United Parcel Service of America, Inc. v. Jamie Hans
Claim Number: FA1901001826973
Complainant is United Parcel Service of America, Inc. ("Complainant"), represented by Sabina A. Vayner of Greenberg Traurig, LLP, Georgia, USA. Respondent is Jamie Hans ("Respondent"), Cameroon.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain names at issue are <ups-courierservices.com> and <upsexpresscouriers.com>, registered with NameCheap, Inc.
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.
David E. Sorkin as Panelist.
Complainant submitted a Complaint to the Forum electronically on January 25, 2019; the Forum received payment on January 25, 2019.
On January 25, 2019, NameCheap, Inc. confirmed by email to the Forum that the <ups-courierservices.com> and <upsexpresscouriers.com> domain names are registered with NameCheap, Inc. and that Respondent is the current registrant of the names. NameCheap, Inc. has verified that Respondent is bound by the NameCheap, 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 January 29, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 19, 2019 by which Respondent could file a Response to the Complaint, via email to all entities and persons listed on Respondent's registration as technical, administrative, and billing contacts, and to postmaster@ups-courierservices.com, postmaster@upsexpresscouriers.com. Also on January 29, 2019, the Written Notice of the Complaint, notifying Respondent of the email 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 February 22, 2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed David E. Sorkin 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 is among the world's largest logistics, transportation, shipping, and delivery companies. Complainant has used the UPS mark continuously in connection with these services since 1927, and it is consistently ranked as one of the top global brands. Complainant uses the UPS mark both standing alone and accompanied by a stylized shield logo. The mark is the subject of various U.S. trademark registrations, and Complainant also claims common law rights in the mark.
Respondent registered the disputed domain names <ups-courierservices.com> and <upsexpresscouriers.com> in September and November 2018, respectively, in both instances using a privacy registration service. The domain names are being used for identical websites that mimic the look and feel of Complainant's own website. The websites display Complainant's mark and logo, incorporate photographs and videos of Complainant's services and products, and purport to offer shipping and logistics services. Complainant states that Respondent is using the disputed domain names to impersonate Complainant and likely to engage in phishing attempts and other fraudulent activity.
Complainant contends on the above grounds that the disputed domain names <ups-courierservices.com> and <upsexpresscouriers.com> are confusingly similar to its UPS mark; that Respondent lacks rights or legitimate interests in the disputed domain names; and that the disputed domain names were registered and are being used in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that each of the disputed domain names is confusingly similar to a mark in which Complainant has rights; that Respondent lacks rights or legitimate interests in respect of the disputed domain names; and that the disputed domain names were registered and are 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 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 Management, 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.").
Each of the disputed domain names <ups-courierservices.com> and <upsexpresscouriers.com> incorporates Complainant's registered UPS trademark, adding the generic terms "courier[s]" and "services" or "express," all of which are relate to aspects of Complainant's business, and appending the ".com" top-level domain. These additions do not substantially diminish the similarity between the domain names and Complainant's mark. See, e.g., United Parcel Service of America, Inc. v. Happy Good, FA 1789625 (Forum June 27, 2018) (finding <ups-trackings.com> confusingly similar to UPS); United States Postal Service v. Kehinde Okunola / Genuine ICT Centre, FA 1785420 (Forum June 6, 2018) (finding <uspscouriers.com> confusingly similar to USPS); United Parcel Service of America, Inc. v. Shipping Administration, D2002-1162 (WIPO Feb. 17, 2003) (finding <upsovernight.com> and <upspackages.com> confusingly similar to UPS). Accordingly, the Panel considers both of the disputed domain names to be confusingly similar to Complainant's registered mark.
Under the Policy, the Complainant must first make a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain names, and then the burden shifts to the Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Productions, Inc. v. Entertainment Commentaries, FA 741828 (Forum Aug. 18, 2006).
The disputed domain names incorporate Complainant's registered mark without authorization, and they are being used to impersonate Complainant, likely for the purpose of phishing schemes or other fraudulent purposes. Such use does not give rise to rights or legitimate interests under the Policy. See, e.g., Lockheed Martin Corp. v. J.Pradeep Kumar / Lockheed India, FA 1794125 (Forum July 30, 2018) (finding lack of rights or interests in similar circumstances).
Complainant has made a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain names, and Respondent has failed to come forward with any evidence of such rights or interests. Accordingly, the Panel finds that Complainant has sustained its burden of proving that Respondent lacks rights or legitimate interests in respect of the disputed domain names.
Finally, Complainant must show that the disputed domain names were registered and are being used in bad faith. Under paragraph 4(b)(iii) of the Policy, bad faith may be shown by evidence that Respondent registered a domain name "primarily for the purpose of disrupting the business of a competitor." Under paragraph 4(b)(iv), bad faith may be shown by evidence that "by using the domain name, [Respondent] intentionally attempted to attract, for commercial gain, Internet users to [Respondent's] web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of [Respondent's] web site or location or of a product or service on [Respondent's] web site or location."
Respondent registered two domain names that combine Complainant's well-known mark with generic terms relating to Complainant's business, and is using them to impersonate Complainant, presumably for fraudulent purposes. Such conduct is indicative of bad faith registration and use under the Policy. See, e.g., Lockheed Martin Corp., supra (finding bad faith under similar circumstances). The Panel so finds.
Having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <ups-courierservices.com> and <upsexpresscouriers.com> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: February 25, 2019
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