Liberty Global Logistics, LLC v. damilola emmanuel / tovary services limited
Claim Number: FA1707001738536
Complainant is Liberty Global Logistics, LLC (“Complainant”), represented by Laura M. Franco of Winston & Strawn LLP, California, U.S.A. Respondent is damilola emmanuel / tovary services limited (“Respondent”), Nigeria.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <libertygloballogistic.com>, 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.
Bruce E. Meyerson as Panelist.
Complainant submitted a Complaint to the Forum electronically on July 5, 2017; the Forum received payment on July 5, 2017.
On July 6, 2017, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <libertygloballogistic.com> 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 ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On July 11, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 31, 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@libertygloballogistic.com. Also on July 11, 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 August 2, 2017, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Bruce E. Meyerson 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. Complainant offers logistics services under the LIBERTY GLOBAL LOGISTICS mark, which it registered with the United States Patent and Trademark Office (USPTO). (Reg. No. 3,460,350, registered July 8, 2008). Respondent’s <libertygloballogistic.com>[1] domain name is confusingly similar to Complainant’s LIBERTY GLOBAL LOGISTICS mark because the domain name contains the mark in its entirety, less the spaces, eliminating the “s” and adding the “.com” generic top-level domain (“gTLD”).
2. Respondent has no rights or legitimate interests in the domain name. Respondent is not commonly known by the domain name. Respondent’s domain name resolves to a website which bears a title and copyright notice indicating that it belongs to Complainant. But Complainant has not authorized Respondent to use its LIBERTY GLOBAL LOGISTICS mark, nor is Respondent affiliated in any way with Complainant.
3. Respondent is not using the domain name for a bona fide offering of goods or services or a legitimate noncommercial fair use. Respondent is either using the domain name to solicit information from Complainant’s potential clients or is using the domain name to engage in direct competition with Complainant.
4. Respondent has registered, and is using, the domain name in bad faith. Respondent had at least constructive knowledge of Complainant’s rights.
5. Furthermore, Respondent is using the domain name to direct consumers to its own products and services which are in direct competition with Complainant’s business. In order to attract customers, Respondent uses the domain name to create confusion among those Internet users searching for Complainant’s services.
6. Finally, Respondent is engaging in typosquatting by using a domain name that differs from Complainant’s mark by one letter.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant holds trademark rights for the LIBERTY GLOBAL LOGISTICS mark. Respondent’s domain name is confusingly similar to Complainant’s LIBERTY GLOBAL LOGISTICS mark. Complainant has established that Respondent lacks rights or legitimate interests in the use of the <libertygloballogistic.com> domain name and that Respondent registered and uses the domain name 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 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.”).
Complainant registered the LIBERTY GLOBAL LOGISTICS mark with the USPTO in 2008 (e.g., Reg. Reg. No. 3,460,350, registered July 8, 2008). Registration of a mark with the USPTO sufficiently establishes the required rights in the mark for purposes of the Policy. 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). Accordingly, the Panel concludes that Complainant has established its rights in the LIBERTY GLOBAL LOGISTICS mark under Policy ¶ 4(a)(i).
Complainant argues that Respondent’s <libertygloballogistic.com> domain name is confusingly similar to Complainant’s LIBERTY GLOBAL LOGISTICS mark because the domain name contains the entirety of Complainant’s mark minus an “s”. Reducing a plural word to the singular cannot distinguish a domain name from a mark. See ShipCarsNow, Inc. v Wet Web Design LLC, FA 1601260 (Forum Feb. 26, 2015) (establishing a confusing similarity between the <shipcarnow.com> domain name and the SHIPCARSNOW mark because the domain name simply removes the letter “s”). Further, the addition of the generic top-level domain name, “.com”, is irrelevant to a Policy ¶ 4(a)(i) analysis. See Rollerblade, Inc. v. McCrady, D2000-0429 (WIPO June 25, 2000) (finding that the top level of the domain name such as “.net” or “.com” does not affect the domain name for the purpose of determining whether it is identical or confusingly similar). Therefore, the Panel finds that Respondent’s <libertygloballogistic.com> domain name is confusingly similar to Complainant’s mark.
The Panel finds Complainant has satisfied Policy ¶ 4(a)(i).
Complainant alleges that Respondent holds no rights or legitimate interests in the <libertygloballogistic.com> domain name. This allegation must be supported with a prima facie showing by Complainant under Policy ¶ 4(a)(ii). After a complainant successfully makes a prima facie case, a respondent is faced with the burden of proving it does have rights or legitimate interests in the domain name. In Swedish Match UK Ltd. v. Admin, Domain, FA 873137 (Forum Feb. 13, 2007), the panel held that when a complainant produces a prima facie case, the burden of proof then shifts to the respondent to demonstrate its rights or legitimate interests in the domain name under Policy ¶ 4(c); see also Compagnie Generale des Matieres Nucleaires v. Greenpeace Int’l, D2001-0376 (WIPO May 14, 2001) (“For the purposes of this sub paragraph, however, it is sufficient for the Complainant to show a prima facie case and the burden of proof is then shifted on to the shoulders of Respondent. In those circumstances, the common approach is for respondents to seek to bring themselves within one of the examples of paragraph 4(c) or put forward some other reason why they can fairly be said to have a relevant right or legitimate interests in respect of the domain name in question.”). The Panel holds that Complainant has made a prima facie case.
Complainant argues that Respondent has no rights or legitimate interests in the <libertygloballogistic.com> domain name as required by Policy ¶ 4(a)(ii). The record reflects that the Complainant has neither authorized nor licensed Respondent’s use of the LIBERTY GLOBAL LOGISTICS mark. Moreover, when a respondent fails to submit a response, panels may look to the WHOIS records to establish the lack of affiliation between a registrant and a domain name. See Guardair Corporation v. Pablo Palermo, FA1407001571060 (Forum Aug. 28, 2014) (holding that the respondent was not commonly known by the <guardair.com> domain name according to Policy ¶ 4(c)(ii), as the WHOIS information lists “Pablo Palermo” as registrant of the disputed domain name). The WHOIS information concerning <libertygloballogistic.com> identifies “damilola emmanuel” as the registrant, which provides no evidence that Respondent is commonly known by the domain name. Thus, the Panel concludes that Respondent is not commonly known by the <libertygloballogistic.com> domain name pursuant to Policy ¶ 4(c)(ii).
Complainant has offered evidence of screenshots of Respondent’s website, which show that Respondent is using the <libertygloballogistic.com> domain name to offer competing services and to encourage Internet users to proffer personal contact information. Thus, the record supports Complainant’s contention that Respondent is either using the <libertygloballogistic.com> domain name to solicit information from Complainant’s potential clients or is using the domain name to engage in direct competition with Complainant. Using a domain name which includes Complainant’s mark to compete with Complainant is not a bona fide offering of goods or services or a legitimate noncommercial or fair use. See General Motors LLC v. MIKE LEE, FA 1659965 (Forum Mar. 10, 2016) (finding that “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).”). Similarly, using the domain name to solicit information from unsuspecting Internet users does not constitute a bona fide offering of goods or services or a legitimate noncommercial or fair use. See Victoria’s Secret Stores Brand Mgmt., Inc. v. egyGossip.com, FA 1288062 (Forum Nov. 20, 2009) (finding that Respondent lacked rights and legitimate interests where the disputed domain name was used to solicit the completion of a survey by Internet users). Therefore, the Panel finds that Respondent is not using the <libertygloballogistic.com> domain name for a bona fide offering of goods or services or a legitimate noncommercial or fair use.
The Panel finds Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant argues that Respondent is using the <libertygloballogistic.com> domain name to direct consumers to its own products and services, which are in direct competition with Complainant’s business. The record supports this contention and constitutes bad faith. See Fitness International, LLC v. ALISTAIR SWODECK / VICTOR AND MURRAY, FA1506001623644 (Forum July 9, 2015) (“Respondent uses the at-issue domain name to operate a website that purports to offer health club related services such as fitness experts, fitness models, fitness venues, exercise programs, and personal training, all of which are the exact services offered by Complainant. Doing so causes customer confusion, disrupts Complainant’s business, and demonstrates Respondent’s bad faith registration and use of the domain name pursuant to Policy ¶ 4(b)(iii).”).
Because Respondent has incorporated Complainant’s mark identically (with the exception of an “s”) in Respondent’s domain name, the Panel concludes Respondent had actual knowledge of Complainant’s mark. See Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum Feb. 6, 2014) (“The Panel notes that although the UDRP does not recognize ‘constructive notice’ as sufficient grounds for finding Policy ¶ 4(a)(iii) bad faith, the Panel here finds actual knowledge through the name used for the domain and the use made of it.”).
Finally, Complainant contends that Respondent is engaged in typosquatting. The Panel agrees. Typosquatting supports a finding of bad faith. See Homer TLC, Inc. v. Artem Ponomarev, FA1506001623825 (Forum July 20, 2015) (“Finally, under this head of the Policy, it is evident that the <homededpot.com> domain name is an instance of typosquatting, which is the deliberate misspelling of the mark of another in a domain name, done to take advantage of common typing errors made by Internet users in entering into a web browser the name of an enterprise with which they would like to do business online. Typosquatting is independent evidence of bad faith in the registration and use of a domain name.”). Incorporating and misspelling a mark is evidence of typosquatting. Id. Respondent’s domain name differs from Complainant’s mark by one letter, and that letter is the difference between the mark being plural or singular. Respondent’s simple misspelling of the mark is likely to lead to Internet users being redirected to Respondent’s website without their knowledge. Therefore, the Panel finds that Respondent has registered, and is using, the <libertygloballogistic.com> domain name in bad faith.
The Panel finds 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 <libertygloballogistic.com> domain name be TRANSFERRED from Respondent to Complainant.
Bruce E. Meyerson, Panelist
Dated: August 4, 2017
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