Scooter’s Coffee, LLC v. Domain Administrator / Fundacion Privacy Services LTD
Claim Number: FA2011001919611
Complainant is Scooter’s Coffee, LLC (“Complainant”), represented by Ashley M. Bennett Ewald of LATHROP GPM, LLP, Minnesota, USA. Respondent is Domain Administrator / Fundacion Privacy Services LTD (“Respondent”), Panama.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <scooterscofee.com>, registered with Media Elite Holdings Limited.
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.
The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Complainant submitted a Complaint to the Forum electronically on November 5, 2020; the Forum received payment on November 5, 2020.
On November 9, 2020, Media Elite Holdings Limited confirmed by e-mail to the Forum that the <scooterscofee.com> domain name is registered with Media Elite Holdings Limited and that Respondent is the current registrant of the name. Media Elite Holdings Limited has verified that Respondent is bound by the Media Elite Holdings Limited 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 10, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 30, 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@scooterscofee.com. Also on November 10, 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 December 2, 2020, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed the Honorable Charles K. McCotter, Jr. (Ret.) 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, Scooter’s Coffee, LLC, is a coffee franchise business that has nearly 300 locations nationwide. Complainant has rights in the SCOOTER’S COFFEE mark based on registration with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 4,249,693, registered on November 27, 2012). Respondent’s <scooterscofee.com> domain name is confusingly similar to Complainant’s SCOOTER’S COFFEE mark because it simply removes the letter “F” and adds the “.com” generic top level domain (“gTLD”).
Respondent does not have rights or legitimate interests in the <scooterscofee.com> domain name. Respondent is not commonly known by the disputed domain name and is not affiliated with Complainant, nor has Complainant licensed or authorized Respondent to use the SCOOTER’S COFFEE mark. Additionally, Respondent does not use the disputed domain for any bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent uses the domain to host third-party hyperlinks.
Respondent registered and uses the <scooterscofee.com> domain name in bad faith. Respondent engages in typosquatting, which is itself evidence of bad faith. Additionally, Respondent has actual knowledge of Complainant’s rights in the SCOOTER’S COFFEE mark based on the registration and uniqueness of the mark and Respondent’s use of typosquatting.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant, Scooter’s Coffee, LLC, is a coffee franchise business that has nearly 300 locations nationwide. Complainant has rights in the SCOOTER’S COFFEE mark based on registration with the USPTO (e.g., Reg. No. 4,249,693, registered on November 27, 2012). Respondent’s <scooterscofee.com> domain name is confusingly similar to Complainant’s SCOOTER’S COFFEE mark.
Respondent registered the <scooterscofee.com> domain name on September 14, 2020.
Respondent does not have rights or legitimate interests in the <scooterscofee.com> domain name. Respondent uses the domain to host third-party hyperlinks.
Respondent registered and uses the <scooterscofee.com> 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”).
Complainant has rights in the SCOOTER’S COFFEE mark based on registration with the USPTO. See Brooks Sports, Inc. v. Joyce Cheadle, FA 1819065 (Forum Dec. 28, 2018) (finding that Complainant’s registration of the BROOKS mark with the USPTO sufficiently conferred its rights in the mark under Policy ¶ 4(a)(i).”).
Respondent’s <scooterscofee.com domain name is confusingly similar to Complainant’s SCOOTER’S COFFEE mark because it simply removes the letter “F” and adds the “.com” gTLD.
Respondent does not use the disputed domain name for any bona fide offering of goods or services or legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii). Instead, Respondent uses the domain to host third-party hyperlinks. See Bloomberg Finance L.P. v. Syed Hussain / Domain Management, FA1410001582912 (Forum Nov. 10, 2014) (concluding that the respondent’s use of the disputed domain name to host hyperlinks, unrelated to the complainant’s business, did not qualify as a bona fide offering of goods or services, or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(i) and Policy ¶ 4(c)(iii)).
Respondent registered and uses the <scooterscofee.com> domain name in bad faith because Respondent engages in typosquatting. Under Policy ¶ 4(a)(iii), typosquatting occurs when a respondent deliberately misspells a mark in a disputed domain name in order to take advantage of Internet users and is itself evidence of bad faith. See Homer TLC, Inc. v. Artem Ponomarev, FA1506001623825 (Forum July 20, 2015).
Additionally, Respondent had actual knowledge of Complainant’s rights in the SCOOTER’S COFFEE mark when registering and using the <scooterscofee.com> domain name. See Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum Feb. 6, 2014).
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 <scooterscofee.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: December 7, 2020
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