PSP FRANCHISING LLC v. Christopher Chibueze / Chrisgigo Computer
Claim Number: FA1510001642569
Complainant is PSP FRANCHISING LLC (“Complainant”), represented by Jennifer M. Hetu of Honigman Miller Schwartz and Cohn LLP, Michigan, USA. Respondent is Christopher Chibueze / Chrisgigo Computer (“Respondent”), Nigeria.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <petssuppliesplus.org>, registered with eNom, Inc.
The undersigned certifies he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.
Houston Putnam Lowry, Chartered Arbitrator, as Panelist.
Complainant submitted a Complaint to the Forum electronically on October 15, 2015; the Forum received payment on October 15, 2015.
On October 16, 2015, eNom, Inc. confirmed by e-mail to the Forum that the <petssuppliesplus.org> domain name is registered with eNom, Inc. and that Respondent is the current registrant of the name. eNom, Inc. has verified that Respondent is bound by the eNom, 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 October 20, 2015, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 9, 2015 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@petssuppliesplus.org. Also on October 20, 2015, 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 November 13, 2015, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Houston Putnam Lowry, Chartered Arbitrator, 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 the domain name be transferred from Respondent to Complainant.
A. Complainant
A. Complainant and Its Goods and Services
1. A Well-Known, Booming Business. Complainant is an extremely well-known animal specialty store with locations throughout the U.S. that features a wide-variety of animal products and accessories, including food, housing, bedding, toys, and grooming products, for dogs, cats, birds, fish, reptiles, and other small animals. Complainant opened its first store using the PET SUPPLIES PLUS Mark in 1988, and Complainant first offered franchising services under the PET SUPPLIES PLUS Mark in 1990. Complainant’s business has expanded in recent years to include grooming, as well as training and obedience classes at many locations. Additionally, Complainant hosts adoption events and other special events such as pet vaccination clinics. Complainant’s flagship website, PetSuppliesPlus.com (“Complainant’s Website”), has been in use by Complainant since 1997. Since opening its first store in the United States under the PET SUPPLIES PLUS Mark, Complainant has spent substantial sums of money to promote and advertise the brand. Complainant’s marketing, advertising, and promotion have been successful as demonstrated by the response of consumers. In 2010, Complainant had sales of $549 million dollars, and more recently, in 2015 Complainant’s sales are in excess of $800 million dollars. As of 2015, there are over 315 PET SUPPLIES PLUS stores in 25 states, making PET SUPPLIES PLUS one of the largest retailers of pet foods and supplies in the country.
2. Incredibly Valuable Goodwill. The popularity of the PET SUPPLIES PLUS brand and the resulting consumer recognition is evidenced by Complainant’s continued expansion throughout the U.S. and its strong sales figures. The strong sales figures of the PET SUPPLIES PLUS stores and its continuous growth indicates that that PET SUPPLIES PLUS is a famous trademark and a brand of incredibly valuable goodwill to Complainant.
3. Complainant’s Website. Complainant’s primary website is at www.PetSuppliesPlus.com. Complainant’s Website is comprised of the distinctive and well-known PET SUPPLIES PLUS Mark. Complainant’s Website not only provides consumers with PET SUPPLIES PLUS store locations, but it also provides information about the products and services that Complainant offers at its PET SUPPLIES PLUS stores throughout the U.S., the PET SUPPLIES PLUS monthly flyer and information about email offers, information about franchising opportunities, and information related to animal care generally. The search metric database Alexa.com ranks the PetSuppliesPlus.com site as among the top 17,000 sites in the United States. Complainant’s Website serves as a direct and vital link to its customers. Complainant also owns the domain name PetSuppliesPlus.us, which also includes the distinctive and well-known PET SUPPLIES PLUS Mark. Collectively, the PetSuppliesPlus.com and PetSuppliesPlus.us domain names will are referred to as the “Pet Supplies Plus Domain Names.”
B. Complainant’s Trademarks
4. The PET SUPPLIES PLUS Mark symbolizes the tremendous goodwill associated with Complainant and Complainant’s services. The PET SUPPLIES PLUS Mark is well-known, distinctive, and extremely valuable. The PET SUPPLIES PLUS Mark has been widely promoted among members of the general consuming public. The PET SUPPLIES PLUS Mark exclusively identifies Complainant and its services. Furthermore, due to widespread, continuous, and highly publicized use throughout the United States, the PET SUPPLIES PLUS Mark has become famous and was famous before Respondent registered the Domain Name in 2015.
5. Complainant owns the following U.S. trademark registrations for the PET SUPPLIES PLUS Mark (in word, design, or stylized form):
a. U.S. Reg. No. 1708560 for the mark PET SUPPLIES “PLUS” filed November 8, 1990, and issued August 18, 1992, for use in connection franchising and rendering technical aid and assistance in the establishment and operation of pet merchandise stores and retail discount pet foods and supplies store services;
b. U.S. Reg. No. 1712087 for the mark PET SUPPLIES PLUS filed November 8, 1990, and issued September 1, 1992, for use in connection with franchising and rendering technical aid and assistance in the establishment and operation of pet merchandise stores and retail discount pet foods and supplies store services;
c. U.S. Reg. No. 2190176 for the mark PET SUPPLIES “PLUS” & Design filed April 14, 1995, and issued September 22, 1998, for use in connection with franchising and rendering technical aid and assistance in the establishment and operation of pet merchandise store services and retail pet foods and supplies store services; and
d. U.S. Reg. No. 3135599 for the mark PET SUPPLIES “PLUS” YOUR PET’S FAVORITE STORE filed August 31, 2005, and issued August 29, 2006, for use in connection with retail pet foods and supplies store services; franchising and rendering technical aid and assistance in the establishment and operation of pet merchandise stores.
6. Complainant’s trademark rights in the PET SUPPLIES PLUS Mark, based on its trademark registrations and common law rights acquired through the use of the PET SUPPLIES PLUS Mark, and the corresponding Pet Supplies Plus Domain Names, long predate Respondent’s registration of the Domain Name in 2015.
C. Respondent’s Infringing Activities and Bad Faith Acts
7. Respondent misappropriated Complainant’s goodwill when it registered the Domain Name, which is confusingly similar to Complainant’s PET SUPPLIES PLUS Mark and the Pet Supplies Plus Domain Names. Specifically, the Domain Name is comprised entirely of Complainant’s registered trademark, namely, PET SUPPLIES PLUS, and the Pet Supplies Plus Domain Names, with the only difference being that the Domain Name adds the letter “S” to the term “PET,” and utilizes the “.org” top-level domain. “Making the disputed domain names plural does not sufficiently distinguish them from Complainant’s marks under Policy ¶4(a)(i).” The Elizabeth Taylor Trust, Interplanet Productions Limited and The Elizabeth Taylor Cosmetics Company v. Elizabeth Taylor / info@liztaylorscollection.com, FA1307001512348 (Nat. Arb. Forum Sept. 11, 2013). See also Barnesandnoble.com LLC v. Your One Stop Web Shop, FA 670171 (Nat. Arb. Forum May 3, 2006) (finding that the additions of the letter “s” and generic top-level domains to the disputed <barnesandnobles.info> and <barnesandnobles.biz> domain names failed to avoid the confusing similarity between the domain names and the complainant’s BARNESANDNOBLE.COM mark pursuant to Policy ¶4(a)(i)).
Similarly, in finding the domain <cheapnewportscigarettes.net> confusingly similar to the NEWPORT mark under Policy ¶4(a)(i), the Panel stated, “[P]luralizing a mark is a trivial alteration within a domain name.” Lorillard Licensing Company, LLC v. Liu Fang / Fang Liu, FA1305001500477 (Nat. Arb. Forum June 28, 2013).
Furthermore, the addition of a gTLD is of no consequence to the Policy ¶4(a)(i) analysis. See Isleworth Land Co. v. Lost in Space, SA, FA 117330 (Nat. Arb. Forum Sept. 27, 2002) (“[I]t is a well established principle that generic top-level domains are irrelevant when conducting a Policy ¶4(a)(i) analysis.”).
Accordingly, consumers who encounter the Domain Name are likely to assume that it relates to Complainant and its business.
8. Given the consumer recognition, distinctiveness, and fame of Complainant’s PET SUPPLIES PLUS Mark, there can be no doubt but that Respondent registered the Domain Name to trade upon Complainant’s goodwill and to attract and divert Complainant’s customers for profit. Respondent’s Domain Name consists of the well-known PET SUPPLIES PLUS Mark, and by the time Respondent registered the Domain Name, Complainant’s PET SUPPLIES PLUS Mark had been well-established.
9. Moreover, the website resolving at PETSSUPPLIESPLUS.ORG, (the “Infringing Website”) contains various links to commercial websites that feature pet products, but no other content that would provide any good faith reason for the registration. No bona fide goods and services appear to have been offered on the Infringing Website. This further demonstrates that the Domain Name was intentionally derived from Complainant’s PET SUPPLIES PLUS Mark, rather than representing any unique goodwill or identity of the Respondent.
10. Respondent’s use of the Domain Name with the Infringing Website was intentionally designed to cause a likelihood of confusion with Complainant and its services and to deceive consumers into mistakenly believing that Respondent is authorized, licensed, or sponsored by Complainant, or is otherwise connected, associated, or affiliated with Complainant and/or its PET SUPPLIES PLUS Mark and Complainant’s Website. The Infringing Website does not currently contain anything of substance or any legitimate offering of products or services, and only links to various pet-product related websites, including links to Complainant’s competitors. Moreover, the Domain Name is strikingly similar to the Pet Supplies Plus Domain Names.
11. As evidenced above, Respondent’s misappropriation of the Domain Name has injured and will continue to irreparably injure the reputation and hard-earned goodwill of Complainant and its PET SUPPLIES PLUS Mark. If Respondent is allowed to retain ownership of the infringing Domain Name, Internet users will continue to be confused and deceived, and Complainant’s reputation will be harmed.
D. RESPONDENT HAS NO RIGHTS OR LEGITIMATE INTEREST IN THE DOMAIN NAME
12. As stated above, Respondent is not using, has not used, and/or has not demonstrated an intent to use the Domain Name in connection with a bona fide offering of goods or services. Respondent is not now and never has been commonly known by the Domain Name. Respondent is not making legitimate noncommercial or fair use of the Domain Name, without intending to mislead and divert consumers or to dilute Complainant’s PET SUPPLIES PLUS Mark for commercial gain. The Domain Name is used with the Infringing Website, which merely contains hyperlinks to various commercial websites, including links to Complainant’s competitors’ websites.
13. Respondent uses the Domain Name in connection with its Infringing Website, which features links to the commercial websites of Complainant’s competitors. Respondent does not sell any products, and when Internet users click on the particular product advertised on the Infringing Website, they are redirected to the underlying commercial site. In particular, the Infringing Website includes advertisements and links to pet supply pages at Amazon.com, which is a competitor of Complainant. Respondent likely collects “click-through” or “pay-per-click” profits by directing Internet users to the underlying commercial websites. Such use does not amount to a bona fide offering of goods or services under Policy ¶4(c)(i) or a legitimate noncommercial or fair use of the disputed domain name under Policy ¶4(c)(iii). See Vanguard Trademark Holdings USA LLC v. Server Thoughts, FA1112001421216 (Nat. Arb. Forum February 3, 2012) (holding that the respondent’s use of a domain name used in connection with a website that features links to the websites of the complainant’s competitors, while likely receiving profits in the form of “click-through” associated with the visits of Internet users to the websites resolving from the hosted links, does not amount to a bona fide offering of goods or services under Policy ¶4(c)(i) or a legitimate noncommercial or fair use of the disputed domain name under Policy ¶4(c)(iii)); ALPITOUR S.p.A. v. balata inc, FA FA0701000888649 (Nat. Arb. Forum Feb. 27, 2007) (finding that “using the confusingly similar <viaggidea.com> domain name to operate a website that features links to various commercial websites from which Respondent presumably receives referral fees . . . is neither a bona fide offering of goods or services pursuant to Policy ¶4(c)(i) nor a legitimate non- commercial or fair use pursuant to Policy ¶4(c)(iii).”); and Carey International, Inc. d/b/a Manhattan International Limousine Network Ltd v. Alex Kogan, FA FA0505000486191 (Nat. Arb. Forum July 29, 2005) (holding that a respondent’s use of disputed domain names, which were confusingly similar to the mark of a complainant, to market limousine services competing with the business of that complainant, was not a bona fide offering of goods or services under Policy ¶4(c)(i), where that respondent appropriated the mark in a domain name in order to profit from its use.).
E. RESPONDENT’S BAD FAITH UNDER SECTION 4(B) OF THE UDRP
14. Respondent’s registration and use of the Domain Name meets the bad faith element set forth in Sections 4(b)(iii) and (iv) of the UDRP. Respondent registered a Domain Name comprised entirely of the PET SUPPLIES PLUS Mark, which is a distinct and famous trademark. When coupled, the words PET SUPPLIES PLUS have no meaning other than as a trademark. Respondent uses the Domain Name to divert Internet users to its Infringing Website and away from Complainant’s legitimate website, PetSuppliesPlus.com. Respondent’s use of the Domain Name disrupts Complainant’s business by diverting consumers and such use infringes upon and dilutes Complainant’s PET SUPPLIES PLUS Mark.
15. Respondent’s registration and use of the Domain Name meets the bad faith element set forth in Section 4(b)(i) and (iv) of the UDRP. Specifically, because Respondent has no legitimate interest in the Domain Name and because it is clearly confusingly similar to Complainant’s PET SUPPLIES PLUS Mark and Complainant’s Pet Supplies Plus Domain Names, there can be no explanation other than that Respondent is attempting to highjack the Domain Name for financial gain or intentionally attracting users to the Infringing Website for commercial gain by creating a likelihood of confusion with the PET SUPPLIES PLUS Mark. As mentioned above, Respondent uses the Domain Name in connection with its Infringing Website, which features links to the commercial websites of Complainant’s competitors. Respondent likely collects “click-through” or “pay per click” profits by directing Internet users to the underlying commercial websites. Respondent does not directly sell any of the products it features on the Infringing Website. Respondent references particular products using hyperlinks on the Infringing Website, which go directly to the Amazon.com site. See Provide Gifts, Inc. d/b/a RedEnvelope v. Privacy Ltd. Disclosed Agent for YOLAPT c/o Domain Admin, FA0909001286921 (Nat. Arb. Forum Nov. 9, 2009) (“Respondent has created a substantial likelihood of confusion as to the source and affiliation of the <redenevelope.com> domain name and the corresponding website. Respondent benefits from such a likelihood of confusion, as it receives referral fees for the competitive upscale gifts advertisements that are displayed to the diverted Internet users. The Panel finds this to be adequate evidence of Respondent’s bad faith registration and use pursuant to Policy ¶4(b)(iv).”), and Univ. of Houston Sys. v. Salvia Corp., FA 637920 (Nat. Arb. Forum Mar. 21, 2006) (“Respondent is using the disputed domain name to operate a website which features links to competing and non-competing commercial websites from which Respondent presumably receives referral fees. Such use for Respondent’s own commercial gain is evidence of bad faith registration and use pursuant to Policy ¶4(b)(iv).”).
16. Furthermore, the Infringing Website purports to feature information about “Pets Supplies Plus” locations, but when you click on this section of the website, there is only information about purchasing pet products online, which is not available via the Complainant’s website. Additionally, the Infringing Website contains information about pet stores owned and operated by Complainant’s competitors in the Chicago, Illinois area, where Complainant also has a presence.
17. Lastly, because of the fame of the PET SUPPLIES PLUS Mark, it is virtually impossible to believe that Respondent did not have prior knowledge of Complainant’s rights when it registered the Domain Name. However, even without direct evidence of knowledge, the Panel may find that Respondent had constructive knowledge of Complainant’s marks, because the marks are well known and federally registered, and because Respondent’s use is so transparently opportunistic. See Orange Glo Int’l v. Blume, FA0208000118313 (Nat. Arb. Forum Oct. 4, 2002) (“Complainant’s OXICLEAN mark is listed on the Principal Register of the USPTO, a status that confers constructive notice on those seeking to register or use the mark or any confusingly similar variation thereof”). “[T]here is a legal presumption of bad faith, when Respondent reasonably should have been aware of Complainant’s trademarks, actually or constructively.” Digi Int’l v. DDI Sys., FA0209000124506 (Nat. Arb. Forum Oct. 24, 2002); See also Sea World, Incorporated v. Holix Inc., FA0702000924533 (Nat. Arb. Forum April 19, 2007) (“registration of a domain name containing Complainant’s well-known mark with knowledge of Complainant’s rights is evidence of bad faith registration and use pursuant to Policy ¶4(a)(iii)”); Samsonite Corp. v. Colony Holding, FA0003000094313 (Nat. Arb. Forum April 17, 2000) (finding that evidence of bad faith includes actual or constructive knowledge of a commonly known mark at the time of registration). Accordingly, there is a presumption of bad faith here.
B. Respondent
Respondent failed to submit a Response in this proceeding.
(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.
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 Complainant must prove the following three elements to obtain an order cancelling or transferring a domain name:
(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(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.”).
Complainant claims it has rights in the PET SUPPLIES PLUS mark through its registration with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 1,712,087, registered on September 1, 1992). Registration of a trademark with the USPTO (or a similar governmental authority) sufficiently demonstrates a complainant’s rights in a mark under Policy ¶4(a)(i). See Lockheed Martin Corp. v. Hoffman, FA 874152 (Nat. Arb. Forum Jan. 31, 2007) (finding that the complainant had sufficiently established rights in the SKUNK WORKS mark through its registration of the mark with the USPTO). At this point, Complainant need only demonstrate it has some rights, not that Complainant’s rights are superior to Respondent’s rights. Therefore, Complainant has proven its rights in the PET SUPPLIES PLUS mark under Policy ¶4(a)(i).
Complainant claims Respondent’s <petssuppliesplus.org> domain name is confusingly similar to the PET SUPPLIES PLUS mark because it contains the entire mark, less the spaces between words, with the additions of a letter “s” and the gTLD “.org.” None of these changes sufficient to render a domain name and mark distinguishable. First of all, the omission of spaces in a domain name must be ignored under a Policy ¶4(a)(i) analysis because they are prohibited characters. Next, domain name syntax requires a TLD (whether a gTLD or a ccTLD). This means the TLD must be ignored under a Policy ¶4(a)(i) analysis. Finally, adding the single imbedded letter “s” within the domain name does not adequately distinguish it from Complainant’s fairly long mark. See Am. Int’l Group, Inc. v. Domain Admin. Ltd., FA 1106369 (Nat. Arb. Forum Dec. 31, 2007) (finding that “spaces are impermissible and a generic top-level domain, such as ‘.com,’ ‘.net,’ ‘.biz,’ or ‘.org,’ is required in domain names. Therefore, the panel finds that the disputed domain name [<americangenerallifeinsurance.com>] is confusingly similar to the complainant’s [AMERICAN GENERAL] mark.”); see also Cream Pie Club v. Halford, FA 95235 (Nat. Arb. Forum Aug. 17, 2000) (finding that “the addition of an ‘s’ to the end of the complainant’s mark, ‘Cream Pie’ does not prevent the likelihood of confusion caused by the use of the remaining identical mark. The domain name <creampies.com> is similar in sound, appearance, and connotation”). Respondent’s <petssuppliesplus.org> domain name is confusingly similar to Complainant’s PET SUPPLIES PLUS mark pursuant to Policy ¶4(a)(i).
The Panel finds Policy ¶4(a)(i) satisfied.
Complainant must first make a prima facie case Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶4(a)(ii). Then the burden shifts to Respondent to show it has rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under UDRP ¶4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name); see also AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006) (“Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.”).
Complainant claims Respondent is not commonly known by the <petssuppliesplus.org> domain name because there is no supporting evidence. Initially, the disputed domain name was registered using a privacy service. Once this proceeding was brought, the beneficial owner was revealed. The WHOIS information now lists “Christopher Chibueze” as Registrant. This name bears no obvious relationship to the disputed domain name. Respondent has failed to provide any evidence to indicate he is commonly known by the domain name. When a respondent does not provide evidence of being known by a domain name and there is no obvious connection based upon the WHOIS information, the panel may conclude the respondent is not commonly known by the name under Policy ¶4(c)(ii). See Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Nat. Arb. Forum July 17, 2006) (concluding that the respondent was not commonly known by the <coppertown.com> domain name where there was no evidence in the record, including the WHOIS information, suggesting that the respondent was commonly known by the disputed domain name). Respondent is not commonly known by the <petssuppliesplus.org> domain name under Policy ¶4(c)(ii).
Complainant claims Respondent fails to use the <petssuppliesplus.org> domain name to provide a bona fide offering of goods or services or a legitimate noncommercial or fair use because the resolving website provides links to Complainant’s competitors. Providing competitive links shows a lack of bona fide offering of goods or services or a legitimate noncommercial or fair use pursuant to Policy ¶4(c)(i) and ¶4(c)(iii). See United Servs. Auto. Ass’n v. Savchenko, FA 1105728 (Nat. Arb. Forum Dec. 12, 2007) (“The disputed domain name, <usaa-insurance.net>, currently resolves to a website displaying Complainant’s marks and contains links to Complainant’s competitors. The Panel finds this to be neither a bona fide offering of goods or services pursuant to Policy ¶4(c)(i) nor a legitimate noncommercial or fair use pursuant to Policy ¶4(c)(iii).”). Respondent fails to use the resolving website to provide a bona fide offering of goods or services or a legitimate noncommercial or fair use pursuant to Policy ¶4(c)(i) and ¶4(c)(iii).
Finally, Respondent has acquired no rights by registering the domain name while using a privacy service. Respondent has not publicly associated himself with the disputed domain name in any fashion. Therefore, Respondent has not acquired any rights to the disputed domain name.
The Panel finds Policy ¶4(a)(ii) satisfied.
Complainant claims Respondent uses the <petssuppliesplus.org> domain name to disrupt Complainant’s business operations because the resolving webpage contains links to Complainant’s competitors. Complainant has provided screenshots of Respondent’s web site. Respondent’s web site redirects visitors to Complainant’s competitors, inter alia. Respondent’s web site uses Complainant’s mark in the contents of the web site. Linking to competitors constitutes disruption under Policy ¶4(b)(iii), demonstrating bad faith registration and use. See Univ. of Texas Sys. v. Smith, FA 1195696 (Nat. Arb. Forum July 7, 2008) (finding that using the resolving website to divert Internet users to the complainant’s competitors constituted bad faith registration and use under Policy ¶4(b)(iii)). Respondent registered and uses the <petssuppliesplus.org> domain name in bad faith under Policy ¶4(b)(iii).
Complainant claims Respondent registered and uses the <petssuppliesplus.org> domain name in bad faith because the resolving website appears to have “click through” links to Complainant’s competitors. Certainly Respondent gets a commercial gain from having users click on those links. Using links to redirect Internet users to a complainant’s competitors constitutes bad faith registration and use pursuant to Policy ¶4(b)(iv). See AltaVista Co. v. Krotov, D2000-1091 (WIPO Oct. 25, 2000) (finding bad faith under Policy ¶4(b)(iv) where the respondent’s domain name resolved to a website that offered links to third-party websites that offered services similar to the complainant’s services and merely took advantage of Internet user mistakes). Respondent registered and uses the <petssuppliesplus.org> domain name in bad faith pursuant to Policy ¶4(b)(iv).
Complainant claims Respondent registered the <petssuppliesplus.org> domain name in bad faith because it did so with actual knowledge of Complainant’s rights in the PET SUPPLIES PLUS mark. This seems clear from the contents of the resolving web site. It is “virtually impossible” (to quote Complainant) to believe Respondent did not have prior knowledge of Complainant’s rights. This Panel finds Respondent registered the <petssuppliesplus.org> domain name in bad faith under Policy ¶4(a)(iii).
Finally, Respondent registered the domain name using a privacy service. In the commercial context, this raises the rebuttable presumption of bad faith registration and use. Respondent has not even attempted to rebut this presumption. Therefore, this Panel is willing to find bad faith registration and use on these grounds alone.
The Panel finds Policy ¶4(a)(iii) satisfied.
Having established all three elements required under the ICANN Policy, the Panel concludes relief shall be GRANTED.
Accordingly, it is Ordered the <petssuppliesplus.org> domain name be TRANSFERRED from Respondent to Complainant.
Houston Putnam Lowry, Chartered Arbitrator, Panelist
Dated: Tuesday, November 24, 2015
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