AOL Inc. v. Hi Techsoft Services
Claim Number: FA1606001681342
Complainant is AOL Inc. (“Complainant”), represented by James R. Davis of Arent Fox LLP, District of Columbia, USA. Respondent is Hi Techsoft Services (“Respondent”), India.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <helpaol.us>, registered with GoDaddy.com, 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.
The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Complainant submitted a Complaint to the Forum electronically on June 27, 2016; the Forum received payment on June 27, 2016.
On June 28, 2016, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <helpaol.us> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, LLC registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with the U.S. Department of Commerce’s usTLD Dispute Resolution Policy (the “Policy”).
On June 29, 2016, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 19, 2016 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@helpaol.us. Also on June 29, 2016, 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 July 22, 2016, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed the Honorable Charles K. McCotter, Jr. (Ret.) 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 usTLD 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 usTLD Policy, usTLD 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 is engaged in the computer service industry. Complainant has registered the AOL mark with governmental entities throughout the world, including the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 1,977,731, registered June 4, 1996), which shows rights in the AOL mark under Policy ¶ 4(a)(i). Respondent’s <helpaol.us> domain name is confusingly similar to Complainant’s AOL mark as the domain name adds the generic/descriptive word “help” suggesting the site is operated by Complainant to provide tech support help services to its customers, and adds the “.us” country-code top-level domain (“ccTLD”).
Respondent does not have any rights or legitimate interests in the <helpaol.us> domain name. Respondent is not commonly known by the disputed domain name. Respondent has passed itself off as AOL to confuse Internet users in an attempt to gain commercially.
Respondent has registered and used the <helpaol.us> domain name in bad faith. Respondent has offered the domain for sale to Complainant, constituting bad faith under Policy ¶ 4(b)(i). Respondent’s passing off behavior shows Policy ¶¶ 4(b)(iii) and (iv) bad faith. Respondent had actual knowledge of the AOL mark when registering and subsequently using the disputed domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant, AOL Inc., is engaged in the computer service industry. Complainant has rights in the AOL mark through registration with governmental entities throughout the world, including the USPTO (e.g., Reg. No. 1,977,731, registered June 4, 1996). Respondent’s <helpaol.us> domain name is confusingly similar to Complainant’s AOL mark.
Respondent, Hi Techsoft Services, registered the <helpaol.us> domain name on May 7, 2016.
Respondent does not have any rights or legitimate interests in the <helpaol.us> domain name. Respondent is not commonly known by the disputed domain name. Respondent has passed itself off as AOL to confuse Internet users in an attempt to gain commercially.
Respondent has registered and used the <helpaol.us> domain name in bad faith. Respondent has offered the domain for sale to Complainant, constituting bad faith under Policy ¶ 4(b)(i). Respondent’s passing off behavior shows Policy ¶¶ 4(b)(iii) and (iv) bad faith. Respondent had actual knowledge of the AOL mark when registering and subsequently using the disputed domain name.
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.
Given the similarity between the Uniform Domain Name Dispute Resolution Policy (“UDRP”) and the usTLD Policy, the Panel will draw upon UDRP precedent as applicable in rendering its decision.
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 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 (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 has rights in the AOL mark under Policy ¶ 4(a)(i) through registration with governmental entities throughout the world, including the USPTO. See Haas Automation, Inc. v. Jim Fraser, FA 1627211 (Forum Aug. 4, 2015) (finding that Complainant’s USPTO registrations for the HAAS mark sufficiently demonstrate its rights in the mark under Policy ¶ 4(a)(i).).
Respondent’s <helpaol.us> domain name is confusingly similar to the AOL mark under Policy ¶ 4(a)(i). Respondent’s <helpaol.us> domain name adds the generic/descriptive word “help” and adds the “.us” ccTLD.
Respondent does not have any rights or legitimate interests in the <helpaol.us> domain name. Respondent is not commonly known by the disputed domain name. The WHOIS information lists Hi Techsoft Services as registrant. Complainant has not authorized Respondent to use its AOL mark. See Reese v. Morgan, FA 917029 (Forum Apr. 5, 2007) (concluding that the respondent was not commonly known by the <lilpunk.com> domain name as there was no evidence in the record showing that the respondent was commonly known by that domain name, including the WHOIS information as well as the complainant’s assertion that it did not authorize or license the respondent’s use of its mark in a domain name).
Respondent is not making a bona fide offering of goods or services of the <helpaol.us> domain name, or a legitimate noncommercial or fair use, under Policy ¶¶ 4(c)(ii) and (iv), respectively. The disputed domain name resolves to a page which passes itself off as AOL Technical Support and AOL Help to confuse Internet users in an attempt to gain commercially. The site makes prominent use of AOL’s name, trademark, and logo. See Mortgage Research Center LLC v. Miranda, FA 993017 (Forum July 9, 2007) (“Because [the] respondent in this case is also attempting to pass itself off as [the] complainant, presumably for financial gain, the Panel finds the respondent is not using the <mortgageresearchcenter.org> domain name for 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).”).
Respondent has registered and used the <helpaol.us> domain name in bad faith. First, Respondent has offered the domain for sale to Complainant, constituting bad faith under Policy ¶ 4(b)(i). See Bank of Am. Corp. v. Nw. Free Cmty. Access, FA 180704 (Forum Sept. 30, 2003) (“Respondent's general offer of the disputed domain name registration for sale establishes that the domain name was registered in bad faith under Policy ¶ 4(b)(i).”).
Next, Respondent’s passing off behavior shows Policy ¶¶ 4(b)(iii) and (iv) bad faith. Panels have seen such use as bad faith disruption under Policy ¶ 4(b)(iii). See Capital One Financial Corporation v. Chris Cabrera, FA 591389 (Forum Dec. 19, 2005) (finding use of Complainant’s trademark to sell Respondent’s goods and services “is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iii)”). Panels have also seen such use as bad faith under Policy ¶ 4(b)(iv). See Xylem Inc. and Xylem IP Holdings LLC v. YinSi BaoHu YiKaiQi, FA1504001612750 (Forum May 13, 2015) (“The Panel agrees that Respondent’s use of the website to display products similar to Complainant’s, imputes intent to attract Internet users for commercial gain, and finds bad faith per Policy ¶ 4(b)(iv).”). Therefore, Respondent registered and used the disputed domain in bad faith according to Policy ¶¶ 4(b)(iii) and (iv).
Respondent registered the <helpaol.us> domain name with actual knowledge of Complainant's rights in the AOL mark. Therefore, Respondent registered and uses the domain name in bad faith under Policy ¶ 4(a)(iii). See 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).
Complainant having established all three elements required under the usTLD Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <helpaol.us> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: August 5, 2016
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