T-Mobile USA, Inc. dba MetroPCS v. VERA BAILEY
Claim Number: FA1802001773458
Complainant is T-Mobile USA, Inc. dba MetroPCS (“Complainant”), represented by James F. Struthers of Richard Law Group, Inc., Texas, USA. Respondent is VERA BAILEY (“Respondent”), Mississippi, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <mettropc.com> (the Domain Name’), registered with PDR Ltd. d/b/a PublicDomainRegistry.com.
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.
Dawn Osborne as Panelist.
Complainant submitted a Complaint to the Forum electronically on February 25, 2018; the Forum received payment on February 25, 2018.
On February 27, 2018, PDR Ltd. d/b/a PublicDomainRegistry.com confirmed by e-mail to the Forum that the <mettropc.com> domain name is registered with PDR Ltd. d/b/a PublicDomainRegistry.com and that Respondent is the current registrant of the name. PDR Ltd. d/b/a PublicDomainRegistry.com has verified that Respondent is bound by the PDR Ltd. d/b/a PublicDomainRegistry.com 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 27, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 19, 2018 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@mettropc.com. Also on February 27, 2018, 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 March 22, 2018pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Dawn Osborne 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’s contentions may be summarised as follows:
Complainant is the owner of the trade mark METROPCS, registered, inter alia in the USA. It owns MetroPCS.com.
The Domain Name registered in 2018 is confusingly similar to Complainant’s METROPCS mark, adding an extra letter ‘t’, omitting the ‘s’ and adding the gTLD .com. None of this avoids confusing similarity.
Respondent is not commonly known by the Domain Name and is not affiliated with Complainant in any way.
The Domain Name resolves to a fake MetroPCS online rental mobile electronics store which solicits username and password information. This is not a bona fide offering of goods or services or a legitimate non commercial use. Respondent has no rights or legitimate interests in the Domain Name.
Respondent is displaying Complainant’s logo at the page attached to the Domain Name and uses the false address of a genuine METROPCS store showing actual knowledge of Complainant and its business. Respondent has attempted to commercially benefit unfairly and opportunistically from Complainant’s goodwill and this conduct of diversion shows bad faith use pursuant to Policy 4 (b)(iv), It is also competing and disruptive and falls under Policy 4 (b)(iii).
Typosquatting itself and phishing also constitute bad faith under the Policy.
Giving a false contact address on the website and incomplete information on The Who IS is also an indication of bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant is the owner of the trade mark METROPCS, registered, inter alia in the USA, It owns MetroPCS.com.
The Domain Name has been used to point to a site purporting to be a genuine site of Complainant using its logo and the address of one of its stores.
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 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.”).
Identical or Confusingly Similar
The Domain Name consists of a misspelled version of Complainant's METROPCS mark (which is registered in USA since 2002 for telecommunication services) and the gTLD .com. The Panel agrees that misspellings such as addition or omission of a letter does not distinguish the Domain Name from Complainant's METROPCS trade mark pursuant to the Policy. See Twitch Interactive Inc. v Antonio Teggi, FA 1626528 (Forum Aug 3, 2015) (where an addition ‘c’ was added) and Lockheed Martin Corporation v toyosei maruyama, FA 1620489 (ForumJuly 7, 2015) (where a letter ‘s’ was removed).
The gTLD .com does not serve to distinguish the Domain Name from Complainant’s mark. See Red Hat Inc v Haecke FA 726010 (Forum July 24, 2006) (concluding that the redhat.org domain name is identical to Complainant's red hat mark because the mere addition of the gTLD was insufficient to differentiate the disputed domain name from the mark).
Accordingly, the Panel holds that the Domain Name is confusingly similar for the purpose of the Policy to the METROPCS mark in which Complainant has rights.
As such the Panel holds that Paragraph 4 (a) (i) of the Policy has been satisfied.
Rights or Legitimate Interests
Complainant has not authorised the use of its mark. Respondent has not answered this Complaint and there is no evidence or reason to suggest Respondent is, in fact. commonly known by the Domain Name. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum September 17, 2014) (holding that Respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that Complainant had not licensed or authorized Respondent to use its ALASKA AIRLINES mark).
It is clear from the evidence that Respondent has used the pages attached to the domain name to link to pages apparently competing with Complainant and taking customers’ information. The usage of Complainant’s mark which has a significant reputation in relation to similar services not connected with Complainant is not fair as the page attached to the Domain Name does not make it clear that there is no commercial connection with Complainant. As such it is passing off and cannot amount to the bona fide offering of goods and services or a legitimate commercial or fair use. See Netflix, Inc v Iran Panjul/3Corp Inc, FA 1741976 (Forum Aug 22, 2017)
As such the Panelist finds that Respondent does not have rights or a legitimate interest in the Domain Name and that Complainant has satisfied the second limb of the Policy.
Registration and Use in Bad Faith
The Domain Name seeks to take advantage of the situation where Internet users may make a typographical error. Typosquatting itself is evidence of relevant bad faith registration and use. See Diners Club int'l Ltd. v Domain Admin ****** It's all in the name ******, FA 156839 (Forum June 23, 2003) (registering a domain name in the hope that Internet users will mistype Complainant’s mark and be taken to Respondent’s site is registration and use in bad faith).
Use of Complainant’s logo and an address associated with Complainant also shows actual knowledge of Complainant and its rights on the part of Respondent.
Respondent is using the Domain Name to point to services not associated with Complainant in a disruptive and confusing manner sufficient to satisfy Policy 4 (b)(iii). See LoanDepot.com LLC v Kaolee (Kay) Vang-Thao, FA 17762308 (Forum Jan 9, 2018). Also see Klabzuba Oil & Gas, Inc, v LAKHPAT SINGH BHANDARI, FA 1506001625750 (Forum July 17, 2015) (holding phishing to satisfy Policy 4 (b)(iii).)
Additionally the Panel holds that Respondent has intentionally attempted to attract for commercial gain Internet users to a competing website by creating a likelihood of confusion with Complainant's trade marks as to the source, sponsorship, affiliation or endorsement of the web site under Policy 4 (b)(iv). See Bittrex, Inc v Wuxi Yilian LLC 1760517 (Forum Dec 27, 2017).
As such, the Panel believes that Complainant has made out its case that the Domain Name was registered and used in bad faith and has satisfied the third limb of the Policy under 4(b)(iii) and 4 (b)(iv) and there is no need to consider further grounds of bad faith.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <mettropc.com> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: March 22, 2018
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