United States Postal Service v. David Olesen
Claim Number: FA1805001788535
Complainant is United States Postal Service (“Complainant”), represented by Jennifer A. Van Kirk of Lewis Roca Rothgerber Christie LLP, Arizona, USA. Respondent is David Olesen (“Respondent”), Arizona, USA.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <informeddeliverycampaigns.com>, <informedvisibilitypostcards.com>, and <informedvisibilitydirectmail.com>, registered with Domain.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.
Kenneth L. Port as Panelist.
Complainant submitted a Complaint to the Forum electronically on May 24, 2018; the Forum received payment on May 24, 2018.
On May 24, 2018, Domain.com, LLC confirmed by e-mail to the Forum that the <informeddeliverycampaigns.com>, <informedvisibilitypostcards.com>, and <informedvisibilitydirectmail.com> domain names are registered with Domain.com, LLC and that Respondent is the current registrant of the names. Domain.com, LLC has verified that Respondent is bound by the Domain.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 May 29, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 18, 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@informeddeliverycampaigns.com, postmaster@informedvisibilitypostcards.com, and postmaster@informedvisibilitydirectmail.com. Also on May 29, 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 June 22, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Kenneth L. Port 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 names be transferred from Respondent to Complainant.
A. Complainant
Complainant is the second oldest department/agency of the United States of America. See Compl. Ex. 4 ¶ 5. Complainant has rights in the INFORMED DELIVERY (e.g., Reg. No. 5,125,923, registered Jan. 17, 2017) and INFORMED VISIBILITY (e.g., Reg. No. 5,068,885, registered Oct. 25, 2016) marks through its trademark registrations with the United States Patent and Trademark Office (“USPTO”). See Compl. Exs. 7 and 8. Respondent’s <informeddeliverycampaigns.com>, <informedvisibilitypostcards.com>, and <informedvisibilitydirectmail.com> domain names are confusingly similar to Complainant’s marks as Respondent merely adds descriptive terms (“campaigns,” “postcards,” “and “direct mail’) and a “.com” gTLD to the marks.
Respondent has no rights or legitimate interests in the <informeddeliverycampaigns.com>, <informedvisibilitypostcards.com>, and <informedvisibilitydirectmail.com> domain names. Respondent is not authorized or licensed to use Complainant’s marks and is not commonly known by the disputed domain names. Additionally, Respondent is not using the disputed domain names in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use. Rather, Respondent is using the disputed domain names’ resolving websites to feature pay-per-click links related to Complainant’s goods and services. Further, Respondent attempts to distribute malware and engage in phishing.
Respondent registered and is using the <informeddeliverycampaigns.com>, <informedvisibilitypostcards.com>, and <informedvisibilitydirectmail.com> domain names in bad faith. Respondent attempts to disrupt Complainant’s business and attract, for commercial gain, users to the disputed domain names which feature pay-per-click links related to Complainant’s business. Furthermore, Respondent attempts to distribute malware and engage in phishing. Finally, Respondent’s use of Complainant’s marks in the disputed domain names suggests “opportunistic bad faith.”
B. Respondent
Respondent failed to submit a Response in this proceeding. The disputed domain names were registered as follows:
|
<informeddeliverycampaigns.com> |
May 27, 2017 |
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<informedvisibilitypostcards.com> |
August 24, 2017 |
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<informedvisibilitydirectmail.com> |
August 24, 2017 |
The Panel finds that the disputed domain names are confusingly similar to Complainant’s trademarks; that Respondent has no rights or legitimate interests in or to the disputed domain names; and that Respondent has engaged in bad faith use and registration of the disputed domain names.
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 Panel finds that the disputed domain names are confusingly similar to Complainant’s trademarks. Complainant has adequately plead its rights and interests in and to these trademarks. Respondent arrives at the disputed domain names by adding descriptive terms (“campaigns,” “postcards,” “and “direct mail’) and a “.com” gTLD to the marks. This is insufficient to distinguish the disputed domain names from Complainant’s trademarks.
As such, the Panel finds that the disputed domain names are confusingly similar to Complainant’s trademarks.
The Panel also finds that Respondent has no rights or legitimate interests in or to the disputed domain names. Respondent has no right, permission or license to register the disputed domain names. Respondent is not commonly known by the disputed domain names. Further, Respondent is not using the disputed domain names in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use. Rather, Respondent apparently is using the disputed domain names’ resolving websites to feature pay-per-click links related to Complainant’s goods and services. Further, Respondent apparently attempts to distribute malware and engage in phishing.
As such, the Panel finds that Respondent has no rights or legitimate interests in or to the disputed domain names.
The Panel also finds that Respondent has engaged in bad faith use and registration of the disputed domain names. Specifically, Complainant contends that Respondent attempts to disrupt Complainant’s business and attract, for commercial gain, users to the disputed domain names by featuring pay-per-click links at the resolving websites. Use of a disputed domain name to feature advertisements and/or hyperlinks for click-through revenue may be evidence of bad faith under Policy ¶¶ 4(b)(iii) and (iv). See Health Republic Insurance Company v. Above.com Legal, FA1506001622088 (Forum July 10, 2015) (“The use of a domain name’s resolving website to host links to competitors of a complainant shows intent to disrupt that complainant’s business, thereby showing bad faith in use and registration under Policy ¶ 4(b)(iii).”); see also 3M Company v. Nguyen Hoang Son / Bussiness and Marketing, FA1408001575815 (Forum Sept. 18, 2014) (finding that the respondent’s use of the disputed domain name to host sponsored advertisements for Amazon, through which the respondent presumably profited, indicated that the respondent had used the disputed domain name in bad faith pursuant to Policy ¶ 4(b)(iv)). Complainant provides screenshots from the disputed domain names which resolve to parked webpages with links to various, third party websites. See Compl. Ex. 3. Consequently, the Panel finds that Respondent’s attempts to attract users for commercial gain demonstrates bad faith per Policy ¶¶ 4(b)(iii) and/or (iv).
Furthermore, Complainant claims that Respondent uses the disputed domain names distribute malware and/or phish for users’ personal information. Distributing malicious software and/or procuring users’ personal information through phishing may support a finding of bad faith under Policy ¶ 4(a)(iii). See eNom, Incorporated v. Muhammad Enoms General delivery / Enoms.com has been registered just few days after Enom.com, therefore could not have been regstere, FA1505001621663 (Forum July 2, 2015) (“In addition, Respondent has used the disputed domain name to install malware on Internet users’ devices. The Panel finds that this is bad faith under Policy ¶ 4(a)(iii).”); see also Klabzuba Oil & Gas, Inc. v. LAKHPAT SINGH BHANDARI, FA1506001625750 (Forum July 17, 2015) (“Respondent uses the <klabzuba-oilgas.com> domain to engage in phishing, which means Respondent registered and uses the domain name in bad faith under Policy ¶ 4(a)(iii).”). Complainant claims Respondent’s <informeddeliverycampaigns.com> domain name previously directed users to a webpage alerting “hacking [is] in progress” and that users’ “Microsoft Security [has] expired!” However, Complainant does not provide any evidence to support this contention. Additionally, Complainant does provide screenshots from the disputed domain names’ resolving websites. See Compl. Ex. 3. Therefore, the Panel finds that Respondent has engaged in distributing malware and/or phishing and this demonstrates bad faith per Policy ¶ 4(a)(iii).
Finally, the Panel finds that, given the totality of the circumstances and Respondent’s blatant use of Complainant’s trademarks, Respondent had actual knowledge of Complainant’s prior rights in and to the claimed trademarks.
As such, the Panel finds that Respondent has engaged in bad faith use and registration of the disputed domain names.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is ORDERED that the <informeddeliverycampaigns.com>, <informedvisibilitypostcards.com>, and <informedvisibilitydirectmail.com> domain names be transferred from Respondent to Complainant.
Kenneth L. Port, Panelist
Dated: June 25, 2018
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