Arlo Technologies, Inc. v. Sahil Chandel
Claim Number: FA2110001969188
Complainant is Arlo Technologies, Inc. (“Complainant”), represented by Marcia Kerrigan, Nebraska, USA. Respondent is Sahil Chandel (“Respondent”), India.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <arlocalhelp.com>, registered with Wild West Domains, Llc; Wild West Domains, 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.
The Honourable Neil Anthony Brown QC as Panelist.
Complainant submitted a Complaint to the Forum electronically on October 15, 2021; the Forum received payment on October 15, 2021.
On October 18, 2021, Wild West Domains, Llc; Wild West Domains, LLC confirmed by e-mail to the Forum that the <arlocalhelp.com> domain name is registered with Wild West Domains, Llc; Wild West Domains, LLC and that Respondent is the current registrant of the name. Wild West Domains, Llc; Wild West Domains, LLC has verified that Respondent is bound by the Wild West Domains, Llc; Wild West Domains, 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 October 18, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 8, 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@arlocalhelp.com. Also on October 18, 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 November 12, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed The Honourable Neil Anthony Brown QC 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 made the following contentions.
Complainant is the leading manufacturer of smart connected devices, including wire-free smart Wi-Fi and LTE enabled cameras. Complainant has rights in the ARLO mark through its registration of the mark with the United States Patent and Trademark Office (“USPTO”) (e.g. Reg. No. 4,906,065, registered Feb. 23, 2016). See Compl. Ex. 5. Respondent’s <arlocalhelp.com> domain name is confusingly similar to Complainant’s ARLO mark. Respondent incorporates the mark in its entirety and adds the generic words “cal” and “help” along with the “.com” generic top-level domain (“gTLD”).
Respondent lacks rights or legitimate interests in the <arlocalhelp.com> domain name as Respondent is not commonly known by the disputed domain name nor did Complainant authorize Respondent to use the ARLO mark in any way. Respondent fails to make a bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent uses the ARLO mark to confuse internet users and offer products associated with Complainant’s mark.
Respondent registered and used the <arlocalhelp.com> domain name in bad faith as respondent attempts to confuse internet users that Respondent is associated with Complainant by offering products associated with Complainant’s ARLO mark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
1. Complainant is a United States company that is the leading manufacturer of smart connected devices, including wire-free smart Wi-Fi and LTE enabled cameras
2. Complainant has established its trademark rights in the ARLO mark through its registration of the mark with the United States Patent and Trademark Office (“USPTO”) (e.g. Reg. No. 4,906,065, registered Feb. 23, 2016).
3. Respondent registered the <arlocalhelp.com> domain name on October 30, 2020.
4.Respondent uses the ARLO mark to confuse internet users and offer products associated with Complainant’s mark.
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 first question that arises is whether Complainant has rights in a trademark or service mark on which it may rely. Complainant claims to have rights in the ARLO mark through its registration of the mark with the USPTO. Registration of a mark with the USPTO is sufficient to establish rights in a mark per Policy ¶ 4(a)(i). See Liberty Global Logistics, LLC v. damilola emmanuel / tovary services limited, FA 1738536 (Forum Aug. 4, 2017) (“Registration of a mark with the USPTO sufficiently establishes the required rights in the mark for purposes of the Policy.”). Here, Complainant has provided the Panel with a copy of its USPTO registration for the ARLO mark (e.g. Reg. No. 4,906,065, registered Feb. 23, 2016). See Compl. Ex. 5. Therefore, the Panel finds that Complainant has shown rights in the ARLO mark per Policy ¶ 4(a)(i).
The next question that arises is whether the disputed domain name is identical or confusingly similar to Complainant’s ARLO mark. Complainant argues that Respondent’s <arlocalhelp.com> domain name is confusingly similar to Complainant’s ARLO mark. Registration of a domain name that contains a mark in its entirety and adds generic words and a gTLD does not distinguish the domain name from the mark per Policy ¶ 4(a)(i). See Wiluna Holdings, LLC v. Edna Sherman, FA 1652781 (Forum Jan. 22, 2016) (finding the addition of a generic term and gTLD is insufficient in distinguishing a disputed domain name from a mark under Policy ¶ 4(a)(i)). Here, Complainant argues that Respondent incorporates the mark in its entirety and adds the generic words “cal” and “help” along with the “.com” gTLD. Therefore, the Panel agrees and finds that the domain name is confusingly similar to Complainant’s mark per Policy ¶ 4(a)(i).
Complainant has thus made out the first of the three elements that it must establish.
It is now well established that Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), then the burden shifts to Respondent to show it does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“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”).
The Panel finds that Complainant has made out a prima facie case that arises from the following considerations:
(a) Respondent has chosen to take Complainant’s famous ARLO trademark and to use it in its domain name, adding the generic words “cal” and “help” which do not negate the confusing similarity between the domain name and the trademark;
(b) Respondent registered the <arlocalhelp.com> domain name on October 30, 2020;
(c) Respondent uses the ARLO mark to confuse internet users and offer products associated with Complainant’s mark.
(d) Respondent has engaged in these activities without the consent or approval of Complainant;
(e) Complainant argues Respondent lacks rights or legitimate interest in the <arlocalhelp.com> domain name as Respondent is not commonly known by the disputed domain name nor has Respondent been given license or consent to use the ARLO mark or register a domain name using Complainant’s mark. Where a response is lacking, WHOIS information may be used to determine whether a respondent is commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Amazon Technologies, Inc. v. LY Ta, FA 1789106 (Forum June 21, 2018) (concluding a respondent has no rights or legitimate interests in a disputed domain name where the complainant asserted it did not authorize the respondent to use the mark, and the relevant WHOIS information indicated the respondent is not commonly known by the domain name). Additionally, lack of authorization to use a complainant’s mark may indicate that the respondent is not commonly known by the disputed 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 disputed domain name lists the registrant as “Sahil Chandel” and there is no other evidence to suggest that Respondent was authorized to use the ARLO mark or was commonly known by the disputed domain name. Therefore, the Panel finds Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii);
(f) Complainant argues that Respondent fails to make a bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent uses the ARLO mark to confuse internet users and offer products associated with Complainant’s mark. Use of a disputed domain name that makes use of a complainant’s mark that resolves to a webpage that offers products associated with the mark is not a bona fide offering of goods or services or legitimate noncommercial or fair use per Policy ¶ 4(c)(i) or (iii). See Ripple Labs Inc. v. NGYEN NGOC PHUONG THAO, FA 1741737 (Forum Aug. 21, 2017) (“Respondent uses the [disputed] domain name to divert Internet users to Respondent’s website… confusing them into believing that some sort of affiliation exists between it and Complainant… [which] is neither a bona fide offering of goods or services under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).”), see also Fadal Engineering, LLC v. DANIEL STRIZICH,INDEPENDENT TECHNOLOGY SERVICE INC, FA 1581942 (Forum Nov. 13, 2014) (finding that Respondent’s use of the disputed domain to sell products related to Complainant without authorization “does not amount to a bona fide offering of goods or services under policy ¶ 4(c)(i), or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).”). Here, Complainant has provided the Panel with screenshots of Respondent’s <arlocalhelp.com> domain name that show Complainant’s ARLO mark being referenced along with the products and services related to the mark. See Compl. Ex. 8. Therefore, the Panel finds that Respondent fails to make a bona fide offering of goods or services or legitimate noncommercial or fair use per Policy ¶ 4(c)(i) or (iii).
All of these matters go to make out the prima facie case against Respondent. As Respondent has not filed a Response or attempted by any other means to rebut the prima facie case against it, the Panel finds that Respondent has no rights or legitimate interests in the disputed domain name.
Complainant has thus made out the second of the three elements that it must establish.
It is clear that to establish bad faith for the purposes of the Policy, Complainant must show that the disputed domain name was registered in bad faith and has been used in bad faith. It is also clear that the criteria set out in Policy ¶ 4(b) for establishing bad faith are not exclusive, but that Complainants in UDRP proceedings may also rely on conduct that is bad faith within the generally accepted meaning of that expression.
Having regard to those principles, the Panel finds that the disputed domain name was registered and used in bad faith. That is so for the following reasons.
First, Complainant argues that Respondent registered and used the <arlocalhelp.com> domain name in bad faith as respondent attempts to confuse internet users that Respondent is associated with Complainant by offering products associated with Complainant’s ARLO mark. Use of a disputed domain name to cause consumer confusion by making use of a complainant’s mark and referencing products and services related to that mark may be evidence of bad faith per Policy ¶ 4(b)(iii) or (iv). See Ripple Labs Inc. v. Jessie McKoy / Ripple Reserve Fund, FA 1790949 (Forum July 9, 2018) (finding bad faith per Policy ¶¶ 4(b)(iii) and (iv) where the respondent used the disputed domain name to resolve to a website upon which the respondent passes off as the complainant and offers online cryptocurrency services in direct competition with the complainant’s business), see also Guess? IP Holder L.P. and Guess?, Inc. v. LI FANGLIN, FA 1610067 (Forum Apr. 25, 2015) (finding respondent registered and used the domain name in bad faith per Policy ¶ 4(b)(iii) because the respondent used the resolving website to sell the complainant’s products, using images copied directly from the complainant’s website), see also BBY Solutions, Inc. v. Grant Ritzwoller, FA 1703389 (Forum Dec. 21, 2016) (finding bad faith because the <bestbuyus.com> domain name was obviously connected with the complainant’s well-known BEST BUY mark, thus creating a likelihood of confusion strictly for commercial gain). Here, Complainant has provided the Panel with screenshots of Respondent’s <arlocalhelp.com> domain name that show Complainant’s ARLO mark being referenced along with the products and services related to the mark. See Compl. Ex. 8. Therefore, as the Panel agrees it finds that Respondent registered and used the disputed domain name in bad faith per Policy ¶ 4(b)(iii) and (iv).
Complainant has thus made out the third of the three elements that it must establish.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <arlocalhelp.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honourable Neil Anthony Brown QC
Panelist
Dated: November 15, 2021
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