Trusted Tech Team, Inc. v. Grigore Berzan
Claim Number: FA1911001871815
Complainant is Trusted Tech Team, Inc. (“Complainant”), represented by Hani Sayed of Rutan & Tucker LLP, California, United States. Respondent is Grigore Berzan (“Respondent”), Moldova.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <trustedtechteams.com>, registered with NameCheap, Inc..
The undersigned certifies that he 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 November 18, 2019; the Forum received payment on November 18, 2019.
On November 19, 2019, NameCheap, Inc. confirmed by e-mail to the Forum that the <trustedtechteams.com> domain name is registered with NameCheap, Inc. and that Respondent is the current registrant of the name. NameCheap, Inc. has verified that Respondent is bound by the NameCheap, 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 November 19, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 9, 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@trustedtechteams.com. Also on November 19, 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 December 11, 2019, Complainant submitted an Additional Submission.
On December 15, 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 an online reseller of software. Essentially, Complainant sells activation codes for a variety of software and is a Microsoft-authorized provider of such activation codes. Complainant has rights in the TRUSTED TECH TEAM through its registration in the United States on December 11, 2018.
Complainant alleges that the disputed domain name is confusingly similar to its TRUSTED TECH TEAM mark as the disputed domain name incorporates the mark in its entirety, merely adding the letter “s” and the “.com” generic top-level domain (“gTLD”). Complainant cites UDRP precedents to support its position.
According to Complainant, Respondent has no rights or legitimate interests in the disputed domain name. Respondent is not licensed or authorized to use Complainant’s TRUSTED TECH TEAM mark and is not commonly known by the disputed domain name. Respondent doesn’t use the disputed domain for any bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent is passing off as Complainant to conduct a fraudulent scheme: the resolving website mimics Complainant’s legitimate website, displays its mark and logo, and provides fake activation codes. 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 for Respondent’s commercial gain. Furthermore, Respondent had actual knowledge of Complainant’s mark when it registered the disputed domain name. Complainant cites UDRP precedents to support its position.
B. Respondent
Respondent failed to submit a Response in this proceeding.
C. Additional Submissions
It its Additional Submission, Complainant provides correspondence between Complainant and individuals who attempted to purchase software from Complainant, mistakenly reached Respondent’s website, paid Respondent, and did not receive authorization codes.
Complainant owns the mark TRUSTED TECH TEAM and uses it to sell software activation codes.
Complainant’s rights in its mark date back to December 11, 2018.
The disputed domain name was registered on October 11, 2019.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
The resolving website mimics Complainant’s legitimate website, displaying Complainant’s mark and logo, and it offers for sale fake activation codes.
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 Complainant’s mark in its entirely and merely adds the letter “s” and a gTLD to Complainant’s mark. Additions of letters or a gTLD does not negate any confusing similarity between a disputed domain name and mark under 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”); see alsoTrip Network Inc. v. Alviera, FA 914943 (Forum Mar. 27, 2007) (concluding that the affixation of a gTLD to a domain name is irrelevant to a Policy ¶ 4(a)(i) analysis). Therefore, the Panel finds that the <trustedtechteam.com> domain name is confusingly similar to Complainant’s TRUSTED TECH TEAM 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, 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 “Grigore Berzan.” Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii).
Respondent is using the disputed domain name to pass off as Complainant in order to defraud Internet users. Specifically, Complainant provides evidence showing that the disputed domain name resolves to a site which attempts to impersonate Complainant and which sells fake activation codes. Passing off behavior may not evince rights or legitimate interests under Policy ¶¶ 4(c)(i) and (iii). See Am. Int’l Group, Inc. v. Busby, FA 156251 (Forum May 30, 2003) (finding that the respondent attempts to pass itself off as the complainant online, which is blatant unauthorized use of the complainant’s mark and is evidence that the respondent has no rights or legitimate interests in the disputed domain name); see also Goodwin Procter LLP v. GAYLE FANDETTI, FA 1738231 (Forum Aug. 8, 2017) (“[T]he Domain Name has been used in an attempted fraud. As such it cannot have been registered for a legitimate purpose.”). Thus, the Panel finds that Respondent does not make a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) and (iii). And 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, Respondent is disrupting Complainant’s business by attempting to pass off as Complainant for Respondent’s commercial gain by selling fake activation codes. Use of a disputed domain name to pass off as a complainant for a respondent’s commercial gain may evince a finding of bad faith pursuant to Policy ¶ 4(b)(iv). See Bittrex, Inc. v. Wuxi Yilian LLC, FA 1760517 (Forum Dec. 27, 2017) (finding bad faith per Policy ¶ 4(b)(iv) where “Respondent registered and uses the <lbittrex.com> domain name in bad faith by directing Internet users to a website that mimics Complainant’s own website in order to confuse users into believing that Respondent is Complainant, or is otherwise affiliated or associated with Complainant.”); see also 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)(iv).
Further, Respondent registered the disputed domain name with actual knowledge of Complainant’s mark: the resolving website mimics Complainant’s legitimate website and displays Complainant’s mark and logo. While constructive notice is insufficient to demonstrate bad faith, actual knowledge of a complainant’s rights in a mark prior to registration may be evidence of bad faith per Policy ¶ 4(a)(iii). See Custom Modular Direct LLC v. Custom Modular Homes Inc., FA 1140580 (Forum Apr. 8, 2008) (“There is no place for constructive notice under the Policy.”); see also Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum Feb. 6, 2014) (“The Panel notes that although the UDRP does not recognize ‘constructive notice’ as sufficient grounds for finding Policy ¶ 4(a)(iii) bad faith, the Panel here finds actual knowledge through the name used for the domain and the use made of it.”); see also Univision Comm'cns Inc. v. Norte, FA 1000079 (Forum Aug. 16, 2007) (rejecting the respondent's contention that it did not register the disputed domain name in bad faith since the panel found that the respondent had knowledge of the complainant's rights in the UNIVISION mark when registering the disputed domain name). The Panel finds that Respondent had actual knowledge of Complainant’s rights in the mark prior to Respondent’s registration of the disputed domain name and that this constitutes bad faith under Policy ¶ 4(a)(iii).
Finally, by merely misspelling Complainant’s mark, Respondent engages in typosquatting. A finding of typosquatting can evince bad faith under Policy ¶ 4(a)(iii). See Adorama, Inc. v. Moniker Privacy Services, FA1503001610020 (Forum May 1, 2015) (“Respondent has also engaged in typosquatting, which is additional evidence of bad faith registration and use under Policy ¶ 4(a)(iii). Respondents who capitalize on common typing errors engage in bad faith registration under Policy ¶ 4(a)(iii).”). As such, the Panel finds bad faith typosquatting under Policy ¶ 4(a)(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 <trustedtechteams.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: December 15, 2019
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