PrettyLitter, Inc. v. mary crum / Crum Enterprise
Claim Number: FA2112001978126
Complainant is PrettyLitter, Inc. (“Complainant”), represented by William Schultz of Merchant & Gould, P.C., Minnesota, USA. Respondent is mary crum / Crum Enterprise (“Respondent”), Florida, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <prettylitter.us>, registered with NameCheap, 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.
Paul M. DeCicco, as Panelist.
Complainant submitted a Complaint to the Forum electronically on December 22, 2021; the Forum received payment on December 22, 2021.
On December 22, 2021, NameCheap, Inc. confirmed by e-mail to the Forum that the <prettylitter.us> 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 the U.S. Department of Commerce’s usTLD Dispute Resolution Policy (the “Policy”).
On December 27, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 18, 2022 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@prettylitter.us. Also on December 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 January 19, 2022, 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 to the usTLD Dispute Resolution Policy (“Rules”). Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the usTLD Policy, usTLD 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, Pretty Litter, Inc., provides cat litter and related products that can detect medical anomalies.
Complainant has rights in the PRETTY LITTER mark based on registration of the mark with the United States Patent and Trademark Office (“USPTO”).
Respondent’s <prettylitter.us> domain name is identical to Complainant’s PRETTY LITTER mark as it merely adds the “.us” country code top-level domain (“ccTLD”) to the mark.
Respondent lacks rights or legitimate interests in the <prettylitter.us> domain name. Respondent is not commonly known by the at-issue domain name and Complainant has not permitted Respondent to use the PRETTY LITTER mark. Additionally, Respondent does not use the at-issue domain name for any bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent uses the domain name to redirect users to Complainant’s own website and as part of a phishing scheme.
Respondent registered or uses the <prettylitter.us> domain name in bad faith. Respondent uses the at-issue domain name to attract users and disrupt Complainant’s business in furtherance of a phishing scheme. Additionally, Respondent had actual knowledge of Complainant’s rights in the PRETTY LITTER mark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has trademark rights in PRETTY LITTER.
Respondent is not affiliated with Complainant and is not authorized to use Complainant’s trademark in any capacity.
Respondent registered the at‑issue domain name after Complainant acquired rights in its PRETTY LITTER trademark.
Respondent uses the <prettylitter.us> domain name as part of an email phishing scheme to defraud third parties.
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 or is being used in bad faith.
Given the similarity between the Uniform Domain Name Dispute Resolution Policy (“UDRP”) and the usTLD Policy, the Panel will draw upon UDRP precedent as applicable in rendering its decision.
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 name is confusingly similar to a trademark in which Complainant has rights.
Complainant’s USPTO trademark registration for PRETTY LITTER shows Complainant’s rights in mark under Policy ¶ 4(a)(i). See DIRECTV, LLC v. The Pearline Group, FA 1818749 (Forum Dec. 30, 2018) (“Complainant’s ownership of a USPTO registration for DIRECTV demonstrate its rights in such mark for the purposes of Policy ¶ 4(a)(i).”).
Respondent’s <prettylitter.us> domain name contains Complainant’s PRETTY LITTER trademark followed by the top-level domain name “.us.” The difference between Complainant’s trademark and Respondent’s domain name fails to distinguish the domain name from Complainant’s mark for the purpose of Policy ¶ 4(a)(i). The Panel thus concludes that Respondent’s <prettylitter.us> domain name is confusingly similar to Complainant’s PRETTY LITTER trademark. See Lifetouch, Inc. v. Fox Photographics, FA 414667 (Forum Mar. 21, 2005) (finding the respondent’s <lifetouch.us> domain name to be identical to the complainant’s LIFETOUCH mark because “[t]he addition of “.us” to a mark fails to distinguish the domain name from the mark pursuant to the [usTLD] 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.
The WHOIS information for the at-issue domain name identifies the domain name’s registrant as “mary crum / Crum Enterprise” and the record before the Panel contains no evidence tending to prove that Respondent is commonly known by the <prettylitter.us> domain name. The Panel therefore concludes that Respondent is not commonly known by the <prettylitter.us> domain name for the purposes of Policy ¶ 4(c)(iii). 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).
Furthermore, Respondent uses the <prettylitter.us> domain name to defraud third parties via email. Complainant provides a copy of an email send to a potential Complainant employee which features Complainant’s PRETTY LITTER mark and a form requesting the recipient to disclose financial information. The form is presented in conjunction with a bogus job offer letter. Respondent’s use of the domain name in this manner indicates neither a bona fide offering of goods or services under Policy ¶ 4(c)(ii), nor a non-commercial or fair use pursuant to Policy ¶ 4(c)(iv). See Microsoft Corporation v. Terrence Green / Whois Agent / Whois Privacy Protection Service, Inc., FA 1661030 (Forum Apr. 4, 2016) (finding the respondent’s use of the disputed domain names to send fraudulent emails purportedly from agents of complainant to be 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 Enterprise Holdings, Inc. v. I S / Internet Consulting Services Inc., FA 1785242 (Forum June 5, 2018) (“On its face, the use of a domain name that is confusingly similar to the mark of another in order to facilitate a phishing scheme cannot be described as either 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).”).
Likewise, Respondent’s redirection of <prettylitter.us> traffic to Complainant’s own website shows neither a bona fide offering of goods or services under Policy ¶ 4(c)(ii), nor a non-commercial or fair use pursuant to Policy ¶ 4(c)(iv). See Better Existence with HIV v. AAA, FA 1363660 (Forum Jan. 25, 2011) (finding that “even though the disputed domain name still resolves to Complainant’s own website, Respondent’s registration of the disputed domain name in its own name fails to create any rights or legitimate interests in Respondent associated with the disputed domain name under Policy ¶ 4(a)(ii)”).
Given the forgoing, Complainant satisfies its initial burden and without contrary evidence of record conclusively demonstrates Respondent’s lack of rights and lack of interests in respect of the at-issue domain name under Policy ¶ 4(a)(ii).
The at-issue domain name was registered and is being used in bad faith. As discussed below without limitation, there is evidence from which the Panel may conclude that Respondent acted in bad faith pursuant to Policy ¶ 4(a)(iii).
As discussed to above regarding rights and legitimate interests, Respondent uses the at-issue domain name to phish for third party private information via email pretending to be from Complainant yet sent by Respondent from Respondent’s <prettylitter.us> domain name. Respondent’s use of its confusingly similar domain name in furtherance of a phishing scheme is evidence of bad faith registration and use under Policy ¶ 4(a)(iii). See Eastman Chemical Company v. Lukas Moris, FA 1956649 (Forum Aug. 23, 2021) (“Complainant first argues Respondent registered and uses the disputed domain name in bad faith because Respondent uses the disputed domain name to impersonate Complainant in furtherance of a phishing scheme. A domain name that is used in connection with a phishing scheme over email may be evidence of a domain name registered and used in bad faith under Policy ¶¶ 4(b)(iii) and (iv).”).; see also Airbnb, Inc. v. JAMES GRANT, FA1760182 (Forum Dec. 28, 2017) (“Using a misleading email address to defraud unwary customers certainly constitutes bad faith.”).
Additionally, Respondent had actual knowledge of Complainant’s rights in the PRETTY LITTER mark when it registered <prettylitter.us> as a domain name. Respondent’s actual knowledge is evident from the notoriety of Complainant’s PRETTY LITTER trademark; from Respondent’s redirection of <prettylitter.us> to Complainant’s own website; and from Respondent’s use of the confusingly similar domain name to facilitate an email phishing scheme as discussed elsewhere herein. Respondent’s registration and use of <prettylitter.us> with knowledge of Complainant’s trademark rights therein further shows Respondent’s bad faith registration and use of the domain name 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); see also, Univision Comm'cns Inc. v. Norte, FA 1000079 (Forum Aug. 16, 2007) (rejecting the respondent's contention that it did not register the disputed domain name in bad faith since the panel found that the respondent had knowledge of the complainant's rights in the UNIVISION mark when registering the disputed domain name).
Having established all three elements required under the usTLD Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <prettylitter.us> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: January 20, 2022
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