AMAIN.COM, INC. v. Name Redacted
Claim Number: FA1905001842968
Complainant is AMAIN.COM, INC. (“Complainant”), represented by Michael Strapp of DLA Piper LLP (US), Massachusetts, USA. Respondent’s name has been redacted for the reasons stated under Preliminary Issue: Identity Theft.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <amaiin.com>, registered with Name.com, Inc..
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.
Hon. Karl v. Fink (Ret.) as Panelist.
Complainant submitted a Complaint to the Forum electronically on May 13, 2019; the Forum received payment on May 13, 2019.
On May 14, 2019, Name.com, Inc. confirmed by e-mail to the Forum that the <amaiin.com> domain name is registered with Name.com, Inc. and that Respondent is the current registrant of the name. Name.com, Inc. has verified that Respondent is bound by the Name.com, Inc. 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 17, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 6, 2019 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@amaiin.com. Also on May 17, 2019, 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 7, 2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Hon. Karl V. Fink (Ret.) 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.
Preliminary Issue: Identity Theft
Respondent contends that it has been the victim of identity theft. On May 20, 2019, the Forum received email correspondence from Respondent stating that it does not own the disputed domain name and does not own the email address associated with the disputed domain name. Additionally, Respondent provided a copy of an abuse report filed with name.com.
According to Policy ¶ 4(j), “[a]ll decisions under this Policy will be published in full over the Internet, except when an Administrative Panel determines in an exceptional case to redact portions of its decision.” In Wells Fargo & Co. v. John Doe as Holder of Domain Name <wellzfargo.com>, FA 362108 (Forum Dec. 30, 2004) and Wells Fargo & Co. v. John Doe as Holder of Domain Name <wellsfargossl>, FA 453727 (Forum May 19, 2005), the panels omitted the respondents’ personal information from the decisions, pursuant to Policy ¶ 4(j), in an attempt to protect the respondents who claimed to be victims of identity theft from becoming aligned with acts the actual registrants appeared to have sought to impute to the respondents.
The Panel finds the named Respondent has been the victim of identity theft and the Respondent’s name should be redacted. All references hereafter to the Respondent are to the unknown person who registered the disputed domain name.
A. Complainant
Complainant is a retailer for electronics, motorized vehicles and aircraft, and various related goods and services. Complainant has rights in the AMAIN.COM mark through its trademark registration with the United States Patent and Trademark Office (“USPTO”) (e.g., AMAIN.COM - Reg. No. 4,580,958, registered Aug. 5, 2014). Respondent’s <amaiin.com> domain name is confusingly similar to Complainant’s mark as Respondent incorporates the mark in its entirety along with the extra letter “I.”
Respondent has no rights or legitimate interests in the <amaiin.com> domain name. Respondent is not licensed or permitted to use Complainant’s AMAIN.COM mark in any way, nor is Respondent commonly known by the disputed domain name. Additionally, Respondent fails to use the disputed domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use. Rather, Respondent’s disputed domain name currently resolves to an inactive website.
Respondent registered and uses the <amaiin.com> domain name in bad faith. Respondent attempts to disrupt Complainant’s business by misleading users into believing Complainant’s business never existed. Respondent’s disputed domain name also resolves to an inactive website. Furthermore, Respondent has engaged in typosquatting. Finally, Respondent registered the disputed domain name with the name of an innocent third party.
B. Respondent
Respondent failed to submit a Response in this proceeding.
For the reasons set forth below, the Panel finds Complainant is entitled to the requested relief of transfer of the <amaiin.com> domain name.
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 set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
Complainant claims rights in the AMAIN.COM mark based upon registration of the mark with the USPTO (e.g., AMAIN.COM - Reg. No. 4,580,958, registered Aug. 5, 2014). Registration of a mark with the USPTO is sufficient to establish rights in that mark. See Home Depot Product Authority, LLC v. Samy Yosef / Express Transporting, FA 1738124 (Forum July 28, 2017) (finding that registration with the USPTO was sufficient to establish the complainant’s rights in the HOME DEPOT mark). The Panel finds that that Complainant’s registration of the AMAIN.COM marks with the USPTO is sufficient to establish rights in the marks under Policy ¶ 4(a)(i).
Complainant next argues Respondent’s <amaiin.com> domain name is confusingly similar to the AMAIN.COM mark, as the name incorporates the mark in its entirety, along with the additional letter “I.” Such changes are not sufficient to distinguish a domain name from an incorporated mark in a Policy ¶ 4(a)(i) analysis. See Klein Tools, Inc. v chenxinqi, FA 1617328 (Forum July 6, 2018) (finding that the <klentools.com> domain name is confusingly similar to the KLEIN TOOLS mark as it contains the entire KLEIN TOOLS mark and merely omits the letter “l” and adds the “.com” generic top-level domain (“gTLD”)). The Panel finds that the <amaiin.com> domain name is confusingly similar to the AMAIN.COM mark per Policy ¶ 4(a)(i).
Complainant has proved this element.
Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), then the burden shifts to Respondent to show it does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests”). The Panel finds that Complainant has made a prima facie case.
Complainant argues that Respondent has no rights or legitimate interests in the <amaiin.com> domain name, as Respondent is not commonly known by the disputed domain name, nor has Complainant authorized Respondent to use the AMAIN mark in any way. WHOIS information can support a finding that the respondent is not commonly known by a disputed domain name. See Philip Morris USA Inc. v. Usama Ramzan, FA 1737750 (Forum July 26, 2017) (“We begin by noting that Complainant contends, and Respondent does not deny, that Respondent has not been commonly known by the <marlborocoupon.us> domain name, and that Complainant has not authorized Respondent to use the MARLBORO mark in any way. Moreover, the pertinent WHOIS information identifies the registrant of the domain name only as “Usama Ramzan,” which does not resemble the domain name. On this record, we conclude that Respondent has not been commonly known by the challenged domain name so as to have acquired rights to or legitimate interests in it within the purview of Policy ¶ 4(c)(ii).”). The WHOIS information of record identifies the registrant of the at-issue domain name as [the name has been redacted] and no information on the record indicates Respondent was authorized to register a domain name incorporating Complainant’s mark. The Panel finds under Policy ¶ 4(c)(ii) that Respondent has not been commonly known by the <amaiin.com> domain name.
Complainant also asserts Respondent’s inactive holding of the <amaiin.com> domain name indicates it does not have rights or legitimate interests in the name. Inactive holding of a domain name does not demonstrate rights or legitimate interests in the name per Policy ¶¶ 4(c)(i) or (iii). See George Weston Bakeries Inc. v. McBroom, FA 933276 (Forum Apr. 25, 2007) (finding that the respondent had no rights or legitimate interests in a domain name under either Policy ¶ 4(c)(i) or Policy ¶ 4(c)(iii) where it failed to make any active use of the domain name). Complainant contends Respondent’s domain name does not resolve to an active webpage. The Panel finds Respondent does not have rights or legitimate interests in respect of the domain name per Policy ¶¶ 4(c)(i) or (iii).
Complainant has proved this element.
Complainant contends that Respondent’s bad faith is indicated by its use of the <amaiin.com> domain name to resolve to an inactive website, which disrupts Complainant’s business. Use of a domain name to create the impression that a complainant never existed can demonstrate a respondent’s bad faith per Policy ¶ 4(b)(iii). See Love City Brewing Company v. Anker Fog / Love City Brewing Company, FA 1753144 (Forum Nov. 27, 2017) (Finding that Respondent disrupts Complainant’s business by pointing Internet users to an expired webpage. This may create the perception that Complainant is closed, never existed, or is not a legitimate business. The Panel finds that Respondent registered and uses the disputed domain names in bad faith per Policy ¶ 4(b)(iii).). The disputed domain name resolves to an inactive website. The Panel finds that Respondent has registered and uses the domain name in bad faith per Policy ¶ 4(b)(iii).
Complainant asserts that Respondent’s failure to use the <amaiin.com> domain name is evidence of its bad faith. Inactive holding of a domain name can be evidence of bad faith under Policy ¶ 4(a)(iii). See VideoLink, Inc. v. Xantech Corporation, FA1503001608735 (Forum May 12, 2015) (“Failure to actively use a domain name is evidence of bad faith registration and use pursuant to Policy ¶ 4(a)(iii).”). Complainant argues that the domain name does not resolve to an active website. The Panel finds that Respondent’s inactive holding of the domain name is evidence of its bad faith per Policy ¶ 4(a)(iii).
Complainant contends Respondent has provided false contact information in connection with the registration of the <amaiin.com> domain name. Use of false contact information in registering a domain name can be evidence of bad faith registration per Policy ¶ 4(a)(iii). See Farouk Systems, Inc. v. Jack King / SLB, FA1505001618704 (Forum June 19, 2015) (finding bad faith registration and use pursuant to Policy ¶ 4(a)(iii) where the respondent had provided false contact information when registering the disputed domain name). Complainant provides correspondence from the named Respondent stating that the true Respondent registered the disputed domain name without authorization. The Panel finds Respondent’s registration of the domain name with false contact information is evidence of its bad faith per Policy ¶ 4(a)(iii) and finds Respondent registered and uses the domain name in bad faith.
Complainant has proved this element.
DECISION
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is ORDERED that the <amaiin.com> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Karl V. Fink (Ret.) Panelist
Dated: June 10, 2019
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