Copart, Inc. v. MOHAMED FAWZY
Claim Number: FA2003001887296
Complainant is Copart, Inc. (“Complainant”), represented by Ellie Sowanick, Texas, USA. Respondent is MOHAMED FAWZY (“Respondent”), Florida, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <copartus.com> (the “disputed 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.
Lynda M. Braun as Panelist.
Complainant submitted a Complaint to the Forum electronically on March 6, 2020; the Forum received payment on March 6, 2020.
On March 9, 2020, Godaddy.Com, Llc confirmed by e-mail to the Forum that the <copartus.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 March 11, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 31, 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@copartus.com. Also on March 11, 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 April 2, 2020, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Lynda M. Braun 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, a publicly traded company with a market capitalization of over $20 billion, is an industry leader of online vehicle auction and remarketing services with operations worldwide. Today, Complainant has more than 200 locations in 11 jurisdictions worldwide, including at least one location in almost every state in the United States. Each day, Complainant lists over 175,000 vehicles for auction and sells over two million vehicles per year. For more than 35 years, Complainant has been providing goods and services related to the Complainant’s online vehicle auction resale and remarketing of vehicles under the trademark COPART, including with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 2,802,136, registered Jan. 6, 2004) (hereinafter the “COPART Mark”).
Respondent’s <copartus.com> disputed domain name is identical or confusingly similar to Complainant’s COPART Mark as it contains the COPART Mark in its entirety and merely adds the generic abbreviation “us” and the “.com” generic top-level domain (“gTLD”).
Respondent lacks rights or legitimate interests in the <copartus.com> disputed domain name, is not commonly known by the disputed domain name and is not authorized or permitted to use Complainant’s COPART Mark. Additionally, Respondent fails to use the disputed domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use. Rather, Respondent uses the disputed domain name to offer competing services to Internet users. Respondent registered and is using the <copartus.com> disputed domain name in bad faith. Respondent attempted to sell the disputed domain name to Complainant for an amount in excess of out-of-pocket costs. In addition, Respondent disrupted Complainant’s business by impersonating Complainant in order to divert and confuse Internet users for commercial gain.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant holds trademark rights in the COPART Mark. Complainant has established that the disputed domain name is confusingly similar to Complainant’s COPART Mark, Respondent lacks rights or legitimate interests in the disputed domain name, and Respondent registered and is using the disputed domain name 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 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 Panel concludes that Complainant has rights in the COPART Mark based upon registration of the COPART Mark with the USPTO, as referenced above. Registration of a mark with the USPTO confers upon a complainant trademark rights for purposes of the Policy ¶ 4(a)(i). See Liberty Global Logistics, LLC v. damilola emmanuel / tovary services limited, FA 1738536 (Forum Aug. 4, 2017) (“Registration of a mark with the USPTO sufficiently establishes the required rights in the mark for purposes of the Policy.”).
Respondent’s <copartus.com> disputed domain name is confusingly similar to the COPART Mark under Policy ¶ 4(a)(i). The disputed domain name incorporates the COPART Mark in its entirety followed by the generic “us” abbreviation, followed by the gTLD “.com”.
The addition of a generic or descriptive term and a gTLD to an otherwise recognizable mark may not sufficiently distinguish the disputed domain name from a complainant’s trademark under Policy ¶ 4(a)(i). See Bloomberg Finance L.P. v. Nexperian Holding Limited, FA 1782013 (Forum June 4, 2018) (“Where a relevant trademark is recognizable within a disputed domain name, the addition of other terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) does not prevent a finding of confusing similarity under the first element.”).
Complainant argues that Respondent holds no rights or legitimate interests in the disputed domain name. In order for Complainant to succeed under this element, it must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), and then the burden shifts to Respondent to show that it does have rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006) and AOL LLC v. Gerberg, FA 780200 (Forum Sept. 25, 2006) (“Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.”). Here, the Panel holds that Complainant has made out a prima facie case.
Respondent has no rights or legitimate interests in the disputed domain name as Respondent has not provided evidence nor proven that it is commonly known by the disputed domain name, nor has Complainant authorized Respondent to use the COPART Mark. Respondent has no relationship, affiliation, connection, endorsement or association with Complainant.
Further, Respondent fails to use the disputed domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use because Respondent uses the disputed domain name to offer competing services on the website to which the disputed domain name resolves. Where a respondent’s use of a disputed domain name is to offer for sale competing services, the respondent fails to make a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii). See General Motors LLC v. MIKE LEE, FA 1659965 (Forum Mar. 10, 2016) (finding that “use of a domain to sell products and/or services that compete directly with a complainant’s business does not constitute a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).”). Here, Respondent uses the disputed domain name to create confusion among Internet users and lure them to Respondent’s website for Respondent’s own commercial gain. In support of this proposition, screenshots of the disputed domain name’s resolving website, were provided as an annex to the Complaint.
Accordingly, the Panel finds that Policy ¶ 4(a)(ii) has been established by Complainant.
The Panel concludes that Respondent registered and is using the disputed domain name in bad faith.
First, the use of a domain name to intentionally attempt to attract Internet users to a respondent’s website or online location by creating a likelihood of confusion with a complainant’s mark as to the source, sponsorship, affiliation or endorsement of the registrant’s website or online location demonstrates registration and use in bad faith. Bad faith under Policy ¶ 4(b)(iv) can be found where a respondent uses a confusingly similar domain name to falsely indicate an association with a complainant. See AOL LLC v. iTech Ent, LLC, FA 726227 (Forum July 21, 2006). This is especially true where, as here, Respondent registered the disputed domain name to pose as Complainant in order to sell competing services. In addition, Respondent’s use of the exact stylization of the COPART Mark and listing of the same address as the one for Complainant on Respondent’s website led Complainant’s customers to believe that the website was sponsored by, or was affiliated with, the Complainant.
Second, the Panel finds that Respondent registered and used the <copartus.com> disputed domain name in bad faith because Respondent initially offered the disputed domain name for sale to Complainant for $2,000. Intent to sell a disputed domain name can be evidence of bad faith registration and use under Policy ¶ 4(b)(i). See Capital One Financial Corp. v. haimin xu, FA 1819364 (Forum Jan. 8, 2019) (“A general offer to sell a domain name can be evidence the respondent intended to make such an offer at the time it registered the name, supporting a finding of bad faith per Policy ¶ 4(b)(i).”). Moreover, attempting to sell the domain name for excess of out-of-pocket costs suggests bad faith registration and use under Policy ¶ 4(b)(i). Ultimately, Respondent demanded $40,000 from Complainant for purchase of the disputed domain name, certainly far in excess of Respondent’s out-of-pocket registration costs. Thus, the Panel finds that such conduct constitutes bad faith under Policy ¶4(b)(i).”).
Accordingly, the Panel finds that Policy ¶ 4(a)(iii) has been established by Complainant.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <copartus.com> disputed domain name be TRANSFERRED from Respondent to Complainant.
Lynda M. Braun, Panelist
Dated: April 6, 2020
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