Gentle Giant Moving Company, Inc. v. Shay Levi
Claim Number: FA1708001746979
Complainant is Gentle Giant Moving Company, Inc (“Complainant”), represented by Lucy D. Lovrien of Lucy D. Lovrien, Attorney at Law, Massachusetts, USA. Respondent is Shay Levi (“Respondent”), Colorado, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <gentlegiantservices.com>, registered with Godaddy.Com, Llc.
The undersigned certifies that he or 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.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on August 30, 2017; the Forum received payment on August 30, 2017.
On September 01, 2017, Godaddy.Com, Llc confirmed by e-mail to the Forum that the <gentlegiantservices.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 September 7, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 27, 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@gentlegiantservices.com. Also on September 7, 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 September 29, 2017, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Richard Hill 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 states that it uses the GENTLE GIANT mark to provide and market its packing and moving related services. Complainant has rights in the mark based upon registration in the United States in 2009.
According to Complainant, the disputed domain name is confusingly similar to its mark, as it contains the mark in its entirety—less the space—and merely adds the generic or descriptive term “services” and the generic top level domain (“gTLD”) “.com.”
Complainant alleges that Respondent does not have rights or legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name and Complainant has not granted respondent permission or license to use the GENTLE GIANT mark for any purpose. Respondent is not using the disputed domain name to make a bona fide offering of goods or services or for a legitimate non-commercial or fair use. Rather, Respondent uses the disputed domain name to offer services that compete directly with Complainant’s business.
Further, says Complainant, Respondent has registered and used the disputed domain name in bad faith. Respondent uses the disputed domain name to disrupt Complainant’s business by attempting to attract, for commercial gain, Internet users to Respondent’s web site by creating a likelihood of confusion with Complainant’s marks as to the source, sponsorship, affiliation, or endorsement of Respondent’s website.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns the mark GENTLE GIANT and uses it to market moving services.
Complainant’s rights in its marks date back to 2009.
The disputed domain name was registered in 2016.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
The disputed domain name resolves to a web site that displays Complainant’s GENTLE GIANT mark and offers the same services offered by Complainant.
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.”).
The disputed domain name is confusingly similar to the Complainant’s GENTLE GIANT mark as it contains the mark in its entirety—less the space—and adds the generic term “services” and the gTLD “.com.” These additions are not sufficient to avoid a finding of confusing similarity. See Microsoft Corporation v. Thong Tran Thanh, FA 1653187 (Forum Jan. 21, 2016) (determining that confusing similarity exists where [a disputed domain name] contains Complainant’s entire mark and differs only by the addition of a generic or descriptive phrase and top-level domain, the differences between the domain name and its contained trademark are insufficient to differentiate one from the other for the purposes of the Policy.); see also Health Republic Insurance Company v. Gustavo Winchester, FA 1622089 (Forum July 7, 2015) (finding, “Domain name syntax requires TLDs. Domain name syntax prohibits spaces. Therefore, omitted spacing and adding a TLD must be ignored when performing a Policy ¶4(a)(i) analysis.”). Accordingly, the Panel finds that the disputed domain name does not contain changes that would sufficiently distinguish it from the GENTLE GIANT mark per Policy ¶ 4(a)(i).
Complainant has not authorized Respondent to use the GENTLE GIANT mark in any way. Respondent is not commonly known by the disputed domain name. Where a response is lacking, WHOIS information can support a finding that a respondent is not commonly known by the disputed domain name. 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.). The WHOIS information of record identifies Respondent as “Shay Levi”. The Panel therefore finds under Policy ¶ 4(c)(ii) that Respondent has not been commonly known by the disputed domain name.
Further, Respondent’s lack of rights or legitimate interests in the disputed domain name is evinced by its failure to use the name for bona fide offering of goods or services or legitimate noncommercial or fair use. On the contrary, the website resolving from the disputed domain name competes directly with Complainant’s business: Respondent uses Complainant’s GENTLE GIANT mark on Respondent’s website while offering visitors information about ordering and paying for packing, moving and storage services—the same services offered by Complainant under the GENTLE GIANT mark. Panels have found that the use of a domain name to sell products and/or services that compete directly with a complainant’s business does not constitute a bona fide offerings of goods or services or a legitimate noncommercial or fair use pursuant Policy ¶¶ (c)(i) & (iii). See Upwork Global Inc. v. Shoaib Malik, FA 1654759 (Forum Feb. 3, 2016) (finding that Complainant provides freelance talent services, and that Respondent competes with Complainant by promoting freelance talent services through the disputed domain’s resolving webpage, which is neither a bona fide offering of goods or services, nor is it a legitimate noncommercial or fair use). Therefore, the Panel finds that does not have rights or legitimate interests in the disputed domain name per Policy ¶¶ 4(c)(i) or (iii).
Respondent (who did not reply to Complainant’s contentions) has not presented any plausible explanation for its use of Complainant’s mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain names.
Indeed, as already noted, Respondent is attempting to attract, for commercial gain, Internet users to its website, by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, and endorsement of the website. Use of a confusingly similar domain name to offer competing services that disrupt a complainant’s business can evince bad faith registration and use per Policy ¶¶ 4(b)(iii) and (iv). 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).”); see also CNA Financial Corporation v. William Thomson / CNA Insurance, FA1401001541484 (Forum Feb. 28, 2014) (finding that the respondent had engaged in bad faith under Policy ¶ 4(b)(iv), by using a confusingly similar domain name to attract Internet users to its own website where it sold competing insurance services). Therefore, the Panel finds that Respondent registered and uses the disputed domain names in bad faith pursuant to Policy ¶¶ 4(b)(iv).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <gentlegiantservices.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: September 30, 2017
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