LaserShip, Inc. v. James Hermanson/ YOUNG EMU FARMERS
Claim Number: FA1701001714647
Complainant is LaserShip, Inc. (“Complainant”), represented by William P. Dickinson of Williams Mullen, Virginia, USA. Respondent is James Hermanson/ YOUNG EMU FARMERS (“Respondent”), Panama.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <lazaship.com>, registered with eNom, Inc.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to the Forum electronically on January 27, 2017; the Forum received payment on January 27, 2017.
On Jan 31, 2017, eNom, Inc. confirmed by e-mail to the Forum that the <lazaship.com> 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 February 2, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 22, 2017 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@lazaship.com. Also on February 2, 2017, 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 March 6, 2017, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Sandra J. Franklin 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
1. Respondent’s <lazaship.com> domain name is confusingly similar to Complainant’s LASERSHIP mark.
2. Respondent does not have any rights or legitimate interests in the <lazaship.com> domain name.
3. Respondent registered and uses the <lazaship.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant holds a registration for its LASERSHIP mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 3,038,731, registered Jan. 10, 2006), and uses it for its shipping, logistics, and delivery business.
Respondent registered the <lazaship.com> domain name on Apr. 18, 2016, and uses it to pose as Complainant and engage in fraudulent activity.
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 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.”).
The Panel finds that Complainant has established rights in the LASERSHIP mark for the purposes of Policy ¶ 4(a)(i) through its registration with the USPTO. See T-Mobile USA, Inc. dba MetroPCS v. Ryan G Foo / PPA Media Services, FA 1627542 (Forum Aug. 9, 2015) (finding that Complainant has rights in the METROPCS mark through its registration with the United States Patent and Trademark Office.).
Respondent’s <lazaship.com> domain name simply changes the spelling of “laser” in Complainant’s LASERSHIP mark while maintaining a phonetic similarity, and adds the gTLD “.com”. Prior panels have found that these changes do not sufficiently distinguish a domain name from a mark under Policy ¶ 4(a)(i). See Bare Escentuals Beauty, Inc. v. Moniker Privacy Services, FA 1572771 (Forum Sept. 1, 2014) (finding confusing similarity where Respondent’s <bearminerals.com> domain name replaces “BARE” in Complainant’s trademark with its homonym, “BEAR,” and appends the “.com” gTLD.); see also F.R. Burger & Associates, Inc. v. shanshan lin, FA 1623319 (Forum July 9, 2015) (holding, “Respondent’s <frburger.com> domain name is identical to Complainant’s FRBURGER mark because it differs only by the domain name’s addition of the top-level domain name “.com.”). Thus, the Panel finds that Respondent’s <lazaship.com> domain name is confusingly similar to Complainant’s LASERSHIP mark.
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(i).
Once Complainant makes a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), the burden shifts to Respondent to show it does have rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (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 (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 argues that no evidence exists to show that Respondent has ever been known by the disputed domain name prior to its registration, and Complainant has not given Respondent permission to use its LASERSHIP mark. The Panel notes that the WHOIS identifies “James Hermanson / Young Emu Farmers” as the registrant of the <lazaship.com> domain name. Accordingly, the Panel finds that there is no evidence that Respondent is commonly known by the disputed domain name, and thus Respondent lacks rights or legitimate interests in the <lazaship.com> domain name under Policy ¶ 4(c)(ii). See Braun Corp. v. Loney, FA 699652 (Forum July 7, 2006) (concluding that the respondent was not commonly known by the disputed domain names where the WHOIS information, as well as all other information in the record, gave no indication that the respondent was commonly known by the domain names, and the complainant had not authorized the respondent to register a domain name containing its registered mark); see also Navistar International Corporation v. N Rahmany, FA1505001620789 (Forum June 8, 2015) (finding that the respondent was not commonly known by the disputed domain name where the complainant had never authorized the respondent to incorporate its NAVISTAR mark in any domain name registration).
Complainant further alleges that Respondent does not use the disputed domain name for a bona fide offering of goods or services or a legitimate noncommercial or fair use. The Panel notes that the disputed domain name resolves to a website that appears almost identical to Complainant’s. Complainant demonstrates that a consumer contacted Complainant to inform it of the fraudulent activity engaged in by Respondent through its use of <lazaship.com>, namely that Respondent fraudulently receives payments without actually shipping any products. Prior Panels have concluded that passing off as complainant does not constitute a bona fide offering of goods or services. 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).”). The Panel thus finds that Respondent’s fraudulent use of Complainant’s mark in the disputed domain name does not constitute a bona fide offering of goods or services or a legitimate noncommercial or fair use.
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant argues that Respondent registered and uses the <lazaship.com> domain name in bad faith by attempting to commercially benefit by posing as Complainant and engaging in fraudulent activity. Prior Panels have determined that respondents who pose as complainants to commercially benefit through fraudulent activity can evince bad faith. See Capital One Fin. Corp. & Capital One Bank v. Howel, FA 289304 (Forum Aug. 11, 2004) (“The <capitalonebank.biz> domain name is confusingly similar to Complainant’s mark, it is being used to redirect Internet users to a website that imitates Complainant’s credit application website, and it is being used to fraudently [sic] acquire personal information from Complainant’s clients. Respondent’s use of the domain name supports findings of bad faith registration and use pursuant to Policy ¶ 4(a)(iii).”). Complainant alleges that Respondent’s domain name directs users to a site nearly identical to Complainant’s in every aspect, and then solicits payments for similar shipping services as those offered by Complainant. The Panel finds that this use of the disputed domain name constitutes bad faith under Policy ¶ 4(a)(iii).
The Panel finds that Complainant has satisfied 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 <lazaship.com> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: March 7, 2017
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