PopSockets LLC v. Chris Zagales / Next Exit Capital
Claim Number: FA1907001850925
Complainant is PopSockets LLC (“Complainant”), represented by Gregory J. Chinlund of Marshall, Gerstein & Borun LLP, Illinois, USA. Respondent is Chris Zagales / Next Exit Capital (“Respondent”), Florida, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <wholesalepopupsockets.com>, 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.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on July 3, 2019; the Forum received payment on July 3, 2019.
On July 4, 2019, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <wholesalepopupsockets.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 8, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 29, 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@wholesalepopupsockets.com. Also on July 8, 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 August 2, 2019, 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 is one of the United States’ leading providers of grip and mount accessories for handheld electronic devices. Complainant has rights in the POPSOCKETS mark through its registration of the mark in the United States in 2014.
Complainant alleges that the disputed domain name is confusingly similar to its POPSOCKETS mark because it incorporates the mark in its entirety and merely adds the generic terms “wholesale” and “up” along with the “.com” generic top-level domain (gTLD).
According to Complainant, Respondent has no rights or legitimate interests in the disputed domain name as Respondent is not 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 pass itself off as Complainant and offer for sale counterfeit or unauthorized versions of Complainant’s products.
Further, says Complainant, Respondent registered and used the disputed domain name for the purpose of disrupting Complainant’s business. Respondent intentionally attempts to attract, for commercial gain, Internet users by creating a likelihood of confusion as to the source, sponsorship, affiliation, or endorsement of the disputed domain name. Lastly, Respondent had knowledge of Complainant’s POPSOCKETS mark when it registered the disputed domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has registered trademarks for the mark POP SOCKET and uses it to market a variety of grip and mount accessories for handheld electronic devices.
Complainant’s rights in its mark date back to at least 2014.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
The disputed domain name was registered in 2018.
The resolving website offers for sale counterfeit or unauthorized versions of Complainant’s products.
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”).
The disputed domain name incorporates the mark in its entirety and merely adds the generic terms “wholesale” and “up” along with the “.com” gTLD. Use of a disputed domain that wholly incorporates a mark and adds generic terms and a gTLD does not distinguish the domain name from the 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)). Therefore, the Panel finds that the <wholesalepopupsockets.com> domain name is confusingly similar to Complainant’s POPSOCKETS mark per Policy ¶ 4(a)(i).
Complainant has not licensed or otherwise authorized Respondent to use its mark. Respondent is not commonly known by the disputed domain name: where a response is lacking, relevant WHOIS information may be used to determine whether a respondent is commonly known by the disputed domain name under Policy ¶ 4(c)(ii). 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). Here, the WHOIS information for the disputed domain name lists the registrant as “Chris Zagales / Next Exit Capital”. Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii).
The resolving website offers for sale counterfeit or unauthorized versions of Complainant’s products. This is not a bona fide offering of goods or services or legitimate noncommercial or fair use per Policy ¶ 4(c)(i) or (iii). See Nokia Corp. v. Eagle, FA 1125685 (Forum Feb. 7, 2008) (finding the respondent’s use of the disputed domain name to pass itself off as the complainant in order to advertise and sell unauthorized products of the complainant was not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use of the disputed domain name pursuant to Policy ¶ 4(c)(iii)). Therefore, the Panel finds that Respondent has failed to make a bona fide offering of goods or services or legitimate noncommercial or fair use per Policy ¶ 4(c)(i) or (iii). Moreover, 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 name.
Indeed, as already noted, the resolving website offers for sale unauthorized or counterfeit version of Complainant’s products. Use of a disputed domain name to offer counterfeit versions of a complainant’s product may be evidence of bad faith per Policy ¶ 4(b)(iii). See Russell & Bromley Limited v. Li Wei Wei, FA 1752021 (Forum Nov. 17, 2017) (finding the respondent registered and used the at-issue domain name in bad faith because it used the name to pass off as the complainant and offer for sale competitive, counterfeit goods). Therefore, the Panel finds that Respondent registered and used the disputed domain name in bad faith per Policy ¶ 4(b)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <wholesalepopupsockets.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: August 2, 2019
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