registered INSTACART trademark, adding a hyphen, the abbreviation "IPO," and the ".com" top-level domain. These alterations do not substantially diminish the similarity between the domain name and Complainant's mark. See, e.g., Maplebear Inc. DBA Instacart v. Fahad Wares, FA 1915582 (Forum Oct. 29, 2020) (finding <instacartbd.com> confusingly similar to INSTACART); Advanced New Technologies Co., Ltd. v. WhoisGuard Protected, WhoisGuard, Inc. / Adam Price, D2020-3021 (WIPO Feb. 3, 2021) (finding <antfinipo.com> confusingly similar to ANTFIN); Nasdaq, Inc. v. Zhao Lei, FA 1895150 (Forum June 10, 2020) (finding <nasdaq-ipo.com> confusingly similar to NASDAQ); Airbnb, Inc. v. Jonathan Swan, FA 1865177 (Forum Oct. 28, 2019) (finding <airbnb-ipo.com> confusingly similar to AIRBNB); see also Airbnb, Inc. v. Adam Price, Organization Redacted, DAU2020-0002 (WIPO Mar. 11, 2020) (finding <airbnb-ipo.com.au> confusingly similar to AIRBNB under similar provision of .au Dispute Resolution Policy). The Panel considers the disputed domain name to be confusingly similar to a mark in which Complainant has rights.
Under the Policy, the Complainant must first make a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain name, and then the burden shifts to the Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Productions, Inc. v. Entertainment Commentaries, FA 741828 (Forum Aug. 18, 2006).
The disputed domain name incorporates Complainant's registered mark without authorization, and it is being used for a misleading website that displays Complainant's mark and mimics its trade dress. Such use does not give rise to rights or legitimate interests under the Policy. See, e.g., Advanced New Technologies Co., Ltd. v. WhoisGuard Protected, WhoisGuard, Inc. / Adam Price, supra (finding lack of rights or interests in similar circumstances); Airbnb, Inc. v. Jonathan Swan, supra (same); see also Airbnb, Inc. v. Adam Price, Organization Redacted, supra (same, under equivalent provision of .au Dispute Resolution Policy).
Complainant has made a prima facie case that Respondent lacks rights and legitimate interests in the domain name, and Respondent has failed to come forward with any evidence of such rights or interests. Accordingly, the Panel finds that Complainant has sustained its burden of proving that Respondent lacks rights or legitimate interests in respect of the disputed domain name.
Finally, Complainant must show that the disputed domain name was registered and is being used in bad faith. Under paragraph 4(b)(iii) of the Policy, bad faith may be shown by evidence that Respondent registered the disputed domain name "primarily for the purpose of disrupting the business of a competitor." Under paragraph 4(b)(iv), bad faith may be shown by evidence that "by using the domain name, [Respondent] intentionally attempted to attract, for commercial gain, Internet users to [Respondent's] web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of [Respondent's] web site or location or of a product or service on [Respondent's] web site or location."
Respondent registered a domain name incorporating Complainant's well-known mark and is using it for a misleading website that displays Complainant's mark and logo, mimics Complainant's trade dress, and solicits personal information from users, likely as part of a phishing scheme or for other fraudulent purposes. Such conduct is indicative of bad faith registration and use under the Policy. See, e.g., Advanced New Technologies Co., Ltd. v. WhoisGuard Protected, WhoisGuard, Inc. / Adam Price, supra (finding bad faith registration and use in similar circumstances); Airbnb, Inc. v. Jonathan Swan, supra (same). The Panel so finds.
Having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <instacart-ipo.com> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: April 25, 2022
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