Garmin Switzerland GmbH v. Simranjeet Singh / Net Care Technologies
Claim Number: FA1906001848925
Complainant is Garmin Switzerland GmbH (“Complainant”), represented by Sam Korte of Garmin International, Inc., Kansas, USA. Respondent is Simranjeet Singh / Net Care Technologies (“Respondent”), India.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <garmins.us>, 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.
Steven M. Levy, Esq. as Panelist.
Complainant submitted a Complaint to the Forum electronically on June 20, 2019; the Forum received payment on June 20, 2019.
On June 21, 2019, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <garmins.us> 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 the U.S. Department of Commerce’s usTLD Dispute Resolution Policy (the “Policy”).
On June 24, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 15, 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@garmins.us. Also on June 24, 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 July 17, 2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Steven M. Levy, Esq. 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 to the usTLD Dispute Resolution Policy (“Rules”). Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the usTLD Policy, usTLD 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 is one of the leading providers of GPS navigation devices and wearable technology. Complainant has rights in the trademark GARMIN through its extensive use since 1989 and its registrations with various governmental bodies such as the United States Patent and Trademark Office (“USPTO”) dating back to 1999. Respondent’s <garmins.us> domain name, registered on March 14, 2018, is confusingly similar to Complainant’s GARMIN mark as the domain name entirely incorporates Complainant’s GARMIN mark and adds the letter “s” on the end.
Respondent has no rights or legitimate interests in the <garmins.us> domain name as Complainant did not authorize Respondent to use the GARMIN mark in any way nor is Respondent commonly known by the disputed domain name. Respondent fails to make a bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent uses the disputed domain name to divert users away from Complainant’s website, redirecting them to a fake customer support page with a fake phone number as part of a phishing scheme aimed at gaining access to users’ credit card numbers. Complainant has received complaints from customers alleging that they were scammed when they contacted the phone number listed on Respondent’s website.
Respondent registered and is using the <garmins.us> domain name in bad faith as Respondent uses the disputed domain name, which includes the GARMIN mark, to lure customers to a fake customer support number. Respondent creates a likelihood of confusion with Complainant to intentionally attract consumers to a website for commercial gain. Respondent had knowledge of Complainant’s rights in the GARMIN mark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
(1) the domain name registered by Respondent is confusingly similar to a trademark in which Complainant has rights;
(2) Respondent has no rights to or legitimate interests in respect of the domain name; and
(3) the disputed domain name was registered and is being used by Respondent 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 or is being used in bad faith.
Given the similarity between the Uniform Domain Name Dispute Resolution Policy (“UDRP”) and the usTLD Policy, the Panel will draw upon UDRP precedent as applicable in rendering its decision.
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.”).
Complainant argues that Respondent’s <garmins.us> is confusingly similar to Complainant’s GARMIN mark as the domain name entirely incorporates Complainant’s GARMIN mark and adds the letter “S” on the end. Use of a domain name that contains a fully formed mark with the addition of a single letter does not distinguish a domain name form a mark per Policy ¶ 4(a)(i). See PathAdvantage Associated v. VistaPrint Technologies Ltd, FA 1625731 (Forum July 23, 2015) (holding that the <pathadvantages.com> domain name was confusingly similar to the PATHADVANTAGE trademark because the domain name “merely adds the letter ‘s’ to Complainant’s mark”). Further, while Complainant does not argue the point, the addition of a country-code top-level domain (ccTLD) is irrelevant in determining whether a domain name is confusingly similar or identical to a mark. See Philip Morris USA Inc. v. Naveen Patnayak, FA 1731422 (Forum June 12, 2017) (“First, the addition of ‘.us’ is inconsequential to the claim of confusing similarity.”) Here, in addition to the modification noted above, Respondent adds the ccTLD “.us” to Complainant’s GARMIN mark while creating its domain name. Therefore, the Panel finds that Respondent’s <garmins.us> domain name is confusingly similar to Complainant’s GARMIN mark per Policy ¶ 4(a)(i).
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). Should it succeed in this effort, the burden then shifts to Respondent to show that 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”).
Complainant argues that Respondent has no rights or legitimate interests in the <garmins.us> domain name. Complainant claims that Respondent is not commonly known by the disputed domain name nor has Respondent been authorized by Complainant to use its GARMIN mark in any way. WHOIS information may be used to determine whether a respondent is commonly known by the disputed domain name under Policy ¶ 4(c)(iii). See Amazon Technologies, Inc. v. LY Ta, FA 1789106 (Forum June 21, 2018) (concluding a respondent has no rights or legitimate interests in a disputed domain name where the complainant asserted it did not authorize the respondent to use the mark, and the relevant WHOIS information indicated the respondent is not commonly known by the domain name). Additionally, lack of authorization to use a complainant’s mark may indicate that the respondent is not commonly known by the disputed domain name. See Emerson Electric Co. v. golden humble / golden globals, FA 1787128 (Forum June 11, 2018) (“lack of evidence in the record to indicate a respondent is authorized to use [the] complainant’s mark may support a finding that [the] respondent does not have rights or legitimate interests in the disputed domain name per Policy ¶ 4(c)(ii)”). There is nothing in the record to suggest that Complainant authorized Respondent to use Complainant’s GARMIN mark. Additionally, the WHOIS information identifies “Simranjeet Singh / Net Care Technologies” as Respondent and, in the absence of any Response or other submission by the Respondent, there is no evidence to suggest that Respondent is known otherwise. Therefore, the Panel may find that Respondent lacks rights or legitimate interests in the <garmins.us> domain name per Policy ¶ 4(c)(iii).
The Panel further agrees that there is nothing in the available evidence to indicates that Respondent has rights in a mark identical to the disputed domain name, which would serve to satisfy Policy ¶ 4(c)(i). See Pepsico, Inc. v. Becky, FA 117014 (Forum Sept. 3, 2002) (holding that because the respondent did not own any trademarks or service marks reflecting the <pepsicola.us> domain name, it had no rights or legitimate interests pursuant to Policy ¶ 4(c)(i)). Therefore, this Panel concludes that Respondent does not meet the criteria of Policy ¶ 4(c)(i).
Next, Complainant argues that Respondent fails to make a bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Complainant contends that Respondent uses the disputed domain name to divert users away from Complainant’s website, redirecting them to a fake customer support page with a fake phone number. Use of a disputed domain name to pass oneself off as a complainant is not a bona fide offering of goods or services or legitimate noncommercial or fair use per Policy ¶¶ 4(c)(ii) or (iv). See Insomniac Holdings, LLC v. Mark Daniels, FA 1735969 (Forum July 15, 2017) (refusing to find rights and legitimate interests in a domain name on the part of a respondent when the disputed domain name “resolves to a website that Respondent has designed to mimic Complainant’s own in an attempt to pass itself off as Complainant”). Here, Complainant provides the Panel with a screenshot of Respondent’s webpage that resolves from the disputed domain name. This incorporates and uses Complainant’s GARMIN mark and displays fake customer service information with many grammatical errors and a fake phone number for users to call. Complainant also claims that it has received complaints from customers alleging that they were scammed when they contacted the phone number listed on Respondent’s website. However, Complainant does not provide any evidence to support this. Based upon the preponderance of the evidence, and in the absence of any Response or other submission by Respondent, the Panel concludes that it is more likely than not that Respondent has failed to make a bona fide offering of goods or services or legitimate noncommercial or fair use per Policy ¶ 4(c)(ii) or (iv).
Complainant argues that Respondent acted in bad faith based upon the assertion that Respondent had actual knowledge of Complainant’s rights in the GARMIN mark as evidenced by Respondent’s use of a domain name with the mark and a website that contains fake technical support services for Complainant’s products. Use of a mark on the resolving webpage of a disputed domain name for a phishing scheme based upon claimed technical support for products can demonstrate a respondent’s actual knowledge of a complainant’s rights in a mark at the time of registration, constituting bad faith under Policy ¶ 4(a)(iii). See Amazon Technologies, Inc. v. David Latin, FA 1760033 (Forum Dec. 21, 2017) (“the resolving domains contain the message ‘Welcome to Amazon Support. We are here to help. 1-877-466-1985,’”). The Panel notes that Complainant has submitted a screenshot of Respondent’s website which incorporates and uses Complainant’s GARMIN mark and displays a fake customer service page and phone number for Complainant’s business. Therefore, the Panel finds that Respondent had actual knowledge of Complainant’s rights in the GARMIN mark, thus constituting bad faith registration per Policy ¶ 4(a)(iii).
Complainant next argues that Respondent registered and is using the disputed domain name in bad faith as the disputed domain name includes the GARMIN mark and disrupts Complainant’s business. Use of a confusingly similar domain name to pass oneself off as a complainant and offer competing services may be evidence of bad faith per Policy ¶ 4(b)(iii) and (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 at which the respondent passes itself off as the complainant and offers online cryptocurrency services in direct competition with the complainant’s business). Here, Complainant provides the Panel with a screenshot of Respondent’s website that resolves from the disputed domain name and this incorporates and uses Complainant’s GARMIN mark and displays a fake customer service page and phone number for Complainant’s business. Complainant argues that this use seeks to attract Complainant’s customers and compete with Complainant’s business. The Panel agrees and finds that Respondent’s attempts to pass itself off as Complainant disrupt Complainant’s business in bad faith per Policy ¶ 4(b)(iii).
Lastly, Complainant contends that Respondent creates a likelihood of confusion to intentionally attract consumers for commercial gain. Diverting Internet users to a disputed domain name and likely profiting can show bad faith registration and use under Policy ¶ 4(b)(iv). See Microsoft Corporation v. Story Remix / Inofficial, FA 1734934 (Forum July 10, 2017) (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). Here, Complainant argues that the use of the GARMIN mark in the domain name and the display of fake customer service information on the resolving webpage creates a likelihood of confusion that Respondent’s domain name is affiliated with Complainant. Further, by posting a fake customer service phone number, it is asserted that the Respondent is using the disputed domain for commercial gain. Therefore, and in the absence of any Response or other submission by the Respondent, the Panel finds it more likely than not that Respondent has registered and uses the disputed domain name in bad faith per Policy ¶ 4(b)(iv) by seeking commercial gain through a likelihood of confusion with Complainant’s mark.
Having established all three elements required under the usTLD Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <garmins.us> domain name be TRANSFERRED from Respondent to Complainant.
Steven M. Levy, Esq., Panelist
Dated: July 18, 2019
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