DECISION

 

Woot.com LLC v. Redacted for Privacy / Privacy service provided by Withheld for Privacy ehf

Claim Number: FA2402002084571

 

PARTIES

Complainant is Woot.com LLC ("Complainant"), represented by David J. Diamond of Richard Law Group, Inc., Texas, USA. Respondent is Redacted for Privacy / Privacy service provided by Withheld for Privacy ehf ("Respondent"), Iceland.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <woot.eu.com> ('the Domain Name'), registered with NameCheap, Inc.

 

PANEL

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.

 

PROCEDURAL HISTORY

Complainant participated in the mandatory CentralNic Mediation, and the mediation process was terminated.

 

Complainant submitted a Complaint to Forum electronically on February 20, 2024; Forum received payment on February 20, 2024.

 

On February 20, 2024, NameCheap, Inc. confirmed by e-mail to Forum that the <woot.eu.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 the CentralNic Dispute Resolution Policy (the "CDRP Policy").

 

On February 22, 2024, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 13, 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@woot.eu.com. Also on February 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 March 14, 2024 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 to the CDRP Dispute Resolution Policy ("Rules"). Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the CDRP Policy, CDRP 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

The Complainant is the owner of, inter alia, the trade marks WOOT and WOOT! and a green exclamation logo mark, all registered, inter alia, in the USA for retail services with first use of WOOT and the Complainant's green exclamation logo mark recorded as 2004.

 

The Domain Name registered in 2023 is confusingly similar to the Complainant's WOOT trade mark adding only the second level and gTLD designation eu.com which does not distinguish the Domain Name from the Complainant's mark.

 

The Respondent does not have rights or a legitimate interest in the Domain Name, is not commonly known by it and has not been authorised by the Complainant.

 

The Domain Name has been used for a site appearing to be an official site of the Complainant using its WOOT! Mark in its logo form in the masthead and its exclamation logo as a favicon, and featuring a log in screen. The site also uses the Complainant's trade dress including its monkey characters and green colour scheme, the Complainant's physical address and its terms and conditions and privacy policies copied without permission. This is phishing and does not constitute 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 confusing Internet users for commercial gain and disrupting the Complainant's business. Phishing is bad faith per se.

 

The Respondent has been the subject of three adverse decisions under the UDRP for using domain names containing the Complainant's WOOT mark for similar sites to the Respondent's site in this case showing a pattern of bad faith activity.

 

B. Respondent

Respondent failed to submit a Response in this proceeding.

 

FINDINGS

The Complainant is the owner of the trade marks WOOT and WOOT!, and a green exclamation logo mark all registered, inter alia, in the USA for retail services with first use of WOOT and the Complainant's green exclamation logo mark recorded as 2004.

 

The Domain Name registered in 2023 has been used for a site appearing to be an official site of the Complainant using its mark and logo in the masthead, its exclamation logo as a favicon and featuring a log in screen. The site also uses the Complainant's monkey characters and green colour trade dress, its physical address and its terms and conditions and privacy policies copied without permission. The Respondent has been the subject of three adverse decisions under the UDRP for using domain names containing the Complainant's WOOT mark for similar sites to the Respondent's site in this case.

 

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 or is being used in bad faith.

 

The CDRP also requires that Complainant have participated in a CentralNic Mediation, and that said mediation must have been terminated prior to the consideration of the Complaint.

        

Given the similarity between the Uniform Domain Name Dispute Resolution Policy ("UDRP") and the CDRP Policy, the Panel will draw upon UDRP precedent as applicable in rendering its decision.

 

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

The Domain Name consists of the Complainant's WOOT mark (registered, inter alia in the USA for retail services with first use recorded as 2004) and the second level and gTLD designation 'eu.com'.

 

The addition of a second level and gTLD designation such as 'eu.com' does not serve to distinguish the Domain Name from the Complainant's mark, which is the distinctive component of the Domain Name. See Dansko, LLC v. zhang wu, FA 1757745 (Forum Dec. 12, 2017) (finding the <danskoshoes.us.com> domain name to be confusingly similar to the DANSKO mark despite the addition of the ".us" ccTLD and the ".com" gTLD). 

 

Accordingly, since the Domain Name consists of only the Complainant's mark and the second level and gTLD designation 'eu.com' the Panel holds that the Domain Name is identical for the purpose of the Policy to a mark in which the Complainant has rights.

 

Rights or Legitimate Interests

The Complainant has not authorised the use of its marks. 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 is not legitimate non commercial fair use.

 

The web site attached to the Domain Name has been used for a page appearing to be an official site of the Complainant using its mark and WOOT! logo in the masthead, its exclamation logo as a favicon and elements of the Complainant's trade dress such as its monkey characters and green colour scheme. The site also uses the Complainant's physical address and its terms and conditions and privacy policies copied without permission. The site features a log in screen and appears to be gathering information for phishing purposes. Under Policy 4(c)(i) and (iii), the use of a disputed domain name to impersonate the Complainant in furtherance of a phishing scheme is not considered a bona fide offering of goods or services or legitimate noncommercial or fair use. See Enterprise Holdings, Inc. v. I S / Internet Consulting Services Inc., FA 1785242 (Forum June 5, 2018) ("On its face, the use of a domain name that is confusingly similar to the mark of another in order to facilitate a phishing scheme cannot be described as either a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶4(c)(iii).")

 

The Respondent has not answered this Complaint or 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 or Use in Bad Faith

In the opinion of the panelist the use made of the Domain Name in relation to the Respondent's site is confusing and disruptive in that visitors to the site might reasonably believe it is connected to or approved by the Complainant as it uses the Complainant's mark and logo for a copycat site with a log in screen. The use of the Complainant's logos, monkey characters, colour scheme, address and terms and conditions and privacy policies shows that the Respondent is aware of the Complainant and its business.

 

Accordingly, the Panel holds that the Respondent has intentionally attempted to attract for commercial gain Internet users to its website by creating a likelihood of confusion with the Complainant's trade mark as to the source, sponsorship, affiliation or endorsement of the web site and services offered on it likely to disrupt the business of the Complainant.  See BBY Solutions, Inc. v. Grant Ritzwoller, FA 1703389 (Forum Dec. 21, 2016) (finding bad faith because the <bestbuyus.com> domain name was obviously connected with the complainant's BEST BUY mark, thus creating a likelihood of confusion),

 

Also there appears to be collection of log in details for phishing purposes. see also 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 United States Postal Service v. kyle javier, FA 1787265 (Forum June 12, 2018) ("Use of a domain name to phish for Internet users' personal information is evidence of bad faith."). 

 

The Complainant has been the subject of three adverse decisions under the UDRP for using domain names containing the Complainant's WOOT mark for similar sites to the Respondent's site in this case indicating a pattern of bad faith activity. See Twentieth Century Fox Film Corporation v. oranges arecool XD / orangesarecool.com, FA 1558045 (Forum July 10, 2014) (finding that the respondent's prior adverse UDRP history was evidence of bad faith registration and use of the domain names under Policy ¶ 4(b)(ii)).

 

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)(ii), (iii) and (iv).

 

DECISION

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

 

Accordingly, it is Ordered that the <woot.eu.com> domain name be TRANSFERRED from Respondent to Complainant.

 

 

 

Dawn Osborne, Panelist

Dated: March 14, 2024