Rackspace US, Inc. v. Ali Marceiese / None
Claim Number: FA1503001609354
Complainant is Rackspace US, Inc. (“Complainant”), Texas, USA. Respondent is Ali Marceiese / None (“Respondent”), France.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <rackspace.name>, registered with TUCOWS, INC.
The undersigned certifies that he has acted independently and impartially, and, to the best of his knowledge, has no conflict of interests in serving as Panelist in this proceeding.
Terry F. Peppard as Panelist.
Complainant submitted a Complaint to the Forum electronically on March 13, 2015; the Forum received payment on March 13, 2015.
On March 13, 2015, TUCOWS, INC. confirmed by e-mail to the Forum that the <rackspace.name> domain name is registered with TUCOWS, INC. and that Respondent is the current registrant of the name. TUCOWS, INC. has verified that Respondent is bound by the TUCOWS, 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 March 13, 2015, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 2, 2015 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@rackspace.name. Also on March 13, 2015, 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 April 15, 2015, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Terry F. Peppard as sole Panelist in this proceeding.
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 holds a registration for the RACKSPACE trademark, which is on file with the United States Patent and Trademark Office (“USPTO”) (Registry No. 2,510,081, registered Nov. 20, 2001).
Complainant uses the RACKSPACE mark to market its various goods and services, including its public cloud, private cloud, dedicated servers, and a combination of platforms.
Respondent registered the <rackspace.name> domain name on April 8, 2014.
The <rackspace.name> domain name is substantively identical to Complainant’s RACKSPACE mark.
Respondent has not been commonly known by the domain name.
Respondent is not licensed or otherwise permitted by Complainant to use Complainant’s RACKSPACE mark.
Respondent is not using the domain name for a bona fide offering of goods or services or for a legitimate noncommercial or fair use.
The domain name resolves to a website that impersonates Complainant’s official web site.
Respondent uses the domain name to employ deception in order to “phish” for the personal and financial information of Complainant’s Internet user-customers.
Respondent has no rights to or legitimate interests in the domain name.
Respondent’s use of the domain name is an effort to acquire commercial gain by creating confusion among Internet users as to the possibility of an association between the domain name and Complainant.
Respondent knew of Complainant and its rights in the RACKSPACE trademark when it registered the disputed domain name.
Respondent has engaged in bad faith registration and use of the domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
(1) the domain name registered by Respondent is substantively identical, and therefore confusingly similar, to a trademark in which Complainant has rights; and
(2) Respondent has no rights to or legitimate interests in respect of the domain name; and
(3) the same domain name was registered and is being used by Respondent 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:
i. the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
ii. Respondent has no rights or legitimate interests in respect of the domain name; and
iii. 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(e), 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 (Nat. Arb. Forum July 31, 2000) (finding that a respondent’s failure to respond allows all reasonable inferences of fact in the allegations of a UDRP 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 has rights in the RACKSPACE trademark for purposes of Policy ¶ 4(a)(i) by reason of its registration of the mark with a national trademark authority, the USPTO. See Expedia, Inc. v. Tan, FA 991075 (Nat. Arb. Forum June 29, 2007):
As the [Complainant’s] mark is registered with the USPTO, Complainant has met the requirements of Policy ¶ 4(a)(i).
This is true without regard to whether Complainant’s rights in its mark arise from registration of that mark in a jurisdiction (here the United States) other than that in which Respondent resides or does business (here France). See Williams-Sonoma, Inc. v. Fees, FA 937704 (Nat. Arb. Forum Apr. 25, 2007) (finding that it is irrelevant whether a UDRP complainant has registered its trademark in the country of a respondent’s residence).
Turning to the central question posed by Policy ¶ 4(a)(i), we conclude from a review of the record that the <rackspace.name> domain name is substantively identical, and therefore confusingly similar, to Complainant’s RACKSPACE mark. The domain name incorporates the mark in full and merely adds the top-level domain “.name.” This alteration of the mark, made in forming the domain name, does not save it from the realm of identity or confusing similarity under the standards of the Policy. See Daedong-USA, Inc. v. O’Bryan Implement Sales, FA 210302 (Nat. Arb. Forum Dec. 29, 2003):
Respondent's domain name, …, is identical to Complainant's … mark because adding a top-level domain name is irrelevant for purposes of Policy ¶ 4(a)(i).
Under Policy ¶ 4(a)(ii), Complainant must make a prima facie showing that Respondent lacks rights to and legitimate interests in the disputed domain name, whereupon the burden shifts to Respondent to show that it does have such rights or interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (finding that a complainant must make a prima facie case that a respondent lacks rights to and legitimate interests in a disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to that respondent to show that it does have such rights or interests); see also AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006):
Complainant must first make a prima facie showing that Respond-ent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.
Complainant has made out a sufficient prima facie showing under this head of the Policy. Respondent’s failure to respond to the Complaint therefore permits us to infer that Respondent does not have rights to or legitimate interests in the disputed domain name. See Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO Dec. 21, 2000) (finding that a respondent’s failure to respond to a UDRP complaint allows a presumption that a complainant’s allegations are true unless clearly contradicted by the evidence). Nonetheless, we will examine the record before us, in light of the several considerations set out in Policy ¶ 4(c), to deter-mine whether there is in it any basis for concluding that Respondent has rights to or legitimate interests in the disputed domain name which are cognizable under the Policy.
We begin by noting that Complainant asserts that Respondent has not been commonly known by the <rackspace.name> domain name, and that Respondent is not licensed or otherwise permitted by Complainant to use Complainant’s RACKSPACE trademark. Moreover, the pertinent WHOIS information identifies the registrant of the domain name only as “Ali Marceiese,” which does not resemble the domain name. On this record, we conclude that Respondent has not been commonly known by the contested domain name so as to have acquired rights to or legitimate interests in it within the contemplation of Policy ¶ 4(c)(ii). See Braun Corp. v. Loney, FA 699652 (Nat. Arb. Forum July 7, 2006) (concluding that the respondent was not commonly known by disputed domain names, and so failed to show that it had rights to or legitimate interests in them as provided in Policy ¶ 4(c)(ii), where the relevant WHOIS information, as well as all other evidence in the record, gave no indication that that respondent was commonly known by the domain names, and where a UDRP complainant had not authorized that respondent to register a domain name containing its mark).
We next observe that Complainant asserts, without objection from Respondent, that Respondent is not using the <rackspace.name> domain name for a bona fide offering of goods or services or for a legitimate noncommercial or fair use, in that the domain name resolves to a website that impersonates Complainant’s official site. This employment of the domain name is neither a bona fide offering of goods or services under Policies ¶ 4(c)(i) nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See Kmart of Mich., Inc. v. Cone, FA 655014 (Nat. Arb. Forum April 25, 2006) (A panel there finding that a respondent’s attempt to pass itself of as a UDRP complainant was neither a bona fide offering of goods or services under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii) where that respondent used a disputed domain name to present users with a website that was nearly identical to that complainant’s website).
We also note that Complainant alleges, again without objection from Respondent, that Respondent uses the <rackspace.name> domain name to deceive Complainant’s Internet user-customers in order to “phish” for their personal and financial information. This employment of the domain name is additional evidence that Respondent lacks rights to or legitimate interests in a disputed domain name. See Capital One Fin. Corp. v. Howel, FA 289304 (Nat. Arb. Forum Aug. 11, 2004) (concluding that using a contested domain name to redirect Internet users to a website that imitated a UDRP complainant’s credit application website and attempted fraudulently to acquire personal information from that complainant’s clients was not a bona fide offering of goods or services or a legitimate noncommercial or fair use of the domain name which would establish rights to or legitimate interests in the domain name under Policy ¶¶ 4(c)(i) - 4(c) (iii)).
The Panel therefore finds that Complainant has satisfied the requirements of Policy ¶ 4(a)(ii).
We are persuaded by the evidence that Respondent’s use of the disputed <rackspace.name> domain name as alleged in the Complaint, is an effort, for commercial gain, to attract Internet users to Respondent’s resolving web site by creating a likelihood of confusion among Internet users as to the possibility of Complainant’s association with the domain name. Under Policy ¶ 4(b)(iv), this stands as proof of Respondent’s bad faith in the registration and use of the domain name. See, for example, Am. Online, Inc. v. Miles, FA 105890 (Nat. Arb. Forum May 31, 2002):
Respondent is using the domain name at issue to resolve to a website at which Complainant’s trademarks and logos are prominently displayed. Respondent has done this with full knowledge of Complainant’s business and trademarks. The Panel finds that this conduct is that which is prohibited by Paragraph 4(b)(iv) of the Policy.
We are also convinced by the evidence that Respondent’s employment of the domain name is a fraudulent “phishing” scheme by which it attempts to deceive consumers into yielding up their personal and financial information. This too is proof of Respondent’s bad faith in the registration and use of the domain name. See Hess Corp. v. GR, FA 770909 (Nat. Arb. Forum Sept. 19, 2006) (finding, under Policy ¶ 4(a)(iii), that a respondent demonstrated bad faith registration and use of a domain name where it attempted to employ that domain name to acquire the personal and financial information of Internet users).
Finally, under this head of the Complaint, it is plain from the record before us that Respondent knew of Complainant and its rights in the RACKSPACE trademark when it registered the <rackspace.name> domain name. This is itself a demonstration of Respondent’s bad faith in the registration of the domain name. See Deep Foods, Inc. v. Jamruke, LLC, FA 648190 (Nat. Arb. Forum Apr. 10, 2006) (finding that, where the proven circumstances indicate that a respondent knew of a UDRP complainant’s mark when it registered a contested domain name which is confusingly similar to that mark, bad faith registration of the domain name can be found).
Complainant having established all three elements required to be proven under the ICANN Policy, the Panel concludes that the relief requested must be, and it is, hereby, GRANTED.
Accordingly, it is Ordered that the <rackspace.name> domain name be TRANSFERRED forthwith from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: April 15, 2015
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