Agility Public Warehousing Company (KSC) Public v. Vu Anhquang
Claim Number: FA1706001736852
Complainant is Agility Public Warehousing Company (KSC) Public (“Complainant”), represented by Mark J. Diliberti of Foley & Lardner LLP, Wisconsin, USA. Respondent is Vu Anhquang (“Respondent”), Thailand.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <agilityshipping.net> and <agilityshipping.org>, registered with GoDaddy.com, LLC.
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.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on June 22, 2017; the Forum received payment on June 22, 2017.
On June 22, 2017, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <agilityshipping.net> and <agilityshipping.org> domain names are registered with GoDaddy.com, LLC and that Respondent is the current registrant of the names. 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 ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On June 22, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 12, 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@agilityshipping.net, postmaster@agilityshipping.org. Also on June 22, 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 July 17, 2017, 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 names be transferred from Respondent to Complainant.
A. Complainant
Complainant states that it is one of the world’s largest integrated logistics providers. Since at least as early as 1979, Agility has provided a broad range of services to businesses, governments, international institutions, and relief agencies worldwide, including supply chain management, logistics, transportation, freight forwarding, warehousing, distribution, customs clearance, inventory management, and related goods and services, all under the trademark AGILITY. Complainant provides its goods and services in more than 100 countries, has more than 500 offices internationally, and employs a staff of more than 20,000. Complainant registered the AGILITY mark in the United States in 2003. Additionally, Complainant registered the AGILITY mark in Singapore in 2005.
According to Complainant, the disputed domain names are confusingly similar to Complainant’s AGILITY mark because they incorporate the mark in its entirety, adding the generic term “shipping” and the “.net” and “.org” generic top level domains (“gTLDs”). Complainant notes that the term “shipping” is representative of one of the service lines Complainant provides. Complainant cites UDRP precedents to support its position.
Complainant alleges that Respondent lacks rights and legitimate interests in the disputed domain names. Respondent is not commonly known by the disputed domain names. Complainant has not authorized or licensed Respondent to use the AGILITY mark in any regard, nor is Respondent affiliated with Complainant. Respondent has not made a bona fide offering of goods or services, or a legitimate or fair use of the domain. The disputed domain names resolve to a webpage that prominently displays the AGILITY mark, offering shipping and transportation services in direct competition with Complainant. Complainant cites UDRP precedents to support its position.
Further, says Complainant, Respondent registered and is using the disputed domain names in bad faith. Respondent has a history of registering domain names that infringe on the marks of third parties, thereby showing a pattern of mark infringement. The disputed domain names attempt to attract internet users to Respondent’s web sites for Respondent’s commercial gain. The domains create confusion regarding the affiliation Respondent has with Complainant. Respondent registered the disputed domain names with at least constructive notice of Complainant and its rights to the AGILITY mark. Complainant cites UDRP precedents to support its position.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has rights in the mark AGILITY dating back to 2003.
The disputed domain name was registered in 2016.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
Respondent uses the disputed domain name to point to a web site that offers services that compete directly with those of 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."
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 disputed domain names are confusingly similar to Complainant’s AGILITY mark because they incorporate the mark in its entirety, adding the generic term “shipping” and the “.net” and “.org” gTLDs. The addition of a generic term and top level domains to a trademark is inconsequential under a Policy ¶ 4(a)(i) analysis. See Morgan Stanley v. Eugene Sykorsky / private person, FA 1651901 (ForumJan. 19, 2016); see also Wiluna Holdings, LLC v. Edna Sherman, FA 1652781 (Forum Jan. 22, 2016). Moreover, Complainant notes that the term “shipping” is representative of one of the service lines Complainant provides. Panels have held that the addition of descriptive terms, particularly terms that pertain to a complainant’s business, do not adequately distinguish a disputed domain name from a complainant’s mark under Policy ¶ 4(a)(i). See Abbott Laboratories v. Miles White, FA 1646590 (Forum Dec. 10, 2015). Thus the Panel finds that the disputed domain names are confusingly similar to Complainant’s AGILITY mark in the sense of the Policy.
Complainant has not authorized or licensed Respondent to use the AGILITY mark in any regard, nor is Respondent affiliated with Complainant. Panels have concluded that a respondent is not commonly known by a disputed domain name where there is no evidence in the record, including the WHOIS information, suggesting that the respondent was commonly known by the disputed domain name. See Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Forum July 17, 2006). The WHOIS information associated with this case identify Respondent as “Vu Anhquang.” Therefore, the Panel finds that Respondent is not commonly known by the disputed domain names.
Further, Respondent has not made a bona fide offering of goods or services, or a legitimate or fair use of the domain. The disputed domain names resolve to a webpage that prominently offers shipping and transportation services in direct competition with Complainant. The “use of a domain to sell products and/or services that compete directly with a complainant’s business does not constitute 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).” General Motors LLC v. MIKE LEE, FA 1659965 (Forum Mar. 10, 2016); see also Coryn Group, Inc. v. Media Insight, FA 198959 (ForumDec. 5, 2003) (finding that the respondent was not using the domain names for a bona fide offering of goods or services nor a legitimate noncommercial or fair use because the respondent used the names to divert Internet users to a website that offered services that competed with those offered by the complainant under its marks); see also Alcon, Inc. v. ARanked, FA 1306493 (Forum Mar. 18, 2010). As such, 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 registration of the disputed domain names. 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 names.
Indeed, as already noted, Respondent uses the disputed domain names in an attempt to attract internet users to Respondent’s web site for Respondent’s commercial gain. The domains create confusion regarding the affiliation Respondent has with Complainant and the resolving web site offers shipping and transportation services in direct competition to Complainant. A respondent’s use of disputed domain names to direct Internet users to a website which competes with the complainant is evidence of bad faith pursuant to Policy ¶ 4(b)(iv)). See e.g., OneWest Bank N.A. v. Matthew Foglia, FA1503001611449 (Forum Apr. 26, 2015). Moreover, Panels have found that bad faith exists where the respondent's use of the domain name at issue to resolves to a website where similar services are offered to Internet users, thereby confusing the user into believing that the complainant is the source of or is sponsoring the services offered at the site. See Identigene, Inc. v. Genetest Labs., D2000-1100 (WIPO Nov. 30, 2000); see also Am. Online, Inc. v. Fu, D2000-1374 (WIPO Dec. 11, 2000). Accordingly, the Panel finds that Respondent violated Policy ¶ 4(b)(iv) by offering identical services as those offered by Complainant.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <agilityshipping.net> and <agilityshipping.org> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: July 17, 2017
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