Arlo Technologies, Inc. v. pc status inc
Claim Number: FA1910001866851
Complainant is Arlo Technologies, Inc. (“Complainant”), represented by Erica N. Goven, Nebraska, USA. Respondent is pc status inc (“Respondent”), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <247arlosupport.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.
James Bridgeman SC as Panelist.
Complainant submitted a Complaint to the Forum electronically on October 15, 2019; the Forum received payment on October 15, 2019.
On October 16, 2019, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <247arlosupport.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 October 17, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 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@247arlosupport.com.
Also on October 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 November 11, 2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed James Bridgeman SC 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 disputed domain name be transferred from Respondent to Complainant.
Complainant asserts that it has rights in the ARLO trademark and service mark acquired though its ownership of the portfolio of registered trademark described below and use of the mark by itself and its predecessor in interest, NETGEAR, Inc. in sales, promotion and advertisements for at least five years and over which period Complainant submits that it has gained a significant international reputation for the ARLO, ARLO mark and its ARLO bird logo in Australia, Canada, China, the European Union, Japan, Norway, Switzerland, Trinidad & Tobago, and the United States.
Complainant additionally submits that it has displayed the ARLO trademarks prominently on its products and has consistently and intentionally used ARLO as the leading and distinguishing portion of its product names including, but not limited to, “ARLO”, “ARLO ULTRA”, “ARLO PRO 2”, “ARLO PRO”, “ARLO WIRE-FREE”, “ARLO GO” and “ARLO SMART”.
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Complainant submits that the disputed domain name is confusingly similar to Complainant’s ARLO trademarks as it includes the ARLO trademark in its entirety and the only additional elements within the disputed domain name are the generic or descriptive number “247”, the word “support”, and the “.com” top-level domain extension. Complainant argues that because the disputed domain name includes Complainant’s entire trademark and differs only by the addition of generic or descriptive elements and the top-level domain extension, these elements are insufficient to differentiate the domain name and Complainant’s mark. See Microsoft Corporation v. Thong Tran Thahn FA 15120001653187 (Forum January 21, 2016 citing Arthur Guinness Son & Co. (Dublin) Ltd. v. Healy/BOSTH D2001-0026 (WIPO March 23, 2001).
Complainant adds that the inclusion of the number “247” and the word “support” within the disputed domain name further aggravates the confusion between the disputed domain name and Complainant’s trademark since Complainant provides its consumers support products and services online, some of which are available twenty-four hours a day seven days a week.
Complainant further submits that Respondent is not a licensee, service provider, or distributor of Complainant nor is Respondent otherwise authorized to use the ARLO trademark, for any purpose and thus, there is no reason why Respondent should be identified or commonly known by the disputed domain name.
Complainant submits additionally that Respondent’s use of the disputed domain name does not fall within the bounds of fair use; that here is no legitimate connection between the disputed domain name and the ARLO trademark; that the services being offered at the disputed domain name are not authorized by Complainant; and the fact that these support services are being offered in connection with the disputed domain name provides evidence of commercial use, which removes the defense of fair use. See Six Continents Hotels, Inc. v. Georgetown Inc. D2003-0214 (WIPO May 18, 2003).
Complainant submits that it has made out a prima facie case pursuant to the Policy ¶ 4(a)(ii) showing that the Respondent lacks rights or a legitimate interest in the disputed domain name and submits that therefore the burden of proof shifts to the Respondent to prove otherwise. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum August 18, 2006).
Complainant submits that Respondent created and registered the disputed domain name in bad faith in order to create a likelihood of confusion between the disputed domain name and the ARLO trademark since the disputed domain name incorporates in its entirety ARLO, the disputed domain name offers support services that compete with the legitimate support services provided by Complainant, and the look and feel of the content at the website to which the disputed domain name resolves, especially the inclusion of the ARLO mark, Complainant’s ARLO bird design logo and ARLO marked products prominently throughout the website, together create the false impression of an affiliation between the disputed domain name and the ARLO trademark.
Complainant adds that the ARLO mark is an arbitrary term which has no meaning outside its use as a means to identify Complainant as a source of certain products and services and it is unlikely that the Respondent devised the disputed domain name on its own. This factor alone weighs in favor of finding bad faith against Respondent. See Neuberger Berman, Inc. D2000-0323 (WIPO Nov. 2, 2000) (weighing the uniqueness of the trademark, and the likelihood of Respondent coming up with the domain name independently, in finding bad faith); Bigstar Entm't, Inc. v. Next Big Star, Inc., 105 F. Supp. 2d 185 (S.D.N.Y. 2000) ("…the more unique and inherently distinctive the marks, the stronger it is, and the greater the likelihood that the public may confuse a similar mark").
By clicking the “Arlo Support Number” on the website to which the disputed domain name resolves, a chat function is activated and a phone icon appears that allows consumers to either call Respondent, “leave a message”, or submit a request to have Respondent call the consumer. Counsel for Complainant engaged in the chat functionality on the website on August 9, 2019, and enquired “If I call that number will someone from Arlo answer?” The response was:“Yes. Certified technician’s going to help you.” Complainant submits that this exchange in itself demonstrates that the Respondent is purporting to be Complainant by (1) intentionally naming its chat function “Arlo” to mislead consumers into thinking they are speaking with Complainant, (2) stating that Respondent has “certified” technicians, suggesting Respondent has been officially recognized by Complainant as a support service provider, which it has not, and (3) by eliciting consumers on the website to engage in commercial activity by calling Respondent to receive support services for Complainant’s products and services.
Complainant also submits that Respondent purports to be affiliated or endorsed by Complainant in order to mislead consumers and compete with Complainant’s legitimate support services for its products. For instance, on Respondent’s website’s “Arlo Support Page” Respondent states, “. . . Arlo leads the chart as the best security camera manufacturer in the world. What separates Arlo from its competitors is the Arlo Support Number provided by the company to ensure a hassle-free smooth functioning.” However, when consumers click on the Arlo Support Number hyperlink it will lead them to Respondent’s services, which are in no way connected to Complainant. Complainant argues that the statement and corresponding hyperlink to Respondent’s services creates a false impression that Complainant has endorsed Respondent’s services.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant is a manufacturer of smart-connected devices, including wire-free smart Wi-Fi and LTE-enabled cameras, advanced baby monitors, smart security devices, audio doorbells and cameras and is the owner of an international portfolio of registered trademarks including, United States registered trademark ARLO, registration number 4906065, registered on February 23, 2016 for goods and services in international classes 9 and 42.
Complainant is also the owner of the <arlo.com> domain name and maintains an Internet presence through its website providing information about its products and services at <https://www.arlo.com/en-us/>.
The disputed domain name was registered on July 9, 2018 and resolves to an interactive website which purports to provide support for Complainant’s products.
In the absence of a Response, there is no information available about Respondent except for that which has been provided in the Complaint and the registration details provided by the Registrar in reply to the verification request sent by the Forum. Respondent has availed of a privacy service to conceal its name and contact details on the public WhoIs.
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."
Policy ¶ 4(a) 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 has provided ample evidence of its rights in the ARLO trademark acquired by its abovementioned trademark registrations and extensive, albeit relatively short use of the mark in its electronics business.
The disputed domain name consists of Complainant’s ARLO trademark in its entirety as its dominant element in combination with the generic or descriptive word parts “247”, “SUPPORT”, and the gTLD “.com” top-level domain extension.
This Panel finds that the elements “247” and “support” are descriptive of support services and in the circumstances of this case, the gTLD extension may be ignored and therefore the only distinctive element of the domain name is Complainant’s ARLO mark.
This Panel finds consequently that the disputed domain name is confusingly similar to the ARLO mark in which Complainant has rights. Complainant has therefore succeeded in the first element of the test in Policy ¶ 4(a)(i).
In these circumstances the burden of proof shifts to the Respondent to prove that it has such rights or legitimate interests. Respondent has failed to discharge the burden and therefore Complainant is entitled to succeed in the second element of the test in in Policy ¶ 4(a)(ii).
Complainant’s ARLO trademark is the dominant element of the disputed domain name. It is improbable that the registrant of the disputed domain name was unaware of Complainant, its business and ARLO trademark when the disputed domain name was registered. It is most probable that the disputed domain name was created and registered in order to target Complainant and take predatory advantage of its goodwill in the ARLO mark.
The use of the disputed domain name by Respondent supports this finding. The website to which the disputed domain name resolves purports to provide continuous service to users of Complainant’s products. If the information posted on Respondent’s website it to be believed, it is misleadingly presenting itself to the public, impersonating Complainant and offering services which compete with Complainant’s services.
There is no indication on Respondent’s website that it has no association with Complainant and on the contrary the content posted on the site gives the misleading impression that Respondent’s services are either provided by Complainant or have an association with Complainant.
This Panel finds therefore on the balance of probabilities that by using the disputed domain name, Respondent has intentionally attempted to attract, for commercial gain, Internet users to Respondent's web site by creating a likelihood of confusion with Complainant's ARLO mark as to the source, sponsorship, affiliation, or endorsement of Respondent's web site and the products offered for sale by Respondent on the website to which the disputed domain name resolves.
On the evidence adduced, this Panel finds that on the balance of probabilities the disputed domain name was registered and is being used in bad faith. Complainant has therefore established the third and final element of the test in in Policy ¶ 4(a)(iii) and is entitled to succeed in this application.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <247arlosupport.com> domain name be TRANSFERRED from Respondent to Complainant.
___________________
James Bridgeman SC
Panelist
Dated: November 12, 2019
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