A Place for Mom, Inc. v. Maria Kang
Claim Number: FA2104001941435
Complainant is A Place for Mom, Inc. (“Complainant”), represented by Ashly I. Boesche of Pattishall, McAuliffe, Newbury, Hilliard & Geraldson LLP, Illinois, USA. Respondent is Maria Kang (“Respondent”), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <aplaceforemom.com>, registered with GoDaddy.com, LLC.
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.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on April 14, 2021; the Forum received payment on April 14, 2021.
On April 15, 2021, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <aplaceforemom.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 April 19, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 10, 2021 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@aplaceforemom.com. Also on April 19, 2021, 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. However, Respondent did send emails to the Forum, see below.
On May 12, 2021, 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, since 2000, it has provided personal and professional assistance to families in search of senior care options in the United States and Canada. Complainant has rights in the A PLACE FOR MOM mark through its registration of the mark in the United States in 2005.
Complainant alleges that the disputed domain name is confusingly similar to its A PLACE FOR MOM mark as it incorporates the mark in its entirety, simply inserting the letter “e” after the work “for”, and adding the “.com” generic top-level domain (“gTLD”). Complainant cites UDRP precedents to support its position.
According to Complainant, Respondent lacks rights or legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name, nor has Respondent been authorized by Complainant to use the A PLACE FOR MOM mark. Additionally, Respondent has not used the disputed domain name in connection with a bona fide offering of goods or services or legitimate noncommercial or fair use as Respondent uses the disputed domain name to direct consumers to its own website where it offers competing services. Furthermore, Respondent has participated in typosquatting. Complainant cites UDRP precedents to support its position.
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith. Respondent uses the disputed domain name to compete directly with Complainant. Additionally, Respondent engages in typosquatting. Finally, Respondent registered the disputed domain name with constructive and actual knowledge of Complainant’s rights in the A PLACE FOR MOM mark. Complainant cites UDRP precedents to support its position.
B. Respondent
Respondent failed to submit a Response in this proceeding. In its emails to the Forum, Respondent alleges that it submitted a Response, however, in emails replying to Respondent, the Forum states that it did not receive a formal Response. In addition, Respondent states in its emails, in pertinent part: “I am a small business owner … . … I refuse to take part in this panel, nor pay for it as we do not have the funds to do so. I feel this is a bullying campaign considering a site was LIVE for 3 days and immediately removed. No profits were lost or made.”
Complainant has rights in the mark A PLACE FOR MOM dating back to 2005 and uses it to provide assistance to families in search of senior care options.
The disputed domain name was registered in 2021.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
Respondent used the disputed domain names to resolve to a website that competes directly with 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 disputed domain name consists of a misspelling of Complainant’s A PLACE FOR MOM mark (the letter “e” is added after the word “for”), with the addition of the “.com” gTLD. The addition of a letter and gTLD to a mark fails to sufficiently distinguish a disputed domain name from a mark per Policy ¶ 4(a)(i). See Staples, Inc. v. lin yanxiao, FA 1617686 (Forum June 4, 2015) (finding that the <stapeles.com> domain name is confusingly similar to the STAPLES mark, as it merely adds the letter “e” and the gTLD “.com” to Complainant’s mark). Therefore, the Panel find that the disputed domain name is confusingly similar to Complainant’s 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: when no response is submitted, WHOIS information can be used to show that a respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Bittrex, Inc. v. Operi Manaha, FA 1815225 (Forum Dec. 10, 2018) (concluding that the respondent was not commonly known by the <appbittrex.com> domain names where the WHOIS information listed Respondent as “Operi Manaha,” and nothing else in the record suggested Respondent was authorized to use the BITTREX mark.). Here, the WHOIS information provided by the registrar lists the registrant as “Maria Kang”. Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii).
Respondent used the disputed domain name to offer services that compete directly with Complainant. The use of a disputed domain name to offer competing goods or services may not be a bona fide offering of goods or services or legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (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.”). Therefore, the Panel finds that Respondent fails to use the disputed domain name to make a bona fide offering of goods or services or legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii).
Furthermore, Respondent has participated in typosquatting, by merely inserting the letter “e” in Complainant’s mark in order to form the disputed domain name. The use of typosquatting may demonstrate that the Respondent lacks rights or legitimate interests per Policy ¶ 4(a)(ii). See Webster Financial Corporation and Webster Bank, National Assocation v. Pham Dinh Nhut, FA1502001605819 (Forum Apr. 17, 2015) (“Respondent’s acts of typosquatting provide additional evidence that respondent lacks rights and legitimate interests in the disputed domain names pursuant to Policy ¶ 4(a)(ii).”).
For all the above reasons, the Panel finds that Respondent lacks rights or legitimate interests in the disputed domain name.
Respondent 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 used the disputed domain name to offer services that directly compete with Complainant. Using a disputed domain name to offer goods or services in direct competition with those offered by a complainant may be indicative of bad faith per Policy ¶¶ 4(b)(iii) and/or (iv). See Fitness International, LLC v. ALISTAIR SWODECK / VICTOR AND MURRAY, FA1506001623644 (Forum July 9, 2015) (“Respondent uses the at-issue domain name to operate a website that purports to offer health club related services such as fitness experts, fitness models, fitness venues, exercise programs, and personal training, all of which are the exact services offered by Complainant. Doing so causes customer confusion, disrupts Complainant’s business, and demonstrates Respondent’s bad faith registration and use of the domain name pursuant to 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). Therefore, the Panel finds that Respondent registered and used the disputed domain name in bad faith per Policy ¶¶ 4(b)(iii) and/or (iv).
Further, also as already noted, Respondent engaged in typosquatting. Typosquatting itself is considered evidence of bad faith under Policy ¶ 4(a)(iii). See Cost Plus Management Services, Inc. v. xushuaiwei, FA 1800036 (Forum Sept. 7, 2018) (“Typosquatting itself is evidence of relevant bad faith registration and use.”); see also Webster Financial Corporation and Webster Bank, National Association v. IS / ICS INC, FA 16070016833 (Forum Aug. 11, 2016) (“Typosquatting is a practice whereby a domain name registrant, such as Respondent, deliberately introduces typographical errors or misspellings into a trademark and then uses the string in a domain name. The conniving registrant wishes and hopes that Internet users will inadvertently type the malformed trademark or read the domain name and believe it is legitimately associated with the target trademark. In doing so, wayward Internet users are fraudulently directed to a web presence controlled by the confusingly similar domain name’s registrant.”). Therefore, the Panel finds that Respondent registered and uses the disputed domain name in bad faith per 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 <aplaceforemom.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: May 13, 2021
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