Pilot Travel Centers LLC v. Tripp Freeman / Pilot Travel Centers LLC
Claim Number: FA2105001945088
Complainant is Pilot Travel Centers LLC (“Complainant”), represented by Seth L. Hudson of Nexsen Pruet, PLLC, North Carolina, USA. Respondent is Tripp Freeman / Pilot Travel Centers LLC (“Respondent”), Alabama, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <pilottravelcenters.tech>, registered with Tucows Domains 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.
Debrett G. Lyons as Panelist.
Complainant submitted a Complaint to the Forum electronically on May 14, 2021; the Forum received payment on May 14, 2021.
On May 17, 2021, Tucows Domains Inc. confirmed by e-mail to the Forum that the <pilottravelcenters.tech> domain name is registered with Tucows Domains Inc. and that Respondent is the current registrant of the name. Tucows Domains Inc. has verified that Respondent is bound by the Tucows Domains 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 May 24, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 14, 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@pilottravelcenters.tech. Also on May 24, 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.
On June 15, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Debrett G. Lyons 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 asserts trademark rights in PILOT and PILOT TRAVEL CENTERS since it holds national registrations for those trademarks. Complainant submits that the domain name is confusingly similar to its trademarks.
Complainant alleges that Respondent has no rights or legitimate interests in the disputed domain name.
Complainant alleges that Respondent registered the disputed domain name in bad faith having targeted Complainant’s business.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The factual findings pertinent to the decision in this case are that:
1. Complainant provides truck stop services by reference to the trademarks PILOT and PILOT TRAVEL CENTERS;
2. Complainant owns United States Patent and Trademark Office (“USPTO”) Reg. No. 1,440,835, registered May 26, 1987 for PILOT and Canadian Intellectual Property Office (“CIPO”) Reg. No. TMA723541, registered September 12, 2008 for PILOT TRAVEL CENTERS;
3. there is no relationship between the parties and Complainant has not authorized Respondent to use its trademarks or register any domain name incorporating the trademarks;
4. the disputed domain name was registered on January 31, 2021 and resolves to a purported log-in page using indicia of 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 based on 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 and inferences set forth in the Complaint as true unless the evidence is clearly contradictory[i].
Paragraph 4(a)(i) of the Policy requires a two-fold enquiry—a threshold investigation into whether a complainant has rights in a trademark, followed by an assessment of whether the disputed domain name is identical or confusingly similar to that trademark.
Paragraph 4(a)(i) of the Policy does not distinguish between registered and unregistered trademark rights. It is well established by decisions under this Policy that a trademark registered with a national authority is evidence of trademark rights[ii]. Complainant provides evidence of national registrations for the trademarks PILOT and PILOT TRAVEL CENTERS and so the Panel finds that Complainant has rights in those trademarks.
The Panel need only compare the disputed domain name with the trademark, PILOT TRAVEL CENTERS. The domain name takes the trademark to which it merely adds the “.tech” gTLD. The Panel finds the disputed domain name to be identical to the trademark for the purposes of paragraph 4(a)(i) of the Policy[iii].
Accordingly, Complainant has satisfied the first element of the Policy.
Paragraph 4(c) of the Policy states that any of the following circumstances, in particular but without limitation, if found by the Panel to be proved, based on its evaluation of all evidence presented, shall demonstrate rights or legitimate interests to a domain name for purposes of paragraph 4(a)(ii) of the Policy:
(i) before any notice to you of the dispute, your use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) you (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or
(iii) you are making a legitimate non-commercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
Complainant need only make out a prima facie case that Respondent has no rights or legitimate interests in the disputed domain name, after which the onus shifts to Respondent to rebut that case by demonstrating those rights or interests[iv].
The Registrar advised the Forum that the domain name holder is Tripp Freeman and that the registrant organization is Pilot Travel Centers LLC. Whilst this may, in other circumstances, indicate that Respondent is commonly known by the disputed domain name, the totality of the evidence in these proceedings suggests to the Panel that the name, Pilot Travel Centers LLC, is not that of an actual registered company but merely a fictitious name intended to create the false impression of a legitimate interest in the domain name.[v]
Complainant provides a screenshot of the webpage resolving from the disputed domain, entitled “Employee Login” and showing a logo-style mark, “PILOT Flying”. Complainant asserts that this webpage is intended to fraudulently obtain login credentials from Complainant’s employees. Clearly, this seemingly nefarious use of the disputed domain name does not give rise to rights or a legitimate interest.
The Panel finds that Complainant has made a prima facie case that Respondent has no rights or legitimate interests in the disputed domain name. The onus shifts to Respondent to establish a legitimate interest and, absent a Response, that prima facie case is not rebutted. The Panel finds that Respondent has no rights or interests and so finds that Complainant has satisfied this second limb of the Policy.
Complainant must prove on the balance of probabilities both that the disputed domain name was registered and used in bad faith.
Guidance is found in paragraph 4(b) of the Policy which sets out four circumstances, any one of which is taken to be evidence of the registration and use of a domain name in bad faith if established.
The four specified circumstances are:
(i) circumstances indicating that the respondent has registered or acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of the respondent’s documented out-of-pocket costs directly related to the domain name; or
(ii) the respondent has registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that Respondent has engaged in a pattern of such conduct; or
(iii) the respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, respondent has intentionally attempted to attract, for commercial gain, Internet users to respondent’s website or other on-line location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the respondent’s website or location or of a product or service on the site or location.
The Panel finds that paragraph 4(b)(iv) has direct application. The Panel has already found the disputed domain name to be confusingly similar to the trademark; its very nature falsely suggests that the resolving online location is associated with Complainant. The Panel finds registration in bad faith under the Policy. Further, in terms of the Policy the Panel finds that Respondent has intentionally used the domain name to attract, for commercial gain, Internet users to the resolving webpage by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of that page. The Panel finds registration and use in bad faith and so finds that Complainant has satisfied the third and final element of the Policy[vi].
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <pilottravelcenters.tech> domain name be TRANSFERRED from Respondent to Complainant.
Debrett G. Lyons, Panelist
Date: June 18, 2021
[i] See, for example, Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Forum July 31, 2000) holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true; Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”)
[ii] See, for example, State Farm Mut. Auto. Ins. Co. v. Periasami Malain, FA 705262 (Forum June 19, 2006) (“Complainant’s registrations with the United States Patent and Trademark Office of the trademark, STATE FARM, establishes its rights in the STATE FARM mark pursuant to Policy, paragraph 4(a)(i).”)
[iii] See, for example, Reebok Int’l Ltd. v. Ohno, FA 511463 (Forum Aug. 23, 2005) finding <reebok.net> identical to the complainant’s REEBOK mark.
[iv] See, for example, Do The Hustle, LLC v. Tropic Web, D2000‑0624 (WIPO Aug. 21, 2000).
[v] See, for example, Ripple Labs Inc. v. Jessie McKoy / Ripple Reserve Fund, FA 1790949 (Forum July 9, 2018) finding that, although the respondent listed itself as “Jessie McKoy / Ripple Reserve Fund” in the WHOIS contact information, it did not provide any affirmative evidence to support this identity; combined with the fact that the complainant claimed it did not authorize the respondent to use the mark, the respondent is not commonly known by the domain name”; Google Inc. v. S S / Google International, FA1506001625742 (Forum Aug. 4, 2015) (“Respondent did identify itself as ‘Google International’ in connection with its registration of the Disputed Domain Name, and this is reflected in the WHOIS information. However, Respondent has not provided affirmative evidence from which the Panel can conclude that Respondent was commonly known by the Disputed Domain Name before Respondent’s registration thereof.”); UBS Group AG v. Aleksandar Lasica / UBS Ultimate Business Services Ltd, FA2103001939618 (Forum Apr. 28, 2021) (“there is nothing to corroborate that Respondent is commonly known by the disputed domain name and the Panel takes the view that Respondent has manufactured a bogus trading name which assumes the same initial letters as the trademark.”).
[vi] See, for example, Bittrex, Inc. v. Wuxi Yilian LLC, FA 1760517 (Forum Dec. 27, 2017) finding bad faith per Policy ¶ 4(b)(iv) where “Respondent registered and uses the <lbittrex.com> domain name in bad faith by directing Internet users to a website that mimics Complainant’s own website in order to confuse users into believing that Respondent is Complainant, or is otherwise affiliated or associated with Complainant.”)
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