Yelp Inc. v. Avtukhov Evhenyy Iurevych
Claim Number: FA2307002053692
Complainant is Yelp Inc. (“Complainant”), represented by Reed Lyon, California, USA. Respondent is Avtukhov Evhenyy Iurevych (“Respondent”), Ukraine.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <yelpbot.com>, registered with PDR Ltd. d/b/a PublicDomainRegistry.com.
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 Forum electronically on July 18, 2023; Forum received payment on July 18, 2023.
On July 19, 2023, PDR Ltd. d/b/a PublicDomainRegistry.com confirmed by e-mail to Forum that the <yelpbot.com> domain name is registered with PDR Ltd. d/b/a PublicDomainRegistry.com and that Respondent is the current registrant of the name. PDR Ltd. d/b/a PublicDomainRegistry.com has verified that Respondent is bound by the PDR Ltd. d/b/a PublicDomainRegistry.com 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 20, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 9, 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@yelpbot.com. Also on July 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 August 10, 2023, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Paul M. DeCicco 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 contends as follows:
Complaint Yelp, Inc. operates an online local search website for users to share information about their communities and connect businesses and consumers.
Complainant has rights in the YELP mark through the mark’s trademark registrations with the United States Patent and Trademark Office (USPTO).
Respondent’s <yelpbot.com> domain name is confusingly similar to the YELP mark as it includes Complainant’s YELP mark and merely adds the “.com” generic top-level domain.
Respondent lacks rights or legitimate interests in the domain name since Respondent is not licensed or authorized to use Complainant’s YELP mark and is not commonly known by the at-issue domain name. Also, Respondent does not use the at-issue domain name for any bona fide offering of goods or services or legitimate noncommercial or fair use. Rather, Respondent uses the website addressed by <yelpbot.com> to purport to allow business listed on Yelp to automatically respond when users of Complainant’s Yelp services contact such businesses. Respondent’s web business is part of scheme intended to deceive Complainant’s customers and manipulate Complainant’s performance algorithm by making it seem like business are attending to the request for service when in fact an automated response is being sent in violation of Complainant’s terms of service. Respondent’s use of the domain name is neither a bona fide use of the domain name under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).
Respondent registered and used the <yelpbot.com> domain name in bad faith. Respondent used a pseudonym to register its domain name. Respondent benefits commercially by passing itself off as Complainant so as to divert traffic to Respondent’s website. Respondent had actual knowledge of Complainant’s rights in YELP when it registered <yelpbot.com>. Respondent’s use of the domain name violates Complainant’s terms of service.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has rights in the YELP mark.
Respondent is not affiliated with Complainant and had not been authorized to use Complainant’s trademark in any capacity.
Respondent registered the at‑issue domain name after Complainant acquired rights in the YELP trademark.
Respondent uses the <yelpbot.com> domain name to address a website that offers automated email responses to YELP related service inquiries.
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 at-issue domain name is confusingly similar to a mark in which Complainant has rights.
Any of Complainant’s USPTO trademark registrations for YELP sufficiently demonstrates Complainant’s rights in a 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 <yelpbot.com> domain name is confusingly similar to Complainant’s YELP trademark. The domain name consists of Complainant’s entire mark followed by the term “bot” with all followed by the generic “.com” top-level domain name. The differences between the at-issue domain name and Complainant’s YELP trademark are insufficient to distinguish the domain name from Complainant’s mark for the purposes of the Policy. Therefore, the Panel finds pursuant to Policy ¶ 4(a)(i) that Respondent’s <yelpbot.com> domain name is confusingly similar to YELP. See Rebecca Minkoff, LLC v. Mara Bolorin, D2012-1423 (WIPO Oct. 30, 2012) (finding <bunge-group.com> “virtually identical and confusingly similar to Complainant’s mark because it incorporates the BUNGE mark in its entirety and adds the term “group” and a hyphen, which do nothing to distinguish the domain name from the mark…”).
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, absent evidence of Policy ¶4(c) circumstances 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. See Charter Communications Holding Company, LLC v. Taha Shaikh / Tskdesigners, FA 1814475 (Forum Nov. 25, 2018) (finding no rights or legitimate interests in <spectrumfeature.com> because complainant never gave respondent permission to use the mark in any manner and “Panels may use these assertions as evidence that no rights or legitimate interests exist in a disputed domain name.”).
The WHOIS information for <yelpbot.com> indicates that “Avtukhov Evhenyy Iurevych” is the domain name’s registrant and there is nothing in the record that tends to otherwise prove that Respondent is known by <yelpbot.com>. As such, the Panel finds that Respondent is not commonly known by the at-issue domain name under Policy ¶ 4(c)(iii). See Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Forum July 17, 2006) (concluding that the respondent was not commonly known by the <coppertown.com> domain name where there was no evidence in the record, including the WHOIS information, suggesting that the respondent was commonly known by the disputed domain name).
Respondent’s at-issue domain name addresses a webpage that refers to Complainant and may deceive webpage visitors into believing they are dealing with Complainant. The webpage allows businesses that have listed on Yelp to quickly and automatically respond to communications from potential customers who have, through Complainant’s services, expressed an interest in connecting with such businesses. By providing autoresponder services at its webpage, the at-issue domain name facilitates a scheme to mislead consumers and manipulate Complainant’s algorithm by making it appear that businesses are actually responding to their potential customers while in fact the response is an automated reply initiated by Respondent’s autoresponder. Using the confusingly similar domain name in this manner is not indicative of a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor of a non-commercial or fair use under Policy ¶ 4(c)(iii). See Mulberry Co. (Design) Ltd. v. Chen, D2010-1718 (WIPO Nov. 26, 2010) (“[The] disputed domain names are being used by the Respondent for websites which falsely appear to be affiliated, connected or associated with the Complainant. In this Panel’s view, such use and purpose of the disputed domain names without the authorization of the trade mark owner shows that the Respondent is not making a legitimate noncommercial or fair use of the disputed domain names or a bona fide offering of goods and services.”).
Given the forgoing, Complainant satisfies its initial burden under Policy ¶ 4(a)(ii) and demonstrates Respondent’s lack of rights and lack of legitimate interests in respect of the at-issue domain name.
As discussed below without being exhaustive, bad faith circumstances are present which lead the Panel to conclude that Respondent acted in bad faith pursuant to the Policy.
Respondent’s at-issue domain name addresses Respondent’s <yelpbot.com> webpage and may deceive internet users into falsely believing that the domain name and the webpage are sponsored by Complainant. Respondent’s use of <yelpbot.com> in this manner is disruptive to Complainant’s business and designed to attract internet users to Respondent’s website by capitalizing on the confusion Respondent created between its <yelpbot.com> domain name and Complainant’s YELP trademark. Respondent’s use of the <yelpbot.com> domain name thus demonstrates Respondent’s bad faith registration and use of <yelpbot.com> under Policy ¶ 4(b)(iii) and Policy ¶ 4(b)(iv). See MySpace, Inc. v. Myspace Bot, FA672161 (Forum May 19, 2006) (holding that the respondent registered and used the <myspacebot.com> domain name in bad faith by diverting internet users seeking the complainant’s website to its own website for commercial gain because the respondent likely profited from this diversion scheme); see also, Am. Univ. v. Cook, FA208629 (Forum Dec. 22, 2003) (“Registration and use of a domain name that incorporates another’s mark with the intent to deceive Internet users in regard to the source or affiliation of the domain name is evidence of bad faith.”); see also, Crocs, Inc. v. Chustz, FA0706001002536 (Forum July 24, 2007) (finding bad faith where respondent’s use of complainant’s mark in its domain was “capitalizing on the illusion of direct affiliation with Complainant’s business and goodwill”).
Next, using a robot or other device to interface with Complainant’s business-consumer connection services likely violates Complainant’s terms of service. Respondent’s use of the confusingly similar domain name to abet the violation of a complainant’s terms of services further indicates Respondent’s bad faith. See Google LLC v. Registration Private / Domains By Proxy, LLC / Domain Registrar / SilentRegister.com, FA1920698 (Forum Dec. 18, 2020) (finding bad faith in a disputed domain name that enabled users to violate the terms of service of the Complainant); see also, Amazon Technologies, Inc. v. Kurc Oksana, FA1804001780758 (Forum May 9, 2018) (noting that, in addition to violating state and federal laws, “Respondent’s use of the disputed domain names to offer services that facilitate violation of Complainant’s terms of service is further evidence of bad faith.”).
Moreover, Respondent registered <yelpbot.com> knowing that Complainant had trademark rights in YELP. Respondent’s prior knowledge of Complainant’s trademark is evident from the notoriety of Complainant’s trademark and from Respondent’s use of <yelpbot.com> to enable Respondent’s YELP dependent parasitic business model. Respondent’s prior knowledge of Complainant's YELP trademark additionally indicates that Respondent registered and used the <yelpbot.com> domain name in bad faith 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").
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <yelpbot.com> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: August 11, 2023
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