Poshmark, Inc. v. Polyakov Andrey
Claim Number: FA2306002049028
Complainant is Poshmark, Inc. (“Complainant”), represented by Todd Marabella of Goodwin Procter LLP, Massachusetts, USA. Respondent is Polyakov Andrey (“Respondent”), Ukraine.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <poshmarkdl.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 Forum electronically on June 14, 2023; Forum received payment on June 14, 2023.
On June 14, 2023, NameCheap, Inc. confirmed by e-mail to Forum that the <poshmarkdl.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 20, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 10, 2023 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@poshmarkdl.com. Also on June 20, 2023, 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, Forum transmitted to the parties a Notification of Respondent Default.
On July 19, 2023, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Richard Hill as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that 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, 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, founded in 2011, it is a digital marketplace that provides users with a social platform to sell fashion products, home goods, and electronics. It has 80 million users. Complainant asserts rights in the POSHMARK mark based upon its registration in the United States in 2013.
Complainant alleges that the disputed domain name is identical or confusingly similar to its POSHMARK mark because it fully incorporates the mark, merely adding the letters “dl” and the generic top level domain (“gTLD”) “.com”.
According to Complainant, Respondent has no rights or legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name and Complainant has not authorized or licensed to Respondent any rights in the POSHMARK mark. Respondent does not use the disputed domain name for a bona fide offering of goods or services or a legitimate noncommercial or fair use. Instead, the resolving website misleads consumers into wrongly believing that it is owned by, connected with, or otherwise affiliated with Complainant. Specifically, the only content on the resolving website appears to be directed towards advertising a “Poshmark App” and the site discusses at length “tips” on how to use the official Poshmark mobile application and even purports to provide a link to download the official application, with the language, layout and color scheme of the website designed to mimic that of the Complainant’s legitimate website. The resolving website displays Complainant’s mark and distinctive logo.
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith. Respondent registered the disputed domain name with opportunistic bad faith. Respondent registered the domain name primarily for the purposes of disrupting Complainant’s business, namely by confusing Complainant’s customers into thinking that the resolving website is operated by Complainant or one of its affiliates. The disclaimers on the resolving website do not prevent a finding of bad faith registration and use.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns the mark POSHMARK and uses it to provide a digital market place, with an associated app.
Complainant’s rights in its mark date back to at least 2013.
The disputed domain name was registered in 2023.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
The language, layout and color scheme of the resolving website mimic that of the Complainant’s legitimate website; the resolving website displays Complainant’s mark and distinctive logo, and appears to be directed towards promoting Complainant’s app. Disclaimers on the resolving website are neither prominent enough, nor clear enough, to avoid consumer confusion.
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 Complainant’s POSHMARK mark in its entirety, merely adding the letters “dl” and the generic top level domain (“gTLD”) “.com”. The addition of letters and a gTLD fails sufficiently to distinguish a disputed domain name from a mark per Policy ¶ 4(a)(i). See Bloomberg Finance L.P. v. Nexperian Holding Limited, FA 1782013 (Forum June 4, 2018) (“Where a relevant trademark is recognisable within a disputed domain name, the addition of other terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) does not prevent a finding of confusing similarity under the first element.”); see also Home Depot Product Authority, LLC v. Angelo Kioussis, FA 1784554 (Forum June 4, 2018) (“The domain name contains the mark in its entirety, with only the addition of the generic letters ‘sb’ and the digits ‘2018,’ plus the generic Top Level Domain (“gTLD”) ‘.com.’ These alterations of the mark, made in forming the domain name, do not save it from the realm of confusing similarity under the standards of the Policy.”). Therefore the Panel finds that the disputed domain name is confusingly similar to Complainant’s mark per Policy ¶ 4(a)(i).
Complainant has not licensed or otherwise authorized Respondent to use its POSHMARK mark. Respondent is not commonly known by the disputed domain name: under Policy ¶ 4(c)(ii), WHOIS information may be used to determine whether a respondent is commonly known by the disputed domain name. 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). Here, the WHOIS information for the disputed domain name lists the registrant as “Polyakov Andrey”. Thus the Panel finds that Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii).
According to paragraph 4.8 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Jurisprudential Overview 3.0”), a Panel may conduct limited factual research regarding disputed domain names:
Noting in particular the general powers of a panel articulated inter alia in paragraphs 10 and 12 of the UDRP Rules, it has been accepted that a panel may undertake limited factual research into matters of public record if it would consider such information useful to assessing the case merits and reaching a decision.
This may include visiting the website linked to the disputed domain name in order to obtain more information about the respondent or its use of the domain name, consulting historical resources such as the Internet Archive (www.archive.org) in order to obtain an indication of how a domain name may have been used in the relevant past, reviewing dictionaries or encyclopedias (e.g., Wikipedia), or accessing trademark registration databases.
The Panel has visited the resolving website and found the following:
a) The copyright notice at the bottom of the pages of the resolving website contains the text: “Poshmark FanSite”.
b) The resolving website displays the following disclaimer: “poshmarkdl.com is not an official representative or the developer of this application, game or product. Copyrighted materials belong to their respective owners”.
c) The “About Us” page of the resolving website states: “Hi there! My name is Julia and I’m the creator of Poshmark app fan website. If you’re looking for a reliable information source for Poshmark app, you’ve just found it! On the website, you can find a lot of useful guides, handy tutorials, and other information about this amazing app. We have a page with the latest news and updates about the app. I hope you will find something interesting for yourself. Stay with us and find out more about this great app!”. The Panel notes that Respondent’s name is not “Julia”.
d) The “Contact Us” page of the resolving website does not provide any mechanism for contacting Respondent.
Regarding (a) above, according to 2.7 of the cited WIPO Jurisprudential Overview 3.0, a fan site may support finding that Respondent has rights or legitimate interests in a disputed domain name. In cases where the disputed domain name is identical to a mark, Panels have tended not to find in favor of Respondent. In cases where the disputed domain name clearly refers to a fan site, (e.g. <trademark-fan.tld>), Panels have tended to find in favor of Respondent.
Here, the disputed domain name is neither identical to Complainant’s mark, nor does it clearly refer to a fan site. The text “fan site” appears only at the bottom of the pages of the resolving website, in small print, as part of the copyright notice.
The disclaimer on the resolving website (see (b) above) does not clearly indicate that Respondent is not affiliated with Complainant, nor does it clearly indicate that the resolving website is not affiliated with Complainant.
The “About Us” page (see (c) above) specifies that the resolving website is not a generic fan site, but rather a site dedicated to providing information about one of Complainant’s specific products, its app.
The “Contact Us” page (see (d) above) does not provide a mechanism to contact Respondent, whose name is not “Julia”, the purported creator of the resolving website (see (c) above).
On the balance of the evidence, and considering all of the circumstances of the case, the Panel finds that Respondent’s use of the disputed domain name does not constitute fair use under the Policy.
Indeed, Complainant presents evidence showing that the resolving website misleads consumers into wrongly believing that it is owned by, connected with, or otherwise affiliated with Poshmark. Specifically, the only content on the resolving website appears to be directed towards advertising a “Poshmark App” and the site discusses at length “tips” on how to use the official Poshmark mobile application and even purports to provide a link to download the official application, with the language, layout and color scheme of the website designed to mimic that of the Complainant’s domain; the resolving website displays Complainant’s mark and distinctive logo; the disclaimers (see above) on the resolving website are not sufficient to avoid consumer confusion. Indeed, both the disputed domain name itself, and the content of the resolving website, falsely suggest that they are associated with the Complainant. That is not a bona fide offering of goods or services nor a fair or legitimate noncommercial use of the disputed domain name per Policy ¶¶ 4(c)(i) or (iii). According to paragraph 2.5 of the cited WIPO Jurisprudential Overview 3.0: “Fundamentally, a respondent’s use of a domain name will not be considered ‘fair’ if it falsely suggests affiliation with the trademark owner …”. 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 Qualcomm Incorporated v. Qualcomm Tech, FA 2004546 (Forum Aug. 17, 2022) (finding that a resolving website that “mimics Complainant’s website, display[s] Complainant’s mark, logo, and tagline; and it displays links to Complainant’s own social media platforms” is neither a bona fide offering of goods or services, nor a legitimate non-commercial or fair use of the disputed domain name).
For all the above reasons 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, consumers visiting the resolving website are likely to be confused as to whether Respondent and/or its website is affiliated in some way with Complainant; and/or the disputed domain name or the associated website are endorsed, authorized, or sponsored by Complainant, none of which are true. This is a form of bad faith use of the disputed domain name under the Policy. See Bank of America Corp. v. Out Island Props., Inc., FA 154531 (Forum June 3, 2003) (bad faith established “[s]ince the disputed domain names contain entire versions of Complainant’s marks and are used for something completely unrelated to their descriptive quality, a consumer searching for Complainant would become confused as to Complainant’s affiliation with the resulting search engine website.”). The Panel therefore finds that Respondent registered and uses the disputed domain in bad faith per Policy ¶ 4(a)(iii).
Further, Respondent registered the disputed domain name with actual knowledge of Complainant’s mark: the resolving website displays Complainant’s mark and distinctive logo. While constructive notice is insufficient to demonstrate bad faith, actual knowledge of a complainant’s rights in a mark prior to registration may be evidence of bad faith per Policy ¶ 4(a)(iii). See Custom Modular Direct LLC v. Custom Modular Homes Inc., FA 1140580 (Forum Apr. 8, 2008) (“There is no place for constructive notice under the Policy.”); see also Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum Feb. 6, 2014) (“The Panel notes that although the UDRP does not recognize ‘constructive notice’ as sufficient grounds for finding Policy ¶ 4(a)(iii) bad faith, the Panel here finds actual knowledge through the name used for the domain and the use made of it.”); 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). The Panel finds that Respondent had actual knowledge of Complainant’s rights in the mark prior to Respondent’s registration of the disputed domain name and that this constitutes bad faith registration and use under Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <poshmarkdl.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: July 19, 2023
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