Teton Outfitters, LLC v. Isabel Paramo Barrera
Claim Number: FA1802001770434
Complainant is Teton Outfitters, LLC (“Complainant”), represented by William Schultz of Merchant & Gould, P.C., Minnesota, USA. Respondent is Isabel Paramo Barrera (“Respondent”), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <ride5o9.com>, registered with NameSilo, 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.
David E. Sorkin as Panelist.
Complainant submitted a Complaint to the Forum electronically on February 5, 2018; the Forum received payment on February 5, 2018.
On February 5, 2018, NameSilo, LLC confirmed by email to the Forum that the <ride5o9.com> domain name is registered with NameSilo, LLC and that Respondent is the current registrant of the name. NameSilo, LLC has verified that Respondent is bound by the NameSilo, 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 February 5, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 26, 2018 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@ride5o9.com. Also on February 5, 2018, 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 March 1, 2018, 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 name be transferred from Respondent to Complainant.
A. Complainant
Complainant manufactures apparel, protective headgear, and outerwear for use in connection with snow sports such as riding snowmobiles. Complainant and its predecessor in interest have used the 509 mark in connection with this business since at least as early as 2005. Complainant uses the 509 mark and the phrase RIDE 509 in its marketing and promotional materials. Complainant owns and uses various domain names that incorporate the 509 mark, including <ride509.com>. Complainant asserts that the 509 mark is distinctive and well known.
Respondent registered the disputed domain name <ride5o9.com> in November 2017. The website associated with the disputed domain name contains no content. Complainant states that Respondent has no trademark rights nor any other right or legitimate interest in the domain name or the 509 mark, and that Complainant has not authorized or licensed Respondent to use the mark. Complainant accuses Respondent of using the disputed domain name in connection with a phishing scheme. Complainant provides copies of email messages sent to one of Complainant’s vendors, apparently by Respondent, using the domain name to impersonate one of Complainant’s representatives. The messages request that the vendor direct a payment intended for Complainant to a bank account presumably controlled by Respondent.
Complainant contends on the above grounds that the disputed domain name <ride5o9.com> is confusingly similar to a mark in which Complainant has rights; that Respondent has no rights or legitimate interests in the disputed domain name; and that the disputed domain name was registered and is being used in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that the disputed domain name is confusingly similar to a mark in which Complainant has rights; that Respondent lacks rights or legitimate interests in respect of the disputed domain name; and that the disputed domain name was registered and is 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 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 <ride5o9.com> incorporates Complainant's registered mark 509, substituting the letter “o” for the numeral “0” (zero), and adds the generic term “ride” (which relates to Complainant’s products) and the “.com” top-level domain. These alterations do not substantially diminish the similarity between the domain name and Complainant's mark. See, e.g., United Parcel Service of America Inc. v. Gary Selesko, M&B Relocation & Referral, LLC, D2013-1555 (WIPO Oct. 25, 2013) (finding <driveups.com> confusingly similar to UPS); Singapore Press Holdings Ltd. v. Leong Meng Yew, D2009-1080 (WIPO Nov. 6, 2009) (finding <st7o1.com> confusingly similar to ST701). The Panel considers the disputed domain name to be confusingly similar to a mark in which Complainant has rights.
Under the Policy, the Complainant must first make a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain name, and then the burden shifts to the Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm't Commentaries, FA 741828 (ForumAug. 18, 2006).
The disputed domain name incorporates Complainant's mark and corresponds to a domain name used by Complainant, substituting the letter "o" for the numeral “0" -- an obvious case of typosquatting. The sole apparent use of the disputed domain name has been to impersonate Complainant in connection with a fraudulent scheme. Complainant has made a prima facie case that Respondent lacks rights and legitimate interests in the domain name, 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 name.
Finally, Complainant must show that the disputed domain name was registered and has been used in bad faith. Under paragraph 4(b)(iii) of the Policy, bad faith may be shown by evidence that Respondent registered the disputed 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's registration of a domain name obviously intended to create confusion with Complainant, together with its use of that domain name to impersonate Complainant in connection with a fraudulent scheme, is indicative of bad faith under the Policy. See, e.g., Quicken Loans Inc. v. Cimpress Schweiz GmbH, FA 1730676 (Forum June 7, 2017) (finding bad faith registration and use under similar circumstances); Illumina, Inc. v. Robert Chave, FA 1717634 (Forum Mar. 20, 2017) (same). The Panel finds that the disputed domain name was registered and is being used in bad faith.
Having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <ride5o9.com> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: March 3, 2018
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