AutoZone, Inc. v. MD Salman Baig
Claim Number: FA2307002052107
Complainant is AutoZone, Inc. (“Complainant”), represented by Lauren N. Jones of Butler Snow LLP, Tennessee, USA. Respondent is MD Salman Baig (“Respondent”), Bangladesh.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <azpeople.me>, (‘the Domain Name’) registered with NameCheap, Inc.
The undersigned certifies that she has acted independently and impartially and to the best of her knowledge has no known conflict in serving as Panelist in this proceeding.
Dawn Osborne as Panelist.
Complainant submitted a Complaint to Forum electronically on July 6, 2023; Forum received payment on July 6, 2023.
On July 6, 2023, NameCheap, Inc. confirmed by e-mail to Forum that the <azpeople.me> 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 July 10, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 31, 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@azpeople.me. Also on July 10, 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 August 3, 2023 pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Dawn Osborne 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
The Complainant is the owner of the AUTOZONE mark, registered, inter alia, in the United States for automotive related goods and services with first use recorded as 1987. It is well known.
The Domain Name registered in 2021 is confusingly similar to the Complainant’s trade mark abbreviating AUTOZONE to AZ, but with the Complainant’s mark still recognisable in the Domain Name, and the addition of the generic term ‘people’ and the gTLD .me not preventing the said confusing similarity.
The Respondent does not have rights or legitimate interests in the Domain Name, is not commonly known by it and is not authorised by the Complainant.
The Domain Name has been used for a web site purporting to be the employee portal of the Complainant referring to the Complainant and using the Complainant’s AUTOZONE mark in its logo form on the site and similar trade dress showing actual knowledge of the Complainant, its business, rights and services. This is not a bona fide offering of goods or services or a legitimate non commercial or fair use. It is registration and use in opportunistic bad faith attracting Internet users for commercial gain and disrupting the Complainant’s business.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Complainant is the owner of the AUTOZONE mark, registered, inter alia, in the United States for automotive parts and services with first use recorded as 1987. It is well known.
The Domain Name registered in 2021 has been used for a web site purporting to be the employee portal of the Complainant referring to the Complainant and using the Complainant’s AUTOZONE mark and logo and similar trade dress in a fraudulent way.
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 Domain Name consists of a shortened version of the Complainant's AUTOZONE mark (which is registered, inter alia in USA for automotive related goods and services with first use recorded as 1987) namely AZ, the generic term ‘people’ and the gTLD .me.
It has been consistently held by Panels that there is confusing similarity where a complainant’s trade mark is abbreviated in a domain name, but is still recognisable within that domain name. See Microsoft Corp. v. Montrose Corp., D2000-1568 (WIPO Jan. 25, 2001) (finding the domain name <ms-office-2000.com> to be confusingly similar even though the mark MICROSOFT is abbreviated). The Panel holds that ‘AZ’ is confusingly similar to the Complainant’s trade mark because it was clearly used by the Respondent in this case as a domain name, precisely because it is still recognisable as the Complainant’s mark.
The addition of the generic term ‘people’ in the Domain Name does not serve to distinguish the Domain Name from the Complainant’s mark. See Abbott Laboratories v Miles White, FA 1646590 (Forum Dec. 10, 2015) (holding that the addition of generic terms does not adequately distinguish a disputed domain name from complainant’s mark under Policy 4(a)(i)).
The gTLD .me does not serve to distinguish the Domain Name from the Complainant’s mark. See Red Hat Inc v Haecke FA 726010 (Forum July 24, 2006) (concluding that the redhat.org domain name is identical to the complainant's red hat mark because the mere addition of the gTLD was insufficient to differentiate the disputed domain name from the mark).
Accordingly, the Panel holds that the Domain Name is confusingly similar for the purpose of the Policy to a mark in which the Complainant has rights.
As such the Panel holds that Paragraph 4 (a) (i) of the Policy has been satisfied.
Rights or Legitimate Interests
The Complainant has not authorised the use of its AUTOZONE mark or an recognisable abbreviation of it. There is no evidence or reason to suggest the Respondent is, in fact, commonly known by the Domain Name. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA 1574905 (Forum Sept. 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark). The use of the Domain Name is commercial and so cannot be legitimate non commercial fair use.
The Respondent has used the site attached to the Domain Name to appear to be an official employee portal of the Complainant. The Respondent appears to refer to itself falsely as the Complainant, using the Complainant’s full AUTOZONE mark in a misleading and deceptive way including in its logo form, passing the site off as administered by the Complainant with similar trade dress. As such this cannot amount to the bona fide offering of goods and services. 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).”).
It is more likely than not that the Respondent’s purpose is phishing. (See DaVita Inc. v Cynthia Rochelo FA 1738034 (Forum July 20, 2017) finding that ‘Passing off in furtherance of a fraudulent scheme is not considered a bona fide offering of goods or services or legitimate non commercial or fair use’).
The Respondent has not answered this Complaint and has not rebutted the prima facie case evidenced by the Complainant as set out herein.
As such the Panelist finds that the Respondent does not have rights or a legitimate interest in the Domain Name and that the Complainant has satisfied the second limb of the Policy.
Registration and Use in Bad Faith
As determined above the Respondent's use of the Domain Name is commercial and it is using it to fraudulently offer services not associated with the Complainant in a confusing manner. The use of the Complainant’s logo and full AUTOZONE mark and references to the Complainant on the web site attached to the Domain Name makes it clear that the Respondent was aware of the significance of the AUTOZONE name and the Complainant and its rights, business and services.
Accordingly, the Panel holds that the Respondent has intentionally attempted to attract for commercial gain Internet users by creating a likelihood of confusion with the Complainant’s AUTOZONE trade mark as to the source, sponsorship, affiliation of the Respondent’s web site and services offered on it, designed to disrupt the business of the Complainant. See LoanDepot.com, LLC v Kaolee (Kay) Vang-Thao, FA 1762308 (Forum Jan. 9, 2018) (Finding that Respondent’s use of the disputed domain name to offer competing loan services disrupts Complainant’s business under Policy 4 (b)(iii).) See also CNA Financial Corporation v William Thomson/CNA Insurance, FA 1541484 (Forum Feb 28, 2014) (finding that Respondent had engaged in bad faith under Policy 4(b)(iv) by using a confusingly similar domain name to attract internet users where it offered competing services).
Respondent uses the Domain Name to engage in apparent phishing to collect personal details. The use of a disputed domain name in furtherance of a phishing scheme is considered evidence of bad faith registration and use under Policy ¶ 4(a)(iii). See Morgan Stanley v. Bruce Pu, FA 1764120 (Forum Feb. 2, 2018) (“[T]he screenshot of the resolving webpage allows users to input their name and email address, which Complainant claims Respondent uses that to fraudulently phish for information. Thus, the Panel agrees that Respondent phishes for information and finds that Respondent does so in bad faith under Policy ¶ 4(a)(iii).”).
As such, the Panelist believes that the Complainant has made out its case that the Domain Name was registered and used in bad faith under Paragraphs 4(b)(iii) and (iv) and has satisfied the third limb of the Policy.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <azpeople.me> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: August 3, 2023
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