My Pet Cab, LLC v. scott power / happi
Claim Number: FA2204001992497
Complainant is My Pet Cab, LLC (“Complainant”), represented by Staci R. DeRegnaucourt of Varnum LLP, Michigan, USA. Respondent is scott power / happi (“Respondent”), Cameroon.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <starwoodanimalstransport.com>, (‘the Domain Name’) registered with NameCheap, Inc..
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 April 14, 2022; the Forum received payment on April 14, 2022.
On April 14, 2022, NameCheap, Inc. confirmed by e-mail to the Forum that the <starwoodanimalstransport.com> Domain Name is registered with NameCheap, Inc. and that Respondent is the current registrant of the name. NameCheap, Inc. has verified that Respondent is bound by the NameCheap, Inc. 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 April 18, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 9, 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@starwoodanimalstransport.com. Also on April 18, 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 May 16, 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 common law rights in STARWOOD and STARWOOD ANIMAL TRANSPORT mark for animal transportation services which the Complainant has used itself since at least May 2021. It owns starwoodanimaltransport.com.
The Domain Name registered in September 2021 is confusingly similar to the Complainant’s trade mark adding only the letter‘s’ and the gTLD “.com”. The Domain Name is the same as the Complainant’s domain name starwoodanimaltranport.com (first registered by the Complainant’s predecessor in title in 2004 in which the Complainant also owns common law rights by virtue of acquisition of its predecessor’s rights in STARWOOD), save that a letter ‘s’ has been added.
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 to offer competing animal transportation services. Queries have been raised with the Complainant as to whether this is a scam. This is not a bona fide offering of goods or services or a legitimate noncommercial or fair use. It is registration and use in bad faith confusing Internet users for gain in actual knowledge of the Complainant’s rights.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Complainant is the owner of common law rights in STARWOOD and STARWOOD ANIMAL TRANSPORT mark for animal transportation services which the Complainant has used since April 2021. It owns starwoodanimaltransport.com.
The Domain Name registered in September 2021 has been used to purport to offer competing animal transportation services.
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 asserts that it owns common law rights in the marks STARWOOD and STARWOOD ANIMAL TRANSPORT due to its use of these marks since at least May 2021 and acquisition of prior rights. No evidence has been given of acquisition of any third party prior rights save that the Complainant now owns starwoodanimaltransport.com which was registered in 2004, but this only proves the acquisition of this domain name not any associated goodwill. However the evidence of the Complainant’s web site from April 2021 shows that it was operating an established business at that time. Accordingly, the Panel finds that the Complainant has common law rights in the STARWOOD and STARWOOD ANIMAL TRANSPORT marks with first use since April 2021.
The Domain Name registered in September 2021 consist of a sign confusingly similar to the Complainant's STARWOOD ANIMAL TRANSPORT mark merely adding a letter ‘s’ and the gTLD “.com”.
Adding a single letter to a complainant’s mark does not prevent confusing similarity between that mark and a domain name. See LodgeWorks Partners, L.P. v. Isaac Goldstein / POSTE RESTANTE, FA 1717300 (Forum Apr. 5, 2017) (“The Panel agrees; Respondent’s <archerhotels.com> is confusingly similar to complainant’s ARCHER HOTEL mark.”). The Panel finds that adding the single letter ‘s’ does not prevent confusing similarity between the Domain Name and the Complainant’s mark.
The gTLD “.com” does not serve to distinguish the Domain Name from the 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 TLD was insufficient to differentiate the disputed domain name from the mark).
Accordingly, the Panel holds that the Domain Name is confusingly similar to the Complainant’s mark.
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 STARWOOD ANIMAL TRANSPORT mark. 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 Panel notes the suggestion in evidence of a third party query to the Complainant that the Respondent’s site may be a scam, the suggestion being that there is no real business behind the Respondent’s site, but no actual evidence of this has been presented.
Nevertheless the web site attached to the Domain Name uses a sign highly similar to the Complainant's STARWOOD ANIMAL TRANSPORT mark as a masthead to purport to offer competing animal transportation services. The Panel finds this use is confusing. As such it cannot amount to the bona fide offering of goods and services. See Am. Intl Group Inc. v. Benjamin, FA 944242 (Forum May 11, 2007) (finding that the Respondent's use of a domain name to compete with the Complainant's business did not constitute a bona fide use of goods and services.). The Respondent has not answered this Complaint or explained why it should be allowed to use a sign highly similar to the Complainant’s STARWOOD ANIMAL TRANSPORT trade mark in this way.
The Domain Name also appears to be a typosquatting registration differing only by one letter from the Complainant’s url starwoodanimaltransport.com. Typosquatting is also an indication of a lack of rights or a legitimate interests. See Chegg Inc. v. yang qijin, FA1503001610050 (Forum Apr. 23, 2015) (“Users might mistakenly reach Respondent’s resolving website by misspelling Complainant’s mark. Taking advantage of Internet users’ typographical errors, known as typosquatting, demonstrates a respondent’s lack of rights or legitimate interests under Policy ¶ 4(a)(ii).”).
As such the Panelist finds that the Respondent does not have rights or legitimate interests in the Domain Name and that the Complainant has satisfied the second limb of the Policy.
Registration and Use in Bad Faith
The Domain Name seeks to take advantage of the situation where Internet users may make a typographical error. Typosquatting itself is evidence of relevant bad faith registration and use and disruption of the Complainant’s business. See Diners Club int'l Ltd. v. Domain Admin ****** It's all in the name ******, FA 156839 (Forum June 23, 2003) (registering a domain name in the hope that Internet users will mistype the Complainant’s mark and be taken to the Respondent’s site is registration and use in bad faith). Typosquatting also indicates the Respondent had knowledge of the Complainant and its rights. See InfoSpace, Inc. v. Greiner, FA 227653 (Forum Mar. 8, 2004) (“Respondent’s domain name is a simple and popular variation of a trademark commonly used by typosquatters …Such a domain name evidences actual knowledge of the underlying mark prior to the registration of the domain name, and as Respondent failed to submit any evidence to counter this inferrence [sic], Respondent’s actions evidence bad faith registration of the disputed domain name.”).
Further, in the opinion of the Panel the use made of the Domain Name in relation to the Respondent’s site for competing animal transportation services is confusing and disruptive in that visitors to the site might reasonably believe it is connected to or approved by the Complainant as it purports to offer competing animal transportation products under a sign highly similar to the Complainant’s STARWOOD ANIMAL TRANSPORT word mark as a masthead.
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 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).
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 (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 <starwoodanimalstransport.com> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Date: May 18, 2022
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