A Place for Mom, Inc. v. Carolina Rodrigues / Fundacion Comercio Electronico
Claim Number: FA2109001964781
Complainant is A Place for Mom, Inc. (“Complainant”), represented by Ashly I. Boesche of Pattishall, McAuliffe, Newbury, Hilliard & Geraldson LLP, Illinois, USA. Respondent is Carolina Rodrigues / Fundacion Comercio Electronico (“Respondent”), Panama.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <aplaceforfmom.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.
Paul M. DeCicco, as Panelist.
Complainant submitted a Complaint to the Forum electronically on September 22, 2021; the Forum received payment on September 22, 2021.
On September 23, 2021, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <aplaceforfmom.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 September 27, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 18, 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@aplaceforfmom.com. Also on September 27, 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 October 22, 2021, 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, A Place for Mom, Inc., provides personalized and professional assistance to families in search of senior care options.
Complainant has rights in the A PLACE FOR MOM mark based upon registration with the United States Patent and Trademark Office (“USPTO”).
Respondent’s <aplaceforfmom.com> domain name is confusingly similar to Complainant’s A PLACE FOR MOM mark since it incorporates the entire mark, merely adding the letter “f” and the “.com” generic top-level domain (“gTLD”).
Respondent does not have rights or legitimate interests in the <aplaceforfmom.com> domain name because Respondent is not commonly known by the at-issue domain name and is not authorized, licensed, or otherwise permitted to use Complainant’s A PLACE FOR MOM 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 hosts third-party commercial hyperlinks at the at-issue domain.
Respondent registered and uses the <aplaceforfmom.com> domain name in bad faith. Respondent attracts users for commercial gain by hosting pay-per-click links at the domain’s website. Additionally, Respondent’s registration of the confusingly similar domain name amounts to typosquatting.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has rights in the A PLACE FOR MOM 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 A PLACE FOR MOM trademark.
Respondent uses the at-issue domain name to address a parking page that presents pay-per-click type hyperlinks.
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’s USPTO registration of its A PLACE FOR MOM mark establishes Complainant’s rights in such mark for the purposes of Policy 4(a)(i). See Haas Automation, Inc. v. Jim Fraser, FA 1627211 (Forum Aug. 4, 2015) (finding that Complainant’s USPTO registrations for the HAAS mark sufficiently demonstrate its rights in the mark under Policy ¶ 4(a)(i)).
The at-issue domain name contain Complainant’s A PLACE FOR MOM trademark less its spaces, with an extra “f” inserted between the mark’s “r” and “m.” The domain name is concluded with the top level domain name “.com.” The differences between Respondent’s <aplaceforfmom.com> domain name and Complainant’s A PLACE FOR MOM trademark are insufficient to distinguish the domain name from Complainant’s mark under Policy ¶ 4(a)(i). Therefore, the Panel finds that Respondent’s <aplaceforfmom.com> domain name is confusingly similar to Complainant’s A PLACE FOR MOM trademark. See Twitch Interactive, Inc. v. Antonio Teggi, FA 1626528 (Forum Aug. 3, 2015) (finding the <twitcch.tv> domain name confusingly similar to the TWITCH TV trademark because the domain name consisted of a common misspelling of the mark by merely adding the letter “c”); see also, Microsoft Corporation v. Thong Tran Thanh, FA 1653187 (Forum Jan. 21, 2016) (determining that confusing similarity exist where [a disputed domain name] contains Complainant’s entire mark and differs only by the addition of a generic or descriptive phrase and top-level domain, the differences between the domain name and its contained trademark are insufficient to differentiate one from the other for the purposes of the Policy.).
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. See Emerson Electric Co. v. golden humble / golden globals, FA 1787128 (Forum June 11, 2018) (“lack of evidence in the record to indicate a respondent is authorized to use [the] complainant’s mark may support a finding that [the] respondent does not have rights or legitimate interests in the disputed domain name per Policy ¶ 4(c)(ii)”).
The WHOIS information for the at-issue domain name ultimately identifies the domain name’s registrant as “Carolina Rodrigues / Fundacion Comercio Electronico” and the record before the Panel contains no evidence tending to prove that Respondent is commonly known by the <aplaceforfmom.com> domain name. The Panel therefore concludes that Respondent is not commonly known by the <aplaceforfmom.com> domain name for the purposes of Policy ¶ 4(c)(ii). See Braun Corp. v. Loney, FA 699652 (Forum July 7, 2006) (concluding that the respondent was not commonly known by the disputed domain names where the WHOIS information, as well as all other information in the record, gave no indication that the respondent was commonly known by the domain names, and the complainant had not authorized the respondent to register a domain name containing its registered mark).
Respondent uses the confusingly similar <aplaceforfmom.com> domain name to address a parking webpage displaying pay-per-click links to third-parties. Respondent’s use of the confusingly similar 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 Ferring B.V. v. Shanshan Huang / Melissa Domain Name Services, FA1505001620342 (Forum July 1, 2015) (“Placing unrelated third party links for the benefit of a respondent indicates a lack of a bona fide offering of goods or services, and a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(i) and Policy ¶ 4(c)(iii), respectively.”).
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).
Respondent’s <aplaceforfmom.com> domain name was registered and used in bad faith. As discussed below without limitation, bad faith circumstances are present which compel the Panel to conclude that Respondent acted in bad faith pursuant to paragraph 4(a)(iii) of the Policy.
As mentioned above regarding rights and legitimate interests, Respondent uses its confusingly similar <aplaceforfmom.com> domain name to display third party pay-per-click hyperlinks. Doing so shows Respondent’s bad faith registration and use of the at-issue domain name under Policy ¶ 4(b)(iv). See T-Mobile USA, Inc. v. utahhealth, FA 697821 (Forum June 7, 2006) (holding that the registration and use of a domain name confusingly similar to a complainant’s mark to direct Internet traffic to a commercial “links page” in order to profit from click-through fees or other revenue sources constitutes bad faith under Policy ¶ 4(b)(iv)).
Respondent is also engaged in typosquatting. Typosquatting is a practice whereby a domain name registrant deliberately introduces typographical errors or misspellings into a trademark and then uses the string in a domain name wishing and hoping that internet users will inadvertently type the malformed string when searching for products or services associated with the target trademark, or will otherwise confuse a misspelled trademark laden domain name with the target trademark and/or a domain name legitimately used by the mark holder. Here, in creating the at-issue domain name Respondent inserts an “f” into Complainant’s A PLACE FOR MOM trademark less its domain name impermissible spaces, and uses the resulting string to form a confusingly similar domain name which not only contains a misspelling of the mark but closely resembles Complainant’s active <aplaceformom.com> domain name and website. Respondent’s typosquatting, in itself, is evidence of Policy ¶ 4(a)(iii) bad faith. See Adorama, Inc. v. Moniker Privacy Services, FA1503001610020 (Forum May 1, 2015) (“Respondent has also engaged in typosquatting, which is additional evidence of bad faith registration and use under Policy ¶ 4(a)(iii).).
Finally, Respondent registered <aplaceforfmom.com> knowing that Complainant had trademark rights in the A PLACE FOR MOM mark. Respondent’s prior knowledge is evident from the notoriety of Complainant’s trademark and from the overtly mistyped version of Complainant’s mark in the at-issue domain name. Respondent’s prior knowledge of Complainant's trademark further indicates that Respondent registered and used the <aplaceforfmom.com> domain name in 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").
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <aplaceforfmom.com> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: October 22, 2021
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