Radial, Inc. v. Kevin N. Beck
Claim Number: FA2110001970631
Complainant is Radial, Inc. (“Complainant”), represented by Matthew A. Homyk of Blank Rome LLP, Pennsylvania, USA. Respondent is Kevin N. Beck (“Respondent”), Illinois, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <radialogistics.com>, registered with NameCheap, Inc..
The undersigned certify that they have acted independently and impartially and to the best of their knowledge have no known conflict in serving as Panelists in this proceeding.
Hon. Karl V. Fink (Ret). (Chair); Debrett Gordon Lyons and Carol Stoner as Panelists.
Complainant submitted a Complaint to the Forum electronically on October 26, 2021; the Forum received payment on October 26, 2021.
On October 26, 2021, NameCheap, Inc. confirmed by e-mail to the Forum that the <radialogistics.com> domain name is registered with NameCheap, Inc. and that Respondent is the current registrant of the name. NameCheap, Inc. has verified that Respondent is bound by the NameCheap, 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 October 27, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 16, 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@radialogistics.com. Also on October 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 November 22, 2021, pursuant to Complainant’s request to have the dispute decided by a three-member Panel, the Forum appointed Hon. Karl V. Fink (Ret). (Chair); Debrett Gordon Lyons and Carol Stoner as Panelists.
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 owns and operates a leading commerce service which engages in order fulfillment, logistics management, retail customer service, retail technology development, and software as a service (SaaS) services. Complainant has rights in the RADIAL mark through its registration of the mark with multiple trademark agencies, including the United States Patent and Trademark Office (USPTO). Respondent’s <radialogistics.com> domain name is identical or confusingly similar to Complainant’s RADIAL mark as it contains the RADIAL mark in its entirety and merely adds the term “-ogistics” and the “.com” generic top-level domain (“gTLD”).
Respondent lacks rights or legitimate interests in the <radialogistics.com> domain name. Respondent does not conduct any business under the RADIAL mark, nor has Complainant authorized or licensed to Respondent any rights in the RADIAL mark. Respondent fails to use the disputed domain name in connection with a bona fide offering of goods or services or legitimate noncommercial or fair use as Respondent seems to intend solely to redirect Complainant’s consumers away from RADIAL.
Respondent registered and uses the <radialogistics.com> domain name in bad faith. Respondent registered the disputed domain name with actual knowledge of Complainant’s rights in the RADIAL mark based on Respondent’s use of the RADIAL marks.
B. Respondent
Respondent failed to submit a Response in this proceeding.
After reviewing Complainant’s and Respondent’s submissions, the Panel finds the following:
(1) the domain name registered by Respondent is confusingly similar to a mark in which Complainant has established trademark rights;
(2) Respondent has 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.
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 asserts rights in the RADIAL mark through its registration of the mark with the multiple trademark agencies, including the USPTO. Registration of a mark with a trademark agency is sufficient to demonstrate rights in the mark per Policy ¶ 4(a)(i). See Alibaba Group Holding Limited v. YINGFENG WANG, FA 1568531 (Forum Aug. 21, 2014) (“Complainant has rights in the ALIBABA mark under the Policy through registration with trademark authorities in numerous countries around the world.”); see also Bloomberg Finance L.P. v. Jimmy Yau, FA 1764034 (Forum Jan. 25, 2018) (“The Panel finds that complainant has rights in BLOOMBERG mark under Policy ¶ 4(a)(i) based upon its registration with multiple trademark agencies, including the USPTO.”).The Panel has viewed Complainant’s Exhibit B, wherein Complainant has received a registration on November 29, 2016, for the mark RADIAL. Therefore, the Panel finds that Complainant has demonstrated rights in the RADIAL mark per Policy ¶ 4(a)(i).
Complainant argues that the domain name is identical or confusingly similar to Complainant’s RADIAL mark as it contains the RADIAL mark in its entirety and merely adds the term “-ogistics” and the “.com” generic top-level domain (“gTLD”). The addition of a generic or descriptive term and a gTLD fails to sufficiently distinguish a disputed domain name from a mark per Policy ¶ 4(a)(i). See Microsoft Corporation v. Thong Tran Thanh, FA 1653187 (Forum Jan. 21, 2016) (determining that confusing similarity exists 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). The Panel finds that the domain name is confusingly similar to Complainant’s mark per Policy ¶ 4(a)(i).
Complainant has proved this element.
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 Complainant has made a prima facie case.
Complainant contends Respondent lacks rights or legitimate interests in the <radialogistics.com> domain name, as Respondent does not conduct any business under the RADIAL mark, nor has Complainant authorized or licensed to Respondent any rights in the RADIAL mark. Under Policy ¶ 4(c)(ii), where a response is lacking, relevant WHOIS information may demonstrate that a Respondent is not commonly known by a disputed domain name, while a lack of evidence demonstrating otherwise may affirm a Complainant’s assertion that it never authorized or licensed Respondent to use its mark in the disputed domain name. See PragmaticPlay Limited v. Robert Chris, FA2102001932464 (Forum Mar. 23, 2021) (“The WHOIS information of record lists the registrant as “Robert Chris,” and no other information of record suggests Respondent is commonly known by the domain name. Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).”). In consequence of these administrative proceedings the Registrar disclosed the name of the underlying domain name holder as “Kevin N Beck” which does not suggest that Respondent might be known by the domain name. Nothing in the record rebuts Complainant’s assertion that it never authorized or licensed Respondent to use its RADIAL mark in the disputed domain name. The Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).
Complainant argues that Respondent does not use the <radialogistics.com> domain name for any bona fide offering of goods or services, nor any legitimate noncommercial or fair use. Under Policy ¶¶ 4(c)(i) and (iii), using a disputed domain name to redirect internet users to a resolving website where Respondent passes off as a Complainant and offers related or competing services is not considered a bona fide offering of goods or services, nor a legitimate noncommercial or fair use. See Am. Int’l Group, Inc. v. Busby, FA 156251 (Forum May 30, 2003) (finding that the respondent attempts to pass itself off as the complainant online, which is blatant unauthorized use of the complainant’s mark and is evidence that the respondent has no rights or legitimate interests in the disputed domain name); see also Gardens Alive, Inc. v. D&S Linx, FA 203126 (Forum Nov. 20, 2003) (finding that the respondent used a domain name for commercial benefit by diverting Internet users to a website that sold goods and services similar to those offered by the complainant and thus, was not using the name in connection with a bona fide offering of goods or services nor a legitimate noncommercial or fair use). Complainant provides screenshots of the disputed domain name’s resolving website, which features Complainant’s RADIAL mark and purports to offer tracking and logistics services. The Panel finds that Respondent does not use the disputed domain name for any bona fide offering of goods or services, nor any legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) and (iii) and Respondent has no rights or legitimate interests in respect of the domain name.
Complainant has proved this element. That is, Complainant has made out a prima facie case, showing that Respondent lacks rights and legitimate interests with respect to <radialogistics.com>, and Respondent has not shouldered its resultant burden to present credible evidence of its rights or legitimate interests.
Complainant has proffered compelling evidence via its Exhibit C that Respondent registered and uses the <radialogistics.com> domain name in bad faith. Under Policy ¶ 4(b)(iv), using a disputed domain name to pass off as a Complainant and divert internet users to a resolving website where a Respondent offers competing or related services may be considered evidence of bad faith attraction for commercial gain. See Am. Int’l Group, Inc. v. Busby, FA 156251 (Forum May 30, 2003) (finding that the disputed domain name was registered and used in bad faith where the respondent hosted a website that “duplicated Complainant’s mark and logo, giving every appearance of being associated or affiliated with Complainant’s business . . . to perpetrate a fraud upon individual shareholders who respected the goodwill surrounding the AIG mark”). Complainant has provided screenshots of the disputed domain name’s resolving website, which features Complainant’s RADIAL mark and purports to offer tracking and logistical services. The Panel finds this is evidence that Respondent registered and uses the disputed domain name for bad faith attraction for commercial gain under Policy ¶ 4(b)(iv).
Complainant also argues that Respondent’s bad faith is further demonstrated by its use of a WHOIS privacy service. Under Policy ¶ 4(a)(iii), use of a privacy to hide one’s identity, while not considered dispositive on its own, may contribute to a finding of bad faith. See Robert Half International Inc. v. robert arran, FA 1764367 (Forum Feb. 5. 2018) (“Respondent’s use of a privacy registration service in an attempt to conceal his identity, though not itself dispositive, is a further indication of bad faith.”). Respondent’s identity was originally hidden behind a privacy service. The Panel finds that Respondent’s use of a privacy service is evidence of bad faith registration under Policy ¶ 4(a)(iii).
Complainant also argues Respondent registered the <radialogistics.com> domain name with actual knowledge of Complainant’s rights in the RADIAL mark based on Respondent’s use of the RADIAL marks. Use of a mark to divert Internet traffic to a disputed domain name can demonstrate actual knowledge of a complainant’s rights in a mark per Policy ¶ 4(a)(iii). See iFinex Inc. v. xu shuaiwei, FA 1760249 (Forum Jan. 1, 2018) (“Respondent’s prior knowledge is evident from the notoriety of Complainant’s BITFINEX trademark as well as from Respondent’s use of its trademark laden domain name to direct internet traffic to a website which is a direct competitor of Complainant”). Complainant argues that Respondent’s use of the RADIAL mark demonstrates Respondent’s actual knowledge of Complainant’s rights in the mark prior to registering the disputed domain name. Panel has viewed Complainant’s Exhibit C, consisting of the disputed domain name’s resolving website, which features Complainant’s mark and purports to offer various tracking and logistical services. The Panel subsequently finds that Respondent had actual knowledge of Complainant’s rights in the mark and registered and uses the disputed domain name in bad faith per Policy ¶ 4(a)(iii).
Complainant has proved this element.
DECISION
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 <radialogistics.com> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Karl V. Fink (Ret). (Chair);
Debrett Gordon Lyons and Carol Stoner, as Panelists.
Hon. Karl V. Fink (Ret.), for the Panel
Dated: December 2, 2021
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