Quiet Logistics, Inc. v. bradon petter / sam
Claim Number: FA2207002004685
Complainant is Quiet Logistics, Inc. (“Complainant”), represented by Stephanie H. Bald of Kelly IP, LLP, District of Columbia, USA. Respondent is bradon petter / sam (“Respondent”), New Hampshire, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <quietllogistics.com>, 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 July 18, 2022; the Forum received payment on July 18, 2022.
On July 19, 2022, Google LLC confirmed by e-mail to the Forum that the <quietllogistics.com> domain name is registered with Google LLC and that Respondent is the current registrant of the name. 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 July 20, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 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@quietllogistics.com. Also on July 20, 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 August 11, 2022, 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 name be transferred from Respondent to Complainant.
A. Complainant
Complainant states that, founded in 2009, it is an innovative company that delivers e-commerce fulfillment services using cutting-edge automation and robotics. Complainant offers an array of services including e-commerce fulfillment services for retail and digital brands; omni-channel fulfillment services including warehouse inventory management services and warehousing services in strategically placed areas to reduce transport time and cost; specialized fulfillment, data monitoring, and shipping services for brands; reverse logistics services for returns processing, product restoration, inventory control, and restocking; customized warehouse facility services; and freight services for local, national, and international shipping from multiple facilities across the US. Complainant advertises, promotes, and/or offers its services on its website at <quietlogistics.com>, which it has used since 2009. In 2018, Complainant’s revenues were in excess of $30,000,000. Complainant asserts rights in the QUIET LOGISTICS mark based upon its registration in the United States in 2018.
Complainant alleges that the disputed domain name is confusingly similar to its QUIET LOGISTICS mark because it consists of a misspelling of the mark (the letter “L” is duplicated), with the addition of the generic top-level domain name (“gTLD”) “.com”. Complainant cites UDRP precedents to support its position.
According to Complainant, Respondent does not have rights or legitimate interests in the disputed domain name. Respondent is not licensed or authorized to use Complainant’s QUIET LOGISTICS mark and is not commonly known by the disputed domain name. Respondent does not use the disputed domain name for any bona fide offering of goods or services nor for a legitimate noncommercial or fair use. Instead, Respondent uses the disputed domain name to pass itself off as Complainant in fraudulent emails in furtherance of a phishing scheme. Specifically, Respondent has used the disputed domain name to impersonate Complainant by posing as Complainant’s employees in emails sent from @quietllogistics.com addresses, and has attempted to defraud Complainant by diverting payments to its own bank account. Moreover, Respondent attempted to phish for the Microsoft Office passwords of Complainant’s employees by including links to fake “Microsoft Office” login pages in its fraudulent emails. The fake login pages prompted Complainant’s employees to enter an email address ending with Complainant’s actual email @quietlogistics.com. The resolving website is not active. Respondent engages in typosquatting. Complainant cites UDRP precedents to support its position.
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith. Respondent disrupts Complainant’s business by using the disputed domain name for fraudulent purposes. Respondent attempts to confuse and attract internet users for commercial gain. Respondent engages in typosquatting. Respondent registered the disputed domain name with actual knowledge of Complainant’s rights in the QUIET LOGISTICS mark. Complainant cites UDRP precedents to support its position.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns rights in the mark QUIET LOGISTICS dating back to at least 2018 and uses it provide e-commerce fulfillment services.
The disputed domain name was registered in 2022.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
Respondent uses the disputed domain name to pass itself off as Complainant by sending fraudulent emails posing as Complainant’s employees, and phishes for personal information of Complainant’s employees by directing them, through the fraudulent emails, to a fake login site. That fake login site prompts Complainant’s employees to enter email addresses ending with their actual email addresses.
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 disputed domain name consists of a misspelling of Complainant’s QUIET LOGISTICS mark (the letter “L” is duplicated), with the addition of the generic top-level domain name (“gTLD”) “.com”. Misspelling a mark by adding a letter does not distinguish the disputed domain name from the mark incorporated therein per Policy ¶ 4(a)(i). See OpenTable, Inc. v. Above.com Domain Privacy, FA 1626187 (Forum Aug. 10, 2015 (“Respondent’s <oipentable.com> domain name is confusingly similar to the OPENTABLE mark under Policy ¶ 4(a)(i) because the disputed domain merely adds the letter ‘i’ . . . ”); see also Twitch Interactive, Inc. v. Antonio Teggi, FA 1626528 (Forum Aug. 3, 2015) (finding the <twitcch.tv> domain name confusingly similar to the TWITCH TV trademark because the domain name consisted of a common misspelling of the mark by merely adding the letter “c”). Likewise, the addition of a gTLD is not considered sufficient to differentiate a disputed domain name from a mark. See Longo Brothers Fruit Markets Inc. v. John Obeye / DOMAIN MAY BE FOR SALE, CHECK AFTERNIC.COM, FA 1734634 (Forum July 17, 2017) (“[O]f course it is well established in prior UDRP cases that the addition of a ‘.com’ suffix is irrelevant when determining if a disputed domain name is identical or confusingly similar to a trademark.”). Therefore the Panel finds that the <quietllogistics.com> domain name is confusingly similar to Complainant’s QUIET LOGISTICS mark under Policy ¶ 4(a)(i).
Complainant has not licensed or otherwise authorized Respondent to use its QUIET LOGISTICS mark. Respondent is not commonly known by the disputed domain name: under Policy ¶ 4(c)(ii), WHOIS information may be used to determine whether a respondent is commonly known by the disputed domain name. See State Farm Mutual Automobile Insurance Company v. Dale Anderson, FA1504001613011 (Forum May 21, 2015) (concluding that because the WHOIS record lists “Dale Anderson” as the registrant of the disputed domain name, the respondent was not commonly known by the <statefarmforum.com> domain name pursuant to Policy ¶ 4(c)(ii)). Here, the WHOIS information for the disputed domain name lists the registrant as “bradon petter / sam.” Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii).
Respondent uses the disputed domain name to pass itself off as Complainant by sending fraudulent emails. Specifically, Complainant presents evidence showing that Respondent has used the disputed domain name to impersonate Complainant by posing as Complainant’s employees in emails sent from @quietllogistics.com addresses, and has attempted to defraud Complainant by diverting payments to its own bank account. Moreover, Respondent attempted to phish for the Microsoft Office passwords of Complainant’s employees by including links to fake “Microsoft Office” login pages in its fraudulent emails. The fake login pages prompted Complainant’s employees to enter an email address ending with Complainant’s actual email @quietlogistics.com. This is 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 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.”); see also Emerson Electric Co. v. Adilcon Rocha, FA 1735949 (Forum July 11, 2017) (finding that respondent’s attempt to pass off as complainant through emails does not constitute a bona fide offering of goods or services and, as such, respondent lacked rights or legitimate interests in the disputed domain name). Thus the Panel finds that Respondent does not use the disputed domain name for any bona fide offering of goods or services under Policy ¶ 4(c)(i) nor for a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).
The resolving website is inactive. Failure to make active use of a disputed domain name is 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 CrossFirst Bankshares, Inc. v. Yu-Hsien Huang, FA 1785415 (Forum June 6, 2018) (“Complainant demonstrates that Respondent fails to actively use the disputed domain name as it resolves to an inactive website. Therefore, the Panel finds that Respondent fails to actively use the disputed domain name for a bona fide offering of goods or services or legitimate noncommercial or fair use under Policy ¶ 4(c)(i) or (iii).”). Thus, for this reason also, the Panel finds that Respondent fails to use the disputed domain name to make a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).
In addition, Respondent has engaged in typosquatting by registering a domain name which is a mere misspelling of Complainant’s mark. See Webster Financial Corporation and Webster Bank, National Association v. Zhichao Yang, FA2110001970133 (Forum Nov. 24, 2021) (“Typosquatting is a practice whereby a domain name registrant deliberately introduces typographical errors or misspellings into a domain name hoping that internet users will inadvertently type the malformed string when searching for products or services associated with the target trademark, or will otherwise confuse the misspelled trademark laden domain name with its target trademark, a web address, an email address, or some other reference to the mark holder.”). Typosquatting may be indicative of a respondent lacking rights and legitimate interests in a disputed domain name per Policy ¶ 4(a)(ii). See Webster Financial Corporation and Webster Bank, National Assocation v. Pham Dinh Nhut, FA1502001605819 (Forum Apr. 17, 2015) (“Respondent’s acts of typosquatting provide additional evidence that respondent lacks rights and legitimate interests in the disputed domain names pursuant to Policy ¶ 4(a)(ii).”).
For all the above reasons, the Panel finds that Respondent does not have rights or legitimate interests in the disputed domain name.
Respondent (who did not reply to Complainant’s contentions) 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 name.
Indeed, as already noted, Respondent uses the disputed domain name to disrupt Complainant’s business through fraudulent activity. Such conduct constitutes bad faith under Policy ¶ 4(b)(iii). See Microsoft Corporation v. Terrence Green / Whois Agent / Whois Privacy Protection Service, Inc., FA 1661030 (Forum Apr. 4, 2016) (finding the Respondent’s use of the disputed domain names to send fraudulent emails supported a finding of bad faith registration and use under Policy ¶ 4(b)(iii)); see also Chevron Intellectual Property, LLC v. Jack Brooks, FA 1635967 (Forum Oct. 6, 2015) (finding that Respondent’s use of <chevron-corps.com> to impersonate an executive of Complainant in emails is in opposition to Complainant and is therefore in bad faith under Policy ¶ 4(b)(iii)); see also Qatalyst Partners LP v. Devimore, FA 1393436 (Forum July 13, 2011) (finding that using the disputed domain name as an e-mail address to pass itself off as the complainant in a phishing scheme is evidence of bad faith registration and use). Therefore the Panel finds that Respondent registered and uses the disputed domain name in bad faith per Policy ¶ 4(b)(iii).
Further, also as already noted, asserts that Respondent engages in typosquatting. Typosquatting is indicative of bad faith under Policy ¶ 4(a)(iii). See Cost Plus Management Services, Inc. v. xushuaiwei, FA 1800036 (Forum Sep. 7, 2018) (“Typosquatting itself is evidence of relevant bad faith registration and use.”); see also Under Armour, Inc. v. JEFF RANDALL, FA1410001585022 (Forum Nov. 18, 2014) (finding that the respondent’s <unerarmour.com> domain name constitutes typosquatting of the complainant’s UNDER ARMOUR mark, which is evidence of bad faith pursuant to Policy ¶ 4(a)(iii)). As such, the Panel finds bad faith registration and use under Policy ¶ 4(a)(iii).
Finally, Respondent registered the disputed domain name with actual knowledge of Complainant’s mark: the fake login site referred to in the fraudulent emails prompts Complainant’s employees to enter email addresses ending with their actual email addresses, thus Respondent knew of Complainant’s legitimate website and email addresses. While constructive notice is insufficient to demonstrate bad faith, actual knowledge of a complainant’s rights in a mark prior to registration may be evidence of bad faith per Policy ¶ 4(a)(iii). See Custom Modular Direct LLC v. Custom Modular Homes Inc., FA 1140580 (Forum Apr. 8, 2008) (“There is no place for constructive notice under the Policy.”); see also Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum Feb. 6, 2014) (“The Panel notes that although the UDRP does not recognize ‘constructive notice’ as sufficient grounds for finding Policy ¶ 4(a)(iii) bad faith, the Panel here finds actual knowledge through the name used for the domain and the use made of it.”); see also Univision Comm'cns Inc. v. Norte, FA 1000079 (Forum Aug. 16, 2007) (rejecting the respondent's contention that it did not register the disputed domain name in bad faith since the panel found that the respondent had knowledge of the complainant's rights in the UNIVISION mark when registering the disputed domain name). The Panel finds that Respondent had actual knowledge of Complainant’s rights in the mark prior to Respondent’s registration of the disputed domain name and that this constitutes bad faith under Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <quietllogistics.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: August 11, 2022
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