United Parcel Service of America, Inc. v. cornelle kacy
Claim Number: FA2006001898861
Complainant is United Parcel Service of America, Inc. (“Complainant”), represented by Sabina A. Vayner, Georgia, USA. Respondent is cornelle kacy (“Respondent”), Cameroon.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <upsglobaldeliverylogistics.com>, registered with NameCheap, Inc..
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.
Paul M. DeCicco, as Panelist.
Complainant submitted a Complaint to the Forum electronically on June 3, 2020; the Forum received payment on June 3, 2020.
On June 4, 2020, NameCheap, Inc. confirmed by e-mail to the Forum that the <upsglobaldeliverylogistics.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 June 5, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 25, 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@upsglobaldeliverylogistics.com. Also on June 5, 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 June 30, 2020, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Paul M. DeCicco 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 contends as follows:
Complainant, United Parcel Service of America, Inc., is a logistics, transportation, shipping, and delivery company.
Complainant has rights in the UPS mark based upon registration with the United States Patent and Trademark Office (“USPTO”).
Respondent’s <upsglobaldeliverylogistics.com> domain name is confusingly similar to Complainant’s mark since it includes Complainant’s mark in its entirety, simply adding the descriptive terms “global,” “delivery,” and “logistics,” and the “.com” generic top-level domain (“gTLD”).
Respondent does not have rights or legitimate interests in the <upsglobaldeliverylogistics.com> domain name because Respondent is not commonly known by the at-issue domain name and does not have permission to use Complainant’s UPS mark. Additionally, Respondent fails to use the domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use. Instead, Respondent uses the domain name to pass off as Complainant and promote competing services.
Respondent registered and uses the <upsglobaldeliverylogistics.com> domain name in bad faith. Respondent diverts Internet traffic from Complainant’s website by promoting services which compete with Complainant. Additionally, Respondent had actual knowledge of Complainant’s rights in the UPS mark at the time of registration.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has rights in the UPS trademark.
Respondent is not affiliated with Complainant and had not been authorized to use Complainant’s trademark in any capacity.
Respondent registered the at‑issue domain name after Complainant acquired rights in the UPS trademark.
Respondent uses the <upsglobaldeliverylogistics.com> domain name to promote Respondent’s shipping, delivery, and logistics services which, if actually offered, directly compete with Complainant’s business. In any case, Respondent uses the domain name and its associated website to collect information from Complainant’s potential customers and other members of the public who mistakenly visit the website believing it is sponsored by, or otherwise related to, 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”).
The at-issue domain is confusingly similar to a trademark in which Complainant has rights.
Complainant shows that it has at least one USPTO registration for its UPS trademark. Such registration is sufficient to demonstrate Complainant’s rights in the UPS mark under Policy ¶ 4(a)(i). See Microsoft Corp. v. Burkes, FA 652743 (Forum Apr. 17, 2006) (“Complainant has established rights in the MICROSOFT mark through registration of the mark with the USPTO.”).
Respondent’s <upsglobaldeliverylogistics.com> domain name contains Complainant’s UPS trademark, followed by the descriptive terms “global delivery logistics” with all followed by the top-level domain name “.com”. The differences between Respondent’s domain name and Complainant’s trademark are insufficient to distinguish the <upsglobaldeliverylogistics.com> domain name from Complainant’s UPS trademark for the purposes of Policy ¶ 4(a)(i). Therefore, the Panel concludes that Respondent’s <upsglobaldeliverylogistics.com> domain name is confusingly similar to Complainant’s UPS trademark. See The Toronto-Dominion Bank v. George Whitehead, FA 1784412 (Forum June 11, 2018) (“[S]light differences between domain names and registered marks, such as the addition of words that describe the goods or services in connection with the mark and gTLDs, do not distinguish the domain name from the mark incorporated therein per Policy ¶ 4(a)(i).”).
Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006). Since Respondent failed to respond, Complainant’s prima facie showing acts conclusively.
Respondent lacks both rights and legitimate interests in respect of the at-issue domain name. Respondent is not authorized to use Complainant’s trademark in any capacity and, as discussed below, there are no Policy ¶ 4(c) circumstances from which the Panel might find that Respondent has rights or interests in respect of the at‑issue domain name.
The WHOIS information for the at-issue domain name identifies the domain name’s registrant as “cornelle kacy” and the record before the Panel contains no evidence tending to prove that Respondent is commonly known by the <upsglobaldeliverylogistics.com> domain name. The Panel therefore concludes that Respondent is not commonly known by the <upsglobaldeliverylogistics.com> domain name for the purposes of Policy ¶ 4(c)(ii). See H - D U.S.A., LLC, v. ilyas Aslan / uok / Domain Admin ContactID 5645550 / FBS INC / Whoisprotection biz, FA 1785313 (Forum June 25, 2018) (“The publicly available WHOIS information identifies Respondent as ‘Ilyas Aslan’ and so there is no prima facie evidence that Respondent might be commonly known by either of the [<harleybot.bid> and <harleybot.com>] domain names”); see also, 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.).
Furthermore, Respondent uses the domain name to pass itself off as Complainant so that it may purportedly offer services that compete with those offered by Complainant and further collect information from Complainant’s potential customers and others. Respondent’s use of the at-issue domain name in this manner indicates neither a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor a non-commercial or fair use pursuant to Policy ¶ 4(c)(iii). See Vanguard Trademark Holdings USA LLC v. Dan Stanley Saturne, FA 1785085 (Forum June 8, 2018) (“Respondent’s use of the disputed domain name does not amount to a bona fide offering of goods or services or a legitimate noncommercial or fair use” where “Respondent is apparently using the disputed domain name to offer for sale competing services.”); see also, Summit Group, LLC v. LSO, Ltd., FA 758981 (Forum Sept.14, 2006) (finding that the respondent’s use of the complainant’s LIFESTYLE LOUNGE mark to redirect internet users to respondent’s own website for commercial gain does not constitute a bona fide offering of goods or services pursuant to UDRP ¶ 4(c)(i)).
Given the forgoing, Complainant satisfies its initial burden and conclusively demonstrates Respondent’s lack of rights and lack of interests in respect of the at-issue domain name under Policy ¶ 4(a)(ii).
The at-issue domain name was registered and is being used in bad faith. As discussed below without limitation, there is evidence from which the Panel may conclude that Respondent acted in bad faith pursuant to Policy ¶ 4(a)(iii).
As mentioned above regarding rights and interests, Respondent uses the at-issue domain name to compete with Respondent and/or collect information from Complainant’s potential customers and others. Respondent’s use of the confusingly similar <upsglobaldeliverylogistics.com> domain name creates confusion as to the sponsorship of the domain name and is disruptive to Complainant’s business and thereby indicates Respondent’s bad faith pursuant to Policy ¶ 4(b)(iii) and (iv). See LoanDepot.com, LLC v. Kaolee (Kay) Vang-Thao, FA1762308 (Forum Jan. 9, 2018) (Finding that Respondent’s use of the disputed domain name to offer competing loan services disrupts Complainant’s business under Policy ¶ 4(b)(iii)); see also CAN Financial Corporation v. William Thomson / CNA Insurance, FA1401001541484 (Forum Feb. 28, 2014) (finding that the respondent had engaged in bad faith under Policy ¶ 4(b)(iv), by using a confusingly similar domain name to attract Internet users to its own website where it sold competing insurance services).
Additionally, Respondent had actual knowledge of Complainant’s rights in the UPS mark when it registered <upsglobaldeliverylogistics.com> as a domain name. Respondent’s actual knowledge is evident from the notoriety of Complainant’s UPS trademark and from Respondent’s inclusion of terms related to Complainant’s logistic business within the at-issue domain name. Respondent’s registration and use of a confusingly similar domain name with knowledge of Complainant’s trademark rights in such domain name shows Respondent’s bad faith pursuant to Policy ¶ 4(a)(iii). See Minicards Vennootschap Onder FIrma Amsterdam v. Moscow Studios, FA 1031703 (Forum Sept. 5, 2007) (holding that respondent registered a domain name in bad faith under Policy ¶ 4(a)(iii) after concluding that respondent had actual knowledge of Complainant's mark when registering the disputed domain name); 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).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <upsglobaldeliverylogistics.com> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: June 30, 2020
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