Walgreen Co. v. karthik devuluri
Claim Number: FA1803001774902
Complainant is Walgreen Co. ("Complainant"), represented by Tamara A. Miller, Illinois, USA. Respondent is karthik devuluri ("Respondent"), India.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <walgreensphoto.org>, registered with GoDaddy.com, 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 March 7, 2018; the Forum received payment on March 7, 2018.
On March 8, 2018, GoDaddy.com, LLC confirmed by email to the Forum that the <walgreensphoto.org> 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 March 9, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 29, 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@walgreensphoto.org. Also on March 9, 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 April 2, 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 operates a large chain of drugstores throughout the United States under the WALGREENS name and mark. Complainant has used the WALGREENS mark continuously since 1901, and had sales of over $76 billion in fiscal 2014. Complainant also offers products and services online, including photo prints and related goods. Complainant’s WALGREENS mark is the subject of numerous trademark registrations in the United States and other countries, including India.
The disputed domain name <walgreensphoto.org> was registered by Respondent in May 2017. It is being used for a website that displays Complainant’s WALGREENS mark and logo in the same red script used by Complainant, provides instructions on ordering photo prints through Complainant’s website, and links to pages on Complainant’s site. Respondent’s website also includes advertisements for third parties that offer photo printing services in competition with Complainant, as well as for unrelated goods and services. Complainant states that Respondent has not been licensed or otherwise authorized to use Complainant’s mark, and that Respondent has never been commonly known by the mark or the disputed domain name.
Complainant contends on the above grounds that the disputed domain name is confusingly similar to a mark in which Complainant has rights; that Respondent lacks 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 <walgreensphoto.org> incorporates Complainant's WALGREENS mark, adding the generic term “photo” and the ".org" top-level domain. These additions do not substantially diminish the similarity between the domain name and Complainant's mark. See, e.g., Walgreen Co. v. Chad Overman, FA 1712211 (Forum Feb. 21, 2017) (finding <walgreensoptical.com> and <walgreensvision.com> confusingly similar to WALGREENS); Woolworths Ltd. v. Domain Admin PrivacyProtect.org/Smvs Consultancy Private Ltd., D2010-1046 (WIPO Aug. 25, 2010) (finding <bigwphotos.com> confusingly similar to BIG W). The Panel considers the disputed domain name to be confusingly similar to a mark in which Complainant has rights.
Under the Policy, Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name, and then the burden shifts to Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm't Commentaries, FA 741828 (Forum Aug. 18, 2006).
The disputed domain name incorporates Complainant's mark without authorization, and its only apparent use has been for a website that uses Complainant’s mark and links to Complainant’s website in a manner likely to mislead Internet users into believing that it is associated with Complainant. Such use is unlikely to give rise to rights or legitimate interests. See, e.g., Google LLC v. Satyajeet Tiwari, FA 1770944 (Forum Mar. 8, 2018) (finding lack of rights or legitimate interests where domain name was used for website designed to create appearance of association with complainant); Google LLC v. Tim Sales, FA 1764050 (Forum Jan. 31, 2018) (finding lack of rights or legitimate interests where domain name redirected users to complainant’s website).
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 names were registered and are being 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 registered and is using a domain name obviously intended to create confusion with Complainant. Respondent’s website contributes to and exploits that confusion by displaying advertisements, some of which are for competitors of Complainant. This conduct clearly evinces bad faith registration and use under paragraphs 4(b)(iii) and 4(b)(iv) of the Policy. See, e.g., Google LLC v. Satyajeet Tiwari, supra (finding bad faith under similar circumstances); Woolworths Ltd. v. Domain Admin PrivacyProtect.org/Smvs Consultancy Private Ltd., supra (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 <walgreensphoto.org> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: April 4, 2018
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