Adobe Inc. v. Ashish Mishra
Claim Number: FA2002001882924
Complainant is Adobe Inc. (“Complainant”), represented by Fabricio Vayra of Perkins Coie LLP, District of Columbia, USA. Respondent is Ashish Mishra (“Respondent”), India.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <adobesupportnumbers.com> (‘the Domain Name’), registered with GoDaddy.com, LLC.
The undersigned certifies that she has acted independently and impartially and to the best of her knowledge has no known conflict in serving as Panelist in this proceeding.
Dawn Osborne as Panelist.
Complainant submitted a Complaint to the Forum electronically on February 12, 2020; the Forum received payment on February 12, 2020.
On February 12, 2020, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <adobesupportnumbers.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 February 13, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 4, 2020 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@adobesupportnumbers.com. Also on February 13, 2020, 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 March 10, 2020 pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Dawn Osborne 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
The Complainant is the owner of the mark ADOBE registered, inter alia, in the USA for computer software products and services with first use in commerce recorded as 1986.
The Domain Name registered in 2018 is confusingly similar to the Complainant’s mark adding only the generic words ‘support’ and ‘numbers’ and the gTLD .com which do not prevent said confusing similarity.
The Respondent does not have rights or legitimate interests in the Domain Name, is not commonly known by it and is not authorized by the Complainant.
Respondent has not and is not using the Domain Name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use. The Domain Name resolves to a website that prominently features Complainant’s ADOBE mark, along with other of Complainant’s marks and logos, in connection with unauthorized customer service support numbers that are not operated by the Complainant. This use is registration and use in bad faith confusing customers for commercial gain by using the Complainant’s marks and logos. This shows actual knowledge of the Complainant and its rights.
The Respondent used a privacy service for the Disputed Domain, Domains By Proxy. The following brand-based domains are also linked to Domains By Proxy: delltechnicalsupportnumber.com, lenovotechsupport.com, and acersupport247.com (collectively, the “Identified Domains”).
Although the registrant information is masked for each of the Identified Domains, there are enough points of similarity between these domains and the Disputed Domain to conclude that there is common ownership. The Respondent has common control over the Domain Name and the Identified Domains and has therefore engaged in a pattern of registering domains in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Complainant is the owner of the mark ADOBE registered, inter alia, in the USA for computer software products and used since 1986.
The Domain Name registered in 2018 has been pointed to a site that uses the Complainant’s ADOBE mark and various of its logos to offer computer support services not connected with the Complainant.
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”).
Identical or Confusingly Similar
The Domain Name in this Complaint combines the Complainant’s ADOBE mark (registered in the USA for goods and services relating to computer software with first use recorded as 1986) with the generic words ‘support’ and ‘numbers’ and the gTLD .com which do not prevent confusing similarity between the Domain Name and the Complainant’s mark per Policy 4(a)(i). See Abbott Laboratories v. Miles White, FA 1646590 (Forum Dec. 10, 2015) (holding that the addition of generic terms do not adequately distinguish a disputed domain name from complainant’s mark under Policy 4(a)(i).); see also Red Hat Inc. v. Haecke, FA 726010 (Forum July 24, 2006) (concluding that the redhat.org domain name is identical to the complainant's red hat mark because the mere addition of the gTLD was insufficient to differentiate the disputed domain name from the mark).
Accordingly, the Panel finds that the Domain Name is confusingly similar to a mark in which the Complainant has rights for the purpose of the Policy.
Rights or Legitimate Interests
The Complainant has not authorized the Respondent to use the ADOBE mark. The Respondent has not answered this Complaint and does not appear to be commonly known by the Domain Name. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum Sept. 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark).
The use of the Domain Name is commercial and so cannot be legitimate noncommercial use.
It is clear from the evidence that the Respondent has used the site attached to the Domain Name to promote competing computer services which are not connected with the Complainant. This use of the Complainant’s logos on the site attached to the Domain Name makes it clear that the Respondent was aware of the significance of the ADOBE name and the Complainant, its business, rights and services. The usage of the Complainant’s ADOBE mark and the Complainant’s logos which have a significant reputation in relation to computer related goods and services is not fair as the site attached to the Domain Name does not make it clear that there is no commercial connection with the Complainant and the Respondent appears to refer to itself, its business and/or its services using the Complainant’s ADOBE mark and its logos in a misleading way passing itself off as or authorized by the Complainant to get business. As such this cannot amount to the bona fide offering of goods and services.
The Respondent has not answered this Complaint and has not provided any legitimate reason why it should be able to use the Complainant’s ADOBE mark in this way. As such the Panelist finds that the Respondent does not have rights or a legitimate interest in the Domain Name and that the Complainant has satisfied the second limb of the Policy.
Registration and Use in Bad Faith
As determined above the Respondent's use of the Domain Name is commercial and he is using it to make profit from competing services not associated with the Complainant in a confusing manner. The use of the Complainant’s logos on the site attached to the Domain Name indicates that the Respondent was aware of the Complainant and its rights, business and services.
Accordingly, the Panel holds that the Respondent has intentionally attempted to attract for commercial gain Internet users by creating likelihood of confusion with the Complainant’s trademarks as to the source, sponsorship, affiliation or endorsement of the web site attached to the Domain Name and services offered on it. See CAN Financial Corporation v. William Thomson/CAN Insurance, FA1401001541484 (Forum Feb. 28, 2014) (finding that Respondent had engaged in bad faith under Policy 4(b)(iv) by using a confusingly similar domain name to attract internet users where it offered competing services).
This also appears designed to disrupt the business of a competitor. See LoanDepot.com, LLC v. Kaolee (Kay) Vang-Thao, FA 1762308 (Forum Jan 9, 2018) (Finding that Respondent’s use of the disputed domain name to offer competing loan services disrupted Complainant’s business under Policy 4 (b)(iii).)
As such, the Panelist believes that the Complainant has made out its case that the Domain Name was registered and used in bad faith under ¶¶ 4(b)(iii) and (iv) and has satisfied the third limb of the Policy. There is no need to consider additional alleged grounds of bad faith.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <adobesupportnumbers.com> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: March 10, 2020
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