1-800-Pack-Rat, LLC and Pack-Rat Portable Mini-Storage, LLC v. Pack Rat Moving Company c/o Zachary Bradley
Claim Number: FA1003001312052
Complainant is 1-800-Pack-Rat, LLC and Pack-Rat Portable Mini-Storage,
LLC (“Complainant”), represented by Andrew Friedman, of 1-800-Pack-Rat, LLC
and Pack-Rat Portable Mini-Storage, LLC, Maryland, USA. Respondent is Pack Rat Moving Company c/o Zachary
Bradley (“Respondent”),
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <packratmoving.com>, registered with Register.com, Inc.
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.
Louis E. Condon as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on March 8, 2010.
On March 9, 2010, Register.com, Inc. confirmed by e-mail to the National Arbitration Forum that the <packratmoving.com> domain name is registered with Register.com, Inc. and that Respondent is the current registrant of the name. Register.com, Inc. has verified that Respondent is bound by the Register.com, Inc. registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy").
On March 17, 2010, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 6, 2010 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@packratmoving.com. Also on March 17, 2010, 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 National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On April 14, 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Louis E. Condon as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration 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 a Written Notice, as defined in Rule 1. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the National Arbitration 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 makes the following assertions:
1. Respondent’s <packratmoving.com> domain name is confusingly similar to Complainant’s PACK RAT mark.
2. Respondent does not have any rights or legitimate interests in the <packratmoving.com> domain name.
3. Respondent registered and used the <packratmoving.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, 1-800-Pack-Rat,
LLC and Pack-Rat Portable Mini-Storage, LLC, is a nationwide company offering
self-storage, moving and warehousing services to customers throughout the
Respondent, Pack Rat Moving Company c/o Zachary Bradley, registered the <packratmoving.com> domain name on July 9, 2009. The disputed domain name resolves to a website offering moving services in competition with Complainant.
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."
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(e), 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 and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
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.
Complainant owns federal trademark registrations for the
PACK RAT and related marks with the USPTO (e.g.,
Reg. No. 1,637,144 issued March 5, 1991).
The Panel may find that such a trademark registration serves as
conclusive evidence of Complainant’s rights in the PACK RAT mark for the
purposes of Policy ¶ 4(a)(i). See Microsoft Corp. v. Burkes,
FA 652743 (Nat. Arb. Forum Apr. 17, 2006) (“Complainant has established rights in the
MICROSOFT mark through registration of the mark with the USPTO.”); see also
Complainant alleges that Respondent’s <packratmoving.com> disputed domain
name is confusingly similar to Complainant’s PACK RAT mark because Respondent’s
disputed domain makes only minor changes to Complainant’s mark: the descriptive
term “moving” is added, the space between the words is deleted, and the generic
top-level domain (“gTLD”) “.com” is appended.
The Panel finds that the addition of a descriptive term to Complainant’s
mark is insufficient to distinguish the disputed domain name from Complainant’s
mark for the purposes of Policy ¶ 4(a)(i). See Arthur
Guinness Son & Co. (
The Panel finds Policy ¶ 4(a)(i)
has been satisfied.
Complainant argues that Respondent does not hold rights or legitimate interests in the disputed domain name. The requirements of Policy ¶ 4(a)(ii) state that Complainant must first present a prima facie case against Respondent before the burden to demonstrate rights and legitimate interests shifts to Respondent. Complainant established a prima facie case in these proceedings; Respondent, however, has failed to respond. The Panel therefore finds that Complainant’s allegations are true and that Respondent lacks rights and legitimate interests in the disputed domain name. See Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO Dec. 21, 2000) (finding that failing to respond allows a presumption that the complainant’s allegations are true unless clearly contradicted by the evidence); see also Banco do Brasil S.A. v. Sync Tech., D2000-0727 (WIPO Sept. 1, 2000) (“By its default, Respondent has not contested the allegation . . . that the Respondent lacks any rights or legitimate interests in the domain name. The Panel thus assumes that there was no other reason for the Respondent having registered <bancodobrasil.com> but the presumably known existence of the Complainant’s mark BANCO DO BRASIL”). The Panel elects, however, to consider the evidence presented in light of the Policy ¶ 4(c) factors to determine whether Respondent has any rights and legitimate interests in the disputed domain name.
In support of its assertion that Respondent lacks rights and legitimate interests in the disputed domain name, Complainant argues that Respondent is not commonly known by the disputed domain name. The WHOIS information for the disputed domain name identifies the registrant as “Pack Rat Moving Company” and “Zachary Bradley.” Despite that Respondent appears to be known by the disputed domain name, the Panel finds that Respondent is not commonly known by the disputed domain name since there is no other corroborating evidence provided to support an assertion that Respondent is commonly known by the disputed domain name. The Panel accordingly finds that Respondent lacks rights and legitimate interests in the disputed domain name. See Yoga Works, Inc. v. Arpita, FA 155461 (Nat. Arb. Forum June 17, 2003) (finding that the respondent was not “commonly known by” the <shantiyogaworks.com> domain name despite listing its name as “Shanti Yoga Works” in its WHOIS contact information because there was “no affirmative evidence before the Panel that the respondent was ever ‘commonly known by’ the disputed domain name prior to its registration of the disputed domain name”); see also Gallup, Inc. v. Amish Country Store, FA 96209 (Nat. Arb. Forum Jan. 23, 2001) (finding that the respondent does not have rights in a domain name when the respondent is not known by the mark).
Complainant contends that Respondent is not using the disputed domain name for a bona fide offering of goods or services or a legitimate noncommercial or fair use according to Policy ¶¶ 4(c)(i) or 4(c)(iii). Complainant asserts that Respondent’s disputed domain diverts Internet users to Respondent’s own website, which competes with Complainant by offering the same type of moving services. The Panel finds that Respondent’s efforts to divert Internet users to its own website for profit does not constitute a bona fide offering of goods or services according to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). See Bank of Am. Fork v. Shen, FA 699645 (Nat. Arb. Forum June 11, 2006) (finding that the respondent’s use of a domain name to redirect Internet users to websites unrelated to a complainant’s mark is not a bona fide use under Policy ¶ 4(c)(i)); see also Summit Group, LLC v. LSO, Ltd., FA 758981 (Nat. Arb. Forum Sept. 14, 2006) (finding that the respondent’s use of the complainant’s LIFESTYLE LOUNGE mark to redirect Internet users to respondent’s own website for commercial gain does not constitute either a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii)).
The Panel finds Policy ¶ 4(a)(ii) has been satisfied.
Respondent uses the disputed domain name to redirect Internet users to a site clearly in competition with Complainant. Complainant argues that Respondent includes Complainant’s mark in the disputed domain name in order to mislead Complainant’s customers and create confusion. The Panel finds that Respondent’s use of Complainant’s mark in the disputed domain name disrupts Complainant’s business by directing Internet users potentially seeking Complainant to a competing site. The Panel finds these actions indicate Respondent’s bad faith registration and use pursuant to Policy ¶ 4(b)(iii). See Surface Prot. Indus., Inc. v. Webposters, D2000-1613 (WIPO Feb. 5, 2001) (finding that, given the competitive relationship between the complainant and the respondent, the respondent likely registered the contested domain name with the intent to disrupt the complainant's business and create user confusion); see also DatingDirect.com Ltd. v. Aston, FA 593977 (Nat. Arb. 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).”).
Complainant contends that Respondent is using the disputed domain name to attract customers seeking Complainant to Respondent’s own competing website for commercial gain. The Panel finds that Respondent’s efforts to mislead and redirect Internet users to Respondent’s own site for commercial gain constitutes bad faith registration and use according to Policy ¶ 4(b)(iv). See Velv, LLC v. AAE, FA 677922 (Nat. Arb. Forum May 25, 2006) (finding that the respondent’s use of the <arizonashuttle.net> domain name, which contained the complainant’s ARIZONA SHUTTLE mark, to attract Internet traffic to the respondent’s website offering competing travel services violated Policy ¶ 4(b)(iv)); see also DatingDirect.com Ltd. v. Aston, FA 593977 (Nat. Arb. Forum Dec. 28, 2005) (“the Panel finds the respondent is appropriating the complainant’s mark in a confusingly similar domain name for commercial gain, which is evidence of bad faith registration and use pursuant to Policy ¶4(b)(iv).”).
The Panel finds Policy ¶ 4(a)(iii)
has been satisfied.
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief should be GRANTED.
Accordingly, it is Ordered that the <packratmoving.com> domain name be TRANSFERRED from Respondent to Complainant.
Louis E. Condon, Panelist
Dated: April 23, 2010
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