XPO Logistics, Inc. v. Jasetin Mcpherson Jasetin Mcpherson
Claim Number: FA2307002053128
Complainant is XPO Logistics, Inc. (“Complainant”), represented by Georges Nahitchevansky of Kilpatrick Townsend & Stockton LLP, New York, USA. Respondent is Jasetin Mcpherson Jasetin Mcpherson (“Respondent”), Texas, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <xpologistic.org>, (‘the Domain Name’) registered with Porkbun LLC.
The undersigned certifies that they have acted independently and impartially and to the best of their knowledge have no known conflict in serving as Panelist in this proceeding.
Dawn Osborne as Panelist.
Complainant submitted a Complaint to Forum electronically on July 13, 2023; Forum received payment on July 14, 2023.
On July 14, 2023, Porkbun LLC confirmed by e-mail to Forum that the <xpologistic.org> Domain Name is registered with Porkbun LLC and that Respondent is the current registrant of the name. Porkbun LLC has verified that Respondent is bound by the Porkbun LLC 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 19, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 8, 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@xpologistic.org. Also on July 19, 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 9, 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’s contentions can be summarised as follows:
The Complainant is the owner of the mark XPO LOGISTICS registered, inter alia, in the USA for transportation services with first use recorded as 2011. It owns xpologistics.com.
The Domain Name registered in 2021 is confusingly similar to the Complainant’s mark, removing its final letter ‘s’ and adding the gTLD .com which does not prevent such confusing similarity.
Respondent has no 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 fraudulent purposes for a site purporting to be an official site of the Complainant using the Complainant’s trade mark and logo including in its masthead and footer and linking to the Complainant’s official web site in a phishing scheme. This is registration and use in bad faith fraudulently impersonating the Complainant in full knowledge of the Complainant and its rights.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Complainant is the owner of the mark XPO LOGISTICS registered, inter alia, in the USA for transportation services with first use recorded as 2011.
The Domain Name registered in 2021 for a site purporting to be an official site of the Complainant using the Complainant’s trade mark and logo including in its masthead and footer and linking to the Complainant’s official web site.
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 misspelled version of the Complainant's XPO LOGISTICS mark (which is registered in USA for transportation services with first use recorded as 2011) merely omitting the letter ‘s’, and adding the gTLD .com.
The Panel agrees that misspellings such as omission of a letter ‘s’ does not prevent confusing similarity between the Domain Name and the Complainant's trade mark pursuant to the Policy. See Lockheed Martin Corporation v. toyosei maruyama, FA 1620489 (Forum July 7, 2015) (“Simply removing the letter ‘s’ from a mark in the creation of a domain name still creates a confusingly similar domain name.”); see also Bare Escentuals Beauty, Inc. v. PPA Media Services / Ryan G Foo, FA 1572597 (Forum Sept. 30, 2014) (establishing a confusing similarity between the <baremineral.com> domain name and the BARE MINERALS trademark under Policy 4(a)(i)).
The gTLD .com 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 mark. The Respondent has not answered this Complaint and 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 Domain Name has been used for commercial purposes which is not legitimate non commercial fair use.
The Domain Name has been used for a site purporting to be an official site of the Complainant using the Complainant’s mark and logo as a masthead and footer. This is deceptive, likely fraudulent and amounts to passing off. As such it cannot amount to the bona fide offering of goods and services. (See DaVita Inc. v Cynthia Rochelo FA 1738034 (Forum July 20, 2017) finding that ‘Passing off in furtherance of a phishing scheme is not considered a bona fide offering of goods or services or legitimate non commercial or fair use’). See Ripple Labs Inc. v. Jessie McKoy / Ripple Reserve Fund, FA 1790949 (Forum July 9, 2018) (finding the respondent did not use the domain name to make a bona fide offering of goods or services per Policy ¶ 4(c)(i) or for a legitimate noncommercial or fair use per Policy ¶ 4(c)(iii) where the website resolving from the disputed domain name featured the complainant’s mark).
Additionally the Domain Name appears to be a typosquatting registration different only by one letter ‘s’ from the Complainant’s mark. Typosquatting is an indication of a lack of rights or a legitimate interests. See Chegg Inc. v. yang qijin, FA 1610050 (Forum Apr. 23, 2015) (“Users might mistakenly reach Respondent’s resolving website by misspelling Complainant’s mark. Taking advantage of Internet users’ typographical errors, known as typosquatting, demonstrates a respondent’s lack of rights or legitimate interests under Policy ¶ 4(a)(ii).”).
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
The Respondent is impersonating the Complaiant. Diverting Internet users for commercial gain and impersonating a complainant by use of a complainant’s mark and logo in a fraudulent scheme is confusing and disruptive and evinces bad faith registration and use. See Bittrex, Inc. v. Wuxi Yilian LLC, FA 1760517 (Forum Dec. 27, 2017) (finding bad faith per Policy ¶ 4(b)(iv) where“Respondent registered and uses the <lbittrex.com> domain name in bad faith by directing Internet users to a website that mimics Complainant’s own website in order to confuse users into believing that Respondent is Complainant, or is otherwise affiliated or associated with Complainant.”); see also Klabzuba Oil & Gas, Inc. v. LAKHPAT SINGH BHANDARI, FA 1625750 (Forum July 17, 2015) (“Respondent uses the <klabzuba-oilgas.com> domain to engage in phishing, which means Respondent registered and uses the domain name in bad faith under Policy ¶ 4(a)(iii).”).The use of the Complainant’s logo shows the Respondent had actual knowledge of the Complainant and its rights and services.
Further the Domain Name seeks to take advantage of the situation where Internet users may make a typographical error. Typosquatting itself is evidence of relevant bad faith registration and use and disruption of the Complainant’s business. See Diners Club int'l Ltd. v Domain Admin ****** It's all in the name ******, FA 156839 (Forum June 23, 2003) (registering a domain name in the hope that Internet users will mistype the Complainant’s mark and be taken to the Respondent’s site is registration and use in bad faith). Typosquatting also indicates the Respondent had knowledge of the Complainant and its rights. See InfoSpace, Inc. v. Greiner, FA 227653 (Forum Mar. 8, 2004) (“Respondent’s domain name is a simple and popular variation of a trademark commonly used by typosquatters …Such a domain name evidences actual knowledge of the underlying mark prior to the registration of the domain name, and as Respondent failed to submit any evidence to counter this inferrence [sic], Respondent’s actions evidence bad faith registration of the disputed domain name.”).
As such, the Panelist believes that the Complainant has made out its case that the Domain Name was registered and used in bad faith and has satisfied the third limb of the Policy under para 4 (b)(iii) and (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 <xpologistic.org> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: August 9, 2023
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page