DECISION

 

Appliancepartspros.com, Inc. v. JH Kang

Claim Number: FA2401002079903

PARTIES

Complainant is Appliancepartspros.com, Inc. ("Complainant"), represented by Stephen J. Stark of Miller & Martin, PLLC, Tennessee, USA. Respondent is JH Kang ("Respondent"), Republic of Korea.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <appliancepartspro.co>, registered with Dynadot Inc.

 

PANEL

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.

 

Ho-Hyun Nahm, Esq. as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to Forum electronically on January 19, 2024; Forum received payment on January 19, 2024.

 

On January 19, 2024, Dynadot Inc confirmed by e-mail to Forum that the <appliancepartspro.co> domain name is registered with Dynadot Inc and that Respondent is the current registrant of the name. Dynadot Inc has verified that Respondent is bound by the Dynadot 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 January 22, 2024, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 12, 2024 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@appliancepartspro.co. Also on January 22, 2024, 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 February 13, 2024, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Ho-Hyun Nahm, Esq. 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.

 

RELIEF SOUGHT

Complainant requests that the domain name be transferred from Respondent to Complainant.

 

PARTIES' CONTENTIONS

A. Complainant

i) Complainant has rights in the APPLIANCEPARTSPROS.COM mark based upon registration with the United States Patent and Trademark Office ("USPTO") (e.g., Reg. No.3,526,659 registered on November 4, 2008). The disputed domain name is confusingly similar to Complainant's mark APPLIANCEPARTSPROS.COM because it incorporates Complainant's mark, omits the letter "s" and replaces the ".com" gTLD with the ".co" ccTLD.

 

ii) Respondent lacks rights or legitimate interests in the disputed domain name. Respondent first obtained the disputed domain name in 2023, fifteen years after Complainant obtained a trademark registration for its mark APPLIANCEPARTSPROS.COM and twenty-four years after Complainant began using the trademark. The use of links directed to sites selling replacement parts on the disputed domain name was first noticed by Complainant on January 14, 2024. Complainant's mark is believed to be widely recognized in the marketplace with 3,000,000 customers and $35,000,000 in yearly sales.

 

iii) Respondent registered and uses the disputed domain name in bad faith. Respondent resolves the disputed domain name to a parked website, which provides links to Complainant's competitors. Respondent has intentionally attempted to attract, for commercial gain, Internet users to Respondent's website or other on-line location, by creating a likelihood of confusion with Complainant's mark as to the source, sponsorship, affiliation, or endorsement of Complainant's website or location or of a product or service on Complainant's website or location. Respondent's activities disrupt and negatively impact the business of Complainant.

 

B. Respondent

Respondent did not submit a Response in this proceeding.

 

FINDINGS

1. The disputed domain name was registered on October 1, 2023.

 

2. Complainant has established rights in the APPLIANCEPARTSPROS.COM mark based upon registration with the USPTO (e.g., Reg. No.3,526,659 registered on November 4, 2008).

 

3. The disputed domain name resolves to a website, which hosts third-party links relating to Complainant's competitors.

 

DISCUSSION

Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted and 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").

 

Identical and/or Confusingly Similar

Complainant asserts rights in the APPLIANCEPARTSPROS.COM mark based upon registration with the USPTO (e.g., Reg. No.3,526,659 registered on November 4, 2008). Registration of a mark with the USPTO is a valid showing of rights in a mark. Since Complainant provides evidence of registration of the APPLIANCEPARTSPROS.COM mark with the USPTO, the Panel finds that Complainant has established rights in the mark under Policy 4(a)(i).

 

Complainant claims that the disputed domain name <appliancepartspro.co> is confusingly similar to Complainant's APPLIANCEPARTSPROS.COM mark. The addition or omission of a single letter and the replacement of a gTLD with a ccTLD fail to sufficiently distinguish a disputed domain name from a mark per Policy ¶ 4(a)(i). See Webster Financial Corporation and Webster Bank, National Association v. Tanya Moulton, FA2303002034214 (Forum April 11, 2023) ("When a disputed domain name wholly incorporates another's mark, adding a single letter is insufficient to defeat a finding of confusing similarity."; finding <fwebsteronline.com> domain name confusingly similar to WEBSTER and WEBSTER ONLINE trademarks); ModCloth, Inc. v. James McAvoy, FA 1629102 (Forum Aug. 16, 2015) ("The Panel finds that the disputed domain name is confusingly similar to Complainant's mark because it differs from Complainant's mark by merely adding the letter 'L' . . . "); see also CloudFlare, Inc. v. [Registrant], FA 1624251 (Forum Aug. 1, 2015) ("The inclusion of a ccTLD does not alleviate the similarity between a mark and a disputed domain name as per Policy ¶ 4(a)(i)."). Therefore, the Panel finds the disputed domain name is confusingly similar to Complainant's APPLIANCEPARTSPROS.COM  mark per Policy ¶ 4(a)(i).

 

Rights or Legitimate Interests

Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), then the burden shifts to Respondent to show it does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) ("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").

 

Complainant argues that Respondent lacks rights or legitimate interest in the disputed domain name as Respondent first obtained the disputed domain name in 2023, fifteen years after Complainant obtained a trademark registration for its mark APPLIANCEPARTSPROS.COM and twenty-four years after Complainant began using the trademark. Where a response is lacking, WHOIS information may be used to determine whether a respondent is commonly known by the disputed domain name under Policy ¶ 4(c)(ii). 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). Additionally, lack of authorization to use a complainant's mark may indicate that the respondent is not commonly known by the disputed domain name. See Emerson Electric Co. v. golden humble / golden globals, FA 1787128 (Forum June 11, 2018) ("lack of evidence in the record to indicate a respondent is authorized to use [the] complainant's mark may support a finding that [the] respondent does not have rights or legitimate interests in the disputed domain name per Policy ¶ 4(c)(ii)"). The unmasked information for the disputed domain name lists the registrant as "JH Kang" and there is no other evidence to suggest that Respondent was authorized to use the APPLIANCEPARTSPROS.COM mark or was commonly known by the disputed domain name. Therefore, the Panel finds Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii).

 

Complainant further argues that the use of links directed to sites selling replacement parts on the disputed domain name was first noticed by Complainant on January 14, 2024. Complainant's mark is believed to be widely recognized in the marketplace with 3,000,000 customers and $35,000,000 in yearly sales. The Panel finds that Respondent uses the disputed domain name to resolve to a parking website, which hosts third-party links to Complainant's competitors. Such a use is generally not considered to be a bona fide offering of goods of services nor a legitimate noncommercial or fair use. See Morgan Stanley v. Domain Administrator, FA1998681 (Forum July 6, 2022) (Respondent has previously used the disputed domain name as a parking website which hosts third-party links to competitors of Complainant. Such a use is generally not considered to be a bona fide offering of goods of services nor a legitimate noncommercial or fair use.). Complainant provides a screenshot of the resolving webpage of the disputed domain name showcasing third-party links, some of which contain Complainant's competitors. Therefore, the Panel finds that Respondent failed to make a bona fide offering of goods or services or legitimate noncommercial or fair use per Policy ¶ 4(c)(i) or (iii).

 

The Panel finds that Complainant has made out a prima facie case that arises from the considerations above. All of these matters go to make out the prima facie case against Respondent. As Respondent has not filed a Response or attempted by any other means to rebut the prima facie case against it, the Panel finds that Respondent has no rights or legitimate interests in the disputed domain name.

 

Registration and Use in Bad Faith

Complainant asserts that the disputed domain name resolves to a webpage on which third-party advertisements and links of Complainant's competitors are hosted. Respondent has intentionally attempted to attract, for commercial gain, Internet users to Respondent's website or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of Complainant's website or location or of a product or service on Complainant's website or location. Respondent's activities disrupt and negatively impact the business of Complainant.

 

The Panel is of the view that hosting hyperlinks that compete with a complainant may be evidence of bad faith under Policy ¶ 4(b)(iv). See Morgan Stanley v. Domain Administrator, FA1998681 (Forum July 6, 2022) (Hosting hyperlinks that compete with a complainant may be evidence of bad faith under Policy ¶ 4(b)(iv).). The Panel recalls that Complainant has provided a screenshot of the disputed domain name's resolving website, which contains links to third-party websites offering "replacement appliance parts" related to Complainant's business. Therefore, the Panel finds that Respondent registered and uses the disputed domain name in bad faith under Policy ¶ 4(b)(iv).

 

DECISION

Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.

 

Accordingly, it is Ordered that the <appliancepartspro.co> domain name be TRANSFERRED from Respondent to Complainant.

 

 

 

Ho-Hyun Nahm, Esq., Panelist

Dated: February 14, 2024