Garmin Switzerland GmbH v. Aarhan Khan
Claim Number: FA2006001900572
Complainant is Garmin Switzerland GmbH (“Complainant”), represented by Sam Korte of Garmin International, Inc., Kansas, USA. Respondent is Aarhan Khan (“Respondent”), India.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <garmin.support>, registered with Dynadot, 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.
Alan L. Limbury, as Panelist.
Complainant submitted a Complaint to the Forum electronically on June 17, 2020; the Forum received payment on June 17, 2020.
On June 19, 2020, Dynadot, LLC confirmed by e-mail to the Forum that the <garmin.support> domain name is registered with Dynadot, LLC and that Respondent is the current registrant of the name. Dynadot, LLC has verified that Respondent is bound by the Dynadot, 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, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 13, 2020 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@garmin.support. Also on June 22, 2020, 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 16, 2020, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Alan L. Limbury 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
Complainant, Garmin Switzerland GmbH, provides GPS navigation devices and wearable technology. Complainant asserts rights in the GARMIN mark through its registration of the mark with multiple trademark agencies, including the United States Patent and Trademark Office (“USPTO”). Respondent’s <garmin.support> domain name is confusingly similar to Complainant’s mark, as the domain name entirely incorporates the mark and merely appends the “.support” generic top-level domain (“gTLD”).
Respondent lacks rights or legitimate interest in the <garmin.support> domain name. Respondent is not commonly known by the disputed domain name and Complainant has not authorized Respondent’s use of the GARMIN mark. Additionally, Respondent fails to use the disputed domain name in connection to a bona fide offering of goods or services or a legitimate or noncommercial fair use. Rather, Respondent uses the domain name to divert users away from Complainant’s website to a fraudulent or competing webpage
Respondent registered and uses the <garmin.support> domain name in bad faith. Respondent uses the domain name to disrupt Complainant’s business and in furtherance of a fraudulent scheme. Respondent also attempts to divert Complainant’s customers for Respondent’s gain. Finally, Respondent registered the disputed domain name with knowledge of Complainant’s rights in the GARMIN mark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has established all the elements entitling it to relief.
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 set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
Complainant has shown that it has rights in the GARMIN mark through registration of that mark with multiple trademark agencies, including the USPTO (e.g., Reg. No. 2,288,989, registered on October 26, 1999).
Respondent’s <garmin.support> domain name is identical to Complainant’s mark because it consists entirely of that mark and the “.support” gTLD, which may be disregarded for the purposes of this element, although in this case it is relevant to the third element. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Jurisprudential Overview 3.0”) paragraph 1.11.2:
“The practice of disregarding the TLD in determining identity or confusing similarity is applied irrespective of the particular TLD (including with regard to “new gTLDs”); the ordinary meaning ascribed to a particular TLD would not necessarily impact assessment of the first element. The meaning of such TLD may however be relevant to panel assessment of the second and third elements…
… in cases where the TLD corresponds to the complainant’s area of trade so as to signal an abusive intent to confuse Internet users, panels have found this relevant to assessment under the third element.”
Complainant has established this element.
(i) before any notice to Respondent of the dispute, the use by Respondent of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) Respondent (as an individual, business or other organization) has been commonly known by the domain name, even if Respondent has acquired no trademark or service mark rights; or
(iii) Respondent is making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert customers or to tarnish the trademark or service mark at issue.
The domain name was registered on May 21, 2020. On June 16, 2020 it resolved to a website displaying the GARMIN Mark and having the look and feel of Complainant’s website at “www.garmin.com”.
These circumstances, coupled with Complainant’s assertions, are sufficient to constitute a prima facie showing of absence of rights or legitimate interests in respect of the domain name on the part of Respondent. The evidentiary burden therefore shifts to Respondent to show that it does have rights or legitimate interests in the domain name. See Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014). Respondent has made no attempt to do so.
In the circumstances of this case, the Panel finds that Respondent has no rights or legitimate interests in respect of the domain name.
Complainant has established this element.
Given the longstanding fame of Complainant’s GARMIN mark and the use to which the domain name has been put, the Panel finds that, by using the domain name to masquerade as Complainant, Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website or of a product or service on its website.
Accordingly, the Panel finds that Respondent registered and is using the domain name in bad faith.
Complainant has established this element.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <garmin.support> domain name be TRANSFERRED from Respondent to Complainant.
Alan L. Limbury, Panelist
Dated: July 20, 2020
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