DECISION

 

Maplebear Inc. d/b/a Instacart v. Christian Rivera

Claim Number: FA2404002092648

 

PARTIES

Complainant is Maplebear Inc. d/b/a Instacart ("Complainant"), represented by Lisa Greenwald-Swire of Fish & Richardson P. C., Minnesota, USA. Respondent is Christian Rivera ("Respondent"), Texas, USA.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <instacart.ing>, registered with Wild West Domains, LLC.

 

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.

 

Héctor Ariel Manoff as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to Forum electronically on April 10, 2024; Forum received payment on April 10, 2024.

 

On April 12, 2024, Wild West Domains, LLC confirmed by e-mail to Forum that the <instacart.ing> domain name is registered with Wild West Domains, LLC and that Respondent is the current registrant of the name. Wild West Domains, LLC has verified that Respondent is bound by the Wild West Domains, 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 April 16, 2024, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 6, 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@instacart.ing. Also on April 16, 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 May 7, 2024, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Héctor Ariel Manoff 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

1- Instacart operates a multi-sided technology and communications platform via the Instacart websites (Instacart.com and Instacart.ca) and its smartphone application that facilitates fast on-demand grocery and consumer goods delivery and pick-up services in the United States and Canada.

2- Instacart first use was in 2012.

3- Complainant has strong common law rights and owns numerous trademark registrations for the INSTACART mark in more than 20 territories.

4- Complainant controls various INSTACART domain names, including <Instacart.com>, <Instacart.ca>, <Instacart.biz>, <Instacart.io>, <Instacart.team>, and many others.

5- Panels have already deemed the INSTACART mark to be well known.

6- Respondent registered <instacart.ing> in December 2023, which directs to a blank landing page that reflects no content.

7- Respondent has registered the disputed domain name for the specific purpose of holding the domain.

8- The domain name is identical or confusingly similar to Complainant's trademark.

9- Respondent has no rights or legitimate interests in the domain name.

10- The domain name was registered and is being used in bad faith.

11- Respondent has not shown any actual or contemplated good faith use of the disputed domain name.

12- It is not the first time that Respondent is involved in bad faith registration and use of domain name that belong to a trademark owner.

 

B. Respondent

Respondent failed to submit a Response in this proceeding.

 

FINDINGS

Complainant was founded in 2012 and operates a multi-sided technology and communications platform via the Instacart websites (Instacart.com and Instacart.ca) to facilitate fast on-demand grocery and consumer goods delivery and pick-up services in the United States and Canada. In addition to its strong common law rights, Instacart owns numerous trademark registrations for the INSTACART mark in more than 20 territories. Respondent registered <instacart.ing> which directs to a blank landing page that reflects no content.

 

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 owns trademark registrations for INSTACART marks in the United States (Annex 8) with first use in 2012 and other countries around the world (Annex 10) in connection with a platform to facilitate fast on-demand grocery and consumer goods delivery and pick-up services in the United States and Canada.

 

Complainant owns various INSTACART domain names, including <Instacart.com>, <Instacart.ca>, <Instacart.biz>, <Instacart.io>, <Instacart.team>, and many others. (Annex 11).

 

The Disputed Domain Name incorporates Complainant's INSTACART mark and the top-level domain .ing. (See also Metro-Goldwyn-Mayer Studios Inc. v. Antigua Domains, FA 1073020 (Forum Oct. 17, 2007) ("the inclusion of the generic top-level domain '.com' is inconsequential to the Policy ¶ 4(a)(i) analysis, as a top-level domain is required of all domain names.") As the <instacart.ing> domain name consists entirely of the Complainant's INSTACART mark and a TLD, the Panel finds that it is identical or confusingly similar to the mark under Policy ¶ 4(a)(i)).

 

This Panel finds that Complainant has proved trademark rights on INSTACART and the disputed domain name is confusingly similar to that trademark.

 

The Panel finds that the domain name is almost identical and confusingly similar to Complainant marks under 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.").

 

The Panel finds that Respondent has no rights or legitimate interests in the <instacart.ing> domain name because Maplebear Inc. d/b/a Instacart has not authorized Respondent to use the INSTACART mark. 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)").

 

Respondent does not have any trademark rights in the <instacart.ing> domain name and according to Annex 2 Respondent is not name named or commonly known by the business name Instacart.

 

Thus, this Panel concludes that Respondent does not appear to be commonly known by the <instacart.ing> domain name. Chevron Intellectual Property LLC v. Fred Wallace, FA 1626022 (Forum July 27, 2015) (finding that the respondent was not commonly known by the <chevron-europe.com> domain name under Policy ¶ 4(c)(ii), as the WHOIS information named "Fred Wallace" as registrant of the disputed domain name).

 

The evidence submitted by Complainant shows that Respondent's use of the <instacart.ing> domain is not a bona fide offering of goods. (Annex 14). Respondent's website at the Disputed Domain Name directs to a blank landing page that reflects no content.

 

This Panel finds that Respondent is not using the domain name in connection with a legitimate noncommercial use or fair use under Policy 4(c)(iii).

 

Therefore, the Panel agrees that Respondent is not commonly known by the disputed domain name does not have legitimate interest under Policy ¶ 4(a)(ii).

 

Registration and Use in Bad Faith

This Panel finds that Complainant has proved that Respondent registered the disputed domain name several years after Complainant's first use and registration of the trademark INSTACART.

 

The <instacart.ing> domain name includes Complainant's trademark with the addition of the generic TLD ".ing".

 

This Panel finds that based on the registration date of Complainant´s trademarks and domain names, and first use of INSTACART it is clear that Respondent had previous knowledge of the fact that the trademark belonged to Complainant.

 

In addition, Respondent has not shown good faith use of the disputed domain name. The site directs to a blank landing page without content. See VideoLink, Inc. v. Xantech Corporation, FA 1608735 (Forum May 12, 2015) ("Failure to actively use a domain name is evidence of bad faith registration and use pursuant to Policy ¶ 4(a)(iii)."). See Love City Brewing Company v. Anker Fog / Love City Brewing Company, FA 1753144 (Forum Nov. 27, 2017) (finding that Respondent disrupts Complainant's business by pointing internet users to an expired webpage. This may create the perception that Complainant is closed, never existed, or is not a legitimate business. Therefore, the Panel finds that Respondent registered and uses the disputed domain name in bad faith per Policy ¶ 4(b)(iii).).

 

Complainant has proved that it is not the first time that Respondent is involved in bad faith registration and use of domain name. There is a prior case in which Respondent was ordered to transfer the domain name <bloomberg.ing>. Bloomberg Finance L.P. v. Christian Rivera, FA 2088517 (Apr. 9, 2024).

 

In this respect prior Panels have stated that this behavior (registration of other domain names which include third-party trademarks) is evidence of bad faith under UDRP ¶ 4(b)(ii). See Twentieth Century Fox Film Corporation v. oranges arecool XD / orangesarecool.com, FA 1558045 (Forum July 10, 2014) (finding that the prior adverse UDRP history was evidence of bad faith registration and use of the domain names under Policy ¶ 4(b)(ii)); see also Mediacom Communications Corporation v. beats, FA 2082274 (Forum Apr. 4, 2024). 

 

The Panel determines that Respondent registered and used the disputed domain name in bad faith under Policy ¶ 4(a)(iii).

 

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 <instacart.ing> domain name be TRANSFERRED from Respondent to Complainant.

 

 

 

Héctor Ariel Manoff, Panelist

Dated: May 16, 2024