Disabled American Veterans v. Davindson Gomez
Claim Number: FA2010001915938
Complainant is Disabled American Veterans (“Complainant”), represented by Christel E. Harlacher of Williams Mullen c/o IP Docketing, United States. Respondent is Davindson Gomez (“Respondent”), Colombia.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <davgov.com>, registered with GoDaddy.com, LLC.
The undersigned certifies that 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 October 6, 2020; the Forum received payment on October 6, 2020.
On October 7, 2020, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <davgov.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 October 9, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 29, 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@davgov.com. Also on October 9, 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 November 3, 2020, 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 <davgov.com> domain name is confusingly similar to Complainant’s DAV mark.
2. Respondent does not have any rights or legitimate interests in the <davgov.com> domain name.
3. Respondent registered and uses the <davgov.com> domain name in bad faith.
B. Respondent did not file a Response.
Complainant, Disabled American Veterans, is a federally incorporated veteran services organization. Complainant holds a registration for the DAV mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 2,620,088, registered September 17, 2002).
Respondent registered the <davgov.com> domain name on July 28, 2020, and uses it to host click-through links in promotion of veterans-related websites.
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”).
The Panel finds that Complainant has rights in the DAV mark under Policy ¶ 4(a)(i) based upon registration with the USPTO. See Haas Automation, Inc. v. Jim Fraser, FA 1627211 (Forum Aug. 4, 2015) (finding that Complainant’s USPTO registrations for the HAAS mark sufficiently demonstrate its rights in the mark under Policy ¶ 4(a)(i)).
Respondent’s <davgov.com> domain name incorporates the DAV mark in its entirety, and merely adds the descriptive term “gov” and the “.com” gTLD. These changes are insufficient to distinguish a domain name from a mark under Policy ¶ 4(a)(i). See Bittrex, Inc. v. Sergey Valerievich Kireev / Kireev, FA 1784651 (Forum June 5, 2018) (holding that the domain name consists of the BITTREX mark and adds “the letters ‘btc’ and the gTLD .com which do not distinguish the Domain Name from Complainant’s mark.”). Thus, the Panel finds that Respondent’s <davgov.com> domain name is confusingly similar to Complainant’s DAV 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 Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests”).
Complainant argues that Respondent does not have rights or legitimate interests in the <davgov.com> domain name because Respondent is not commonly known by the disputed domain name. Respondent is not authorized, licensed, or otherwise permitted to use Complainant’s DAV mark. The WHOIS information of record lists the registrant as “Davindson Gornez.” Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name, and thus has no rights under Policy ¶ 4(c)(ii). See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum Sept. 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES 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 also argues that Respondent fails to use the <davgov.com> domain name for a bona fide offering of goods or services or a legitimate noncommercial or fair use and instead hosts click-through links in promotion of closely related websites. The use of a disputed domain name to host commercial hyperlinks is not a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii). See Ferring B.V. v. Shanshan Huang / Melissa Domain Name Services, FA1505001620342 (Forum July 1, 2015) (“Placing unrelated third party links for the benefit of a respondent indicates a lack of a bona fide offering of goods or services, and a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(i) and Policy ¶ 4(c)(iii), respectively.”). Complainant provides screenshots of the website at <davgov.com> showing click-through links. The Panel finds that this use is not a bona fide offering of goods or services or a legitimate noncommercial or fair use, and thus Respondent has no rights under Policy ¶¶ 4(c)(i) or (iii).
The Panel finds that complainant has satisfied Policy ¶ 4(a)(ii).
Complainant argues that Respondent registered and uses the <davgov.com> domain name in bad faith because Respondent creates a likelihood of confusion with Complainant for commercial gain by hosting links to related and competing websites. The use of a confusingly similar domain name to display third-party commercial hyperlinks in the same field as a complainant constitutes evidence of bad faith under Policy ¶¶ 4(b)(iii) and (iv). See Amazon Technologies, Inc. v. Tammy Caffey, FA1408001576228 (Forum Sept. 22, 2014) (“Respondent’s promotion of Complainant’s competitors on the <kindlestore.com> website disrupts Complainant business and demonstrates Respondent’s bad faith under Policy ¶ 4(b)(iii).”); see also T-Mobile USA, Inc. v. utahhealth, FA 697821 (Forum June 7, 2006) (holding that the registration and use of a domain name confusingly similar to a complainant’s mark to direct Internet traffic to a commercial “links page” in order to profit from click-through fees or other revenue sources constitutes bad faith under Policy ¶ 4(b)(iv)). Complainant argues that Respondent benefits from Complainant’s reputation to commercially benefit by hosting links for services that are closely related to those offered by Complainant. Complainant also argues that the likelihood of confusion is enhanced by Respondent’s use of the term “gov” in the domain name to suggest an association with the government. The Panel agrees and finds bad faith registration and use under Policy ¶ 4(b)(iii) and (iv).
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 <davgov.com> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: November 3, 2020
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