TrueCar, Inc. v. Leo Hernandez
Claim Number: FA1807001798795
Complainant is TrueCar, Inc. (“Complainant”), represented by Alyssa Worsham of Wilson Sonsini Goodrich & Rosati, California, USA. Respondent is Leo Hernandez (“Respondent”), Florida, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <truecarsavings.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 July 26, 2018; the Forum received payment on July 26, 2018.
On July 27, 2018, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <truecarsavings.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 July 30, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 20, 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@truecarsavings.com. Also on July 30, 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 August 21, 2018, 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 provides an online platform where consumers seeking to purchase a car are able to gain access to a network of more than 15,000 certified dealers who are committed to price transparency and upfront pricing. Through Complainant’s website and mobile application, consumers can access pricing information related to what others have paid for a specific make, model and trim of a car in their area. In addition, registered consumers can receive guaranteed savings off the manufacturer’s suggested retail price for a particular make, model and trim, as well as, in most instances, price offers on actual vehicle inventory from its network of certified dealers. Complainant has rights in the TRUECAR mark based upon its registration in the United States in 2010.
Complainant alleges that the disputed domain name is confusingly similar to its mark because it wholly incorporates Complainant’s TRUECAR mark, and is only differentiated by the addition of the generic term “savings” and the incorporation of the “.com” generic top-level domain (“gTLD”). Complainant cites UDRP precedents to support its position.
According to Complainant, Respondent lacks rights and legitimate interests in the disputed domain name. Respondent is not authorized to use Complainant’s TRUECAR mark and is not commonly known by the disputed domain name. Additionally, Respondent does not make nominative fair use of the disputed domain name. Instead, Respondent operates a phishing scheme. Complainant cites UDRP precedents to support its position.
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith. Respondent attempts to pass off as Complainant in furtherance of a phishing scam to steal internet users’ personal and financial information. Furthermore, Respondent had actual and constructive knowledge of Complainant’s rights in the TRUECAR mark prior to registering the disputed domain name. Complainant cites UDRP precedents to support its position.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns the mark TRUECAR, with rights dating back to at least 2010.
The disputed domain name was registered in 2018.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
The disputed domain name resolves to a web site that purports to offer products and services that are not related to Complainant; further, the site requests personal information from users.
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 Complainant’s mark because the name wholly incorporates the TRUECAR mark with the addition of the generic term “savings” and a gTLD. The addition of a generic term and a gTLD to a complainant’s mark may not sufficiently distinguish a disputed domain name from the complainant’s mark per Policy ¶ 4(a)(i). See Wiluna Holdings, LLC v. Edna Sherman, FA 1652781 (Forum Jan. 22, 2016) (finding the addition of a generic term and gTLD is insufficient in distinguishing a disputed domain name from a mark under Policy ¶ 4(a)(i)). Accordingly, the Panel finds that Respondent’s <truecarsavings.com> domain name is confusingly similar to Complainant’s TRUE CAR mark per Policy ¶ 4(a)(i).
Complainant has not authorized Respondent to use its mark in any way. Respondent is not commonly known by the disputed domain name: where a response is lacking, WHOIS information may be used to identify a respondent per Policy ¶ 4(c)(ii). See Chevron Intellectual Property LLC v. Fred Wallace, FA1506001626022 (Forum July 27, 2015) (finding that the respondent was not commonly known by the <chevron-europe.com> domain name under Policy ¶ 4(c)(ii), as the WHOIS information named “Fred Wallace” as registrant of the disputed domain name). Here, the WHOIS information of record identifies Respondent as “Leo Hernandez.” Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii).
Further, Respondent is not using the disputed domain name for a bona fide offering of goods or services or a legitimate noncommercial or fair use. Instead, Respondent is attempting to pass off as Complainant in furtherance of a phishing scam. Specifically, the resolving website prominently displays a tab labeled “Credit Application” wherein visitors to the site are prompted to enter personally identifiable information, including their name, phone number, and address, as well as their social security number. Use of a disputed domain name to pass off as a complainant in furtherance of a phishing scam is not a bona fide offering of goods or services or any legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii). See Google Inc. v. Pritam Singh / Pandaje Technical Services Pvt Ltd., FA 1660771 (Forum Mar. 17, 2016) (agreeing that respondent has not shown any bona fide offering of goods or services or any legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii) as the respondent used the complainant’s mark and logo on a resolving website containing offers for technical support and password recovery services, and soliciting Internet users’ personal information). Accordingly, the Panel finds that Respondent fails to use the disputed domain name in connection with a bona fide offering of goods and services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) and (iii).
In addition, the resolving website offers products and services that are not related to those of Complainant. This does not constitute a bona fide offering of goods or services or a legitimate noncommercial or fair use under the Policy. See Summit Group, LLC v. LSO, Ltd., FA 758981 (Forum Sept. 14, 2006) (finding that the respondent’s use of the complainant’s LIFESTYLE LOUNGE mark to redirect Internet users to respondent’s own website for commercial gain does not constitute either a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii)); see also Vapor Blast Mfg. Co. v. R & S Tech., Inc., FA 96577 (Forum Feb. 27, 2001) (finding that the respondent’s commercial use of a confusingly similar domain name suggests that the respondent lacks rights or legitimate interests in the disputed domain name); see also Ripple Labs Inc. v. NGYEN NGOC PHUONG THAO, FA 1741737 (Forum Aug.21, 2017) (“Respondent uses the [disputed] domain name to divert Internet users to Respondent’s website… confusing them into believing that some sort of affiliation exists between it and Complainant… [which] is neither a bona fide offering of goods or services under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).”).
For all the above reasons, the Panel finds that Respondent has no rights or legitimate interests in the disputed domain name.
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 uses the disputed domain name to pass off as Complainant to phish for internet users’ personal and financial information. Using a disputed domain to pass off as a complainant in furtherance of a phishing scheme may support a finding of bad faith per Policy ¶ 4(b)(iv). See Ripple Labs Inc. v. Jessie McKoy / Ripple Reserve Fund, FA 1790949 (Forum July 9, 2018) (finding bad faith per Policy ¶¶ 4(b)(iii) and (iv) where the respondent used the disputed domain name to resolve to a website upon which the respondent passes off as the complainant and offers online cryptocurrency services in direct competition with the complainant’s business); 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).”). Accordingly, the Panel finds that Respondent registered and uses the disputed domain name in bad faith under Policy ¶ 4(b)(iii) and (iv).
Further, the resolving website promotes products and services unrelated to Complainant’s business. Such use of a domain name can demonstrate a respondent’s bad faith per Policy ¶ 4(b)(iv). See Allianz of Am. Corp. v. Bond, FA 680624 (Forum June 2, 2006) (finding bad faith registration and use under Policy ¶ 4(b)(iv) where the respondent was diverting Internet users searching for the complainant to its own website and likely profiting); see also Fossil, Inc. v. wwwfossil-watch.org c/o Hostmaster, Case No. FA 335513 (Forum Nov. 9, 2004) (finding bad faith where respondent attempted to profit from the fame of complainant’s trademark by attracting internet traffic to his website); see also Tumblr, Inc. v. Ailing Liu, FA1402001543807 (Forum March 24, 2014) (“Bad faith use and registration exists under Policy ¶ 4(b)(iv) where a respondent uses a confusingly similar domain name to resolve to a website featuring links and advertisements unrelated to complainant’s business and respondent is likely collecting fees.”). The Panel therefore finds that Respondent has registered and used the domain name in bad faith per Policy ¶¶ 4(b)(iv) on this ground also.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <truecarsavings.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: August 21, 2018
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