Sunbelt Rentals, Inc. v. James smith
Claim Number: FA2206002001201
Complainant is Sunbelt Rentals, Inc. (“Complainant”), represented by William B. Cannon of Parker Poe Adams & Bernstein LLP, North Carolina, USA. Respondent is James smith (“Respondent”), Texas, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <sunberentals.com>, 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.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on June 21, 2022; the Forum received payment on June 21, 2022.
On June 21, 2022, NameCheap, Inc. confirmed by e-mail to the Forum that the <sunberentals.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 June 22, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 12, 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@sunberentals.com. Also on June 22, 2022, 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 July 13, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Richard Hill 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 states that it was founded over thirty years ago and is one of the largest equipment rental companies in the United States. Complainant sells and leases a wide range of equipment and machinery to customers in the construction, industrial, municipal, and do-it-yourself markets, serving well over 350,000 customers from more than 1,000 locations throughout the United States and Canada. Complainant has rights in the SUNBELT RENTALS mark through its registration in the United States in 2001.
Complainant alleges that the disputed domain name is identical or confusingly similar to its SUNBELT RENTALS mark as it incorporates a misspelling of the mark (the letters “l” and “t” are omitted from SUNBELT) and merely adds the “.com” generic top-level domain (“gTLD”). Complainant cites UDRP precedents to support its position.
According to Complainant, Respondent lacks rights or legitimate interests in the disputed domain name as Respondent is not commonly known by the disputed domain name, nor has Complainant authorized or licensed Respondent to use its SUNBELT RENTALS mark in any way. Respondent does not use the disputed domain name for any bona fide offering of goods or services, nor a legitimate noncommercial or fair use, but instead hosts a parked page with pay-per-click advertising links to unrelated products and services. Respondent engages in typosquatting. Complainant cites UDRP precedents to support its position.
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith. Respondent hosts a parked page with unrelated pay-per-click links for commercial gain. Additionally, Respondent attempts to cause consumer confusion. Furthermore, Respondent registered the disputed domain name with actual knowledge of Complainant’s rights in the SUNBELT RENTALS mark. Complainant cites UDRP precedents to support its position.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns the mark SUNBELT RENTALS, with rights dating back to 2001 and uses it to provide equipment rental services.
The disputed domain name was registered in 2022.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
The disputed domain name resolves to a parked website that displays pay-per-click advertising hyperlinks to products and services that are not related to those 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 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 disputed domain name incorporates a misspelling of Complainant’s SUNBELT RENTALS mark (the letters “l” and “t” are omitted from SUNBELT) and merely adds the “.com” generic top-level domain (“gTLD”). Under Policy ¶ 4(a)(i), where a disputed domain name incorporates a mark and omits letters while adding the “.com” gTLD, the disputed domain name is generally considered confusingly similar to the mark. See Hallelujah Acres, Inc. v. Manila Indus., Inc., FA 805029 (Forum Nov. 15, 2006) (holding that the respondent’s <hacrs.com> domain name was confusingly similar to the complainant’s HACRES mark because it omitted the letter “e” from the mark and added the generic top-level domain “.com”); see Also American Sports Licensing, Inc. v. Kanter Associates SA, FA1201001425931 (Forum Feb. 23, 2012) (“The Panel finds that the removal of letters does not adequately distinguish the disputed domain name from [c]omplainant’s mark.”). Thus the Panel finds that the disputed domain name is r confusingly similar to Complainant’s mark under Policy ¶ 4(a)(i).
Complainant has not licensed or otherwise authorized Respondent to use its mark. Respondent is not commonly known by the disputed domain name: under Policy ¶ 4(c)(ii), WHOIS information may demonstrate that a respondent is not commonly known by the 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).”). Here, the WHOIS information of record identifies the registrant as “James smith”. Therefore the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).
The disputed domain name resolves to a parked page displaying pay-per-click hyperlinks to products and services that are not related to those of Complainant. Under Policy ¶¶ 4(c)(i) and (iii), using a disputed domain name to host a parked page with pay-per-click links does not constitute a bona fide offering of goods or services, nor a legitimate noncommercial or fair use. See Vance Int’l, Inc. v. Abend, FA 970871 (Forum June 8, 2007) (concluding that the operation of a pay-per-click website at a confusingly similar domain name does not represent a bona fide offering of goods or services or a legitimate noncommercial or fair use, regardless of whether or not the links resolve to competing or unrelated websites or if the respondent is itself commercially profiting from the click-through fees); see also Summit Group, LLC v. LSO, Ltd., FA 758981 (Forum Sept. 14, 2006) (finding that the respondent’s use of the complainant’s LIFESTYLE LOUNGE mark to redirect Internet users to respondent’s own website for commercial gain does not constitute either a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii)); see also Vapor Blast Mfg. Co. v. R & S Tech., Inc., FA 96577 (Forum Feb. 27, 2001) (finding that the respondent’s commercial use of a confusingly similar domain name suggests that the respondent lacks rights or legitimate interests in the disputed domain name). Therefore the Panel finds that Respondent fails to use the disputed domain name to make a bona fide offering of goods or services, or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii). And the Panel finds that Respondent does not have rights or legitimate interests in the disputed domain name.
Respondent (who did not reply to Complainant’s contentions) has not presented any plausible explanation for its use of Complainant’s mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain name.
Indeed, as already noted, the disputed domain name resolves to a parked page with unrelated advertising links. Under Policy ¶ 4(b)(iv), hosting a parked page with pay-per-click links for commercial gain may be evidence of bad faith registration and use. See Google Inc. v. James Lucas / FireStudio / Jameschee / FIRESTUDIO / SEONG YONG, FA1502001605757 (Forum Apr. 7, 2015) (“This Panel agrees that Respondent’s inclusion of advertisements to likely reap click-through fees is an example of bad faith pursuant Policy ¶ 4(b)(iv).”); see also Tumblr, Inc. v. Ailing Liu, FA1402001543807 (Forum Mar. 24, 2014) (“Bad faith use and registration exists under Policy ¶ 4(b)(iv) where a respondent uses a confusingly similar domain name to resolve to a website featuring links and advertisements unrelated to complainant’s business and respondent is likely collecting fees.”). Thus the Panel finds that Respondent registered and uses the disputed domain name in bad faith under Policy ¶ 4(b)(iv).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <sunberentals.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: July 14, 2022
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