DECISION

 

Gallup, Inc. v. Carolina Rodrigues / Fundacion Comercio Electronico

Claim Number: FA2404002092817

 

PARTIES

Complainant is Gallup, Inc. ("Complainant"), represented by Richard P. Jeffries of Cline Williams Wright Johnson & Oldfather, L.L.P., Nebraska, USA. Respondent is Carolina Rodrigues / Fundacion Comercio Electronico ("Respondent"), Panama.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <gallupaccess.com>, registered with GoDaddy.com, LLC.

 

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 April 11, 2024; Forum received payment on April 11, 2024.

 

On April 11, 2024, GoDaddy.com, LLC confirmed by e-mail to Forum that the <gallupaccess.com> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, 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 12, 2024, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 2, 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@gallupaccess.com. Also on April 12, 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 3, 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 is the owner of the mark GALLUP, a registered trademark. The mark GALLUP has been in use by Complainant as a mark for its public opinion polling and related services since 1935. GALLUP, as a mark, has been used to designate Complainant's world-famous polling services as well as printed materials and educational and consulting services. Complainant has rights in the GALLUP, inter alia, based upon registration with the United States Patent and Trademark Office ("USPTO") (e.g., Reg. No. 2,242,387 registered on May 4, 1999). The disputed domain name is confusingly similar to Complainant's GALLUP mark because it incorporates Complainant's mark in its entirety, merely adding the descriptive word "access" and the ".com" gTLD.

 

ii) Respondent has no rights or legitimate interest in the disputed domain name. Respondent is not commonly known by the disputed domain name. Respondent's use of the disputed domain name is not in connection with a bona fide offering of goods or services. The disputed domain's resolving website attempts to disable all user controls in the browser, and requests that the user call a telephone phone number associated with "Microsoft," purportedly to remove "malware." This phone number and website are likely parts of an illegitimate attempt at social engineering.

 

iii) Respondent registered and uses the disputed domain name in bad faith. Despite policing its own marks, which include "Gallup Access," which designates an online service Complainant offers the customers, Complainant is not aware of any product or service that uses the mark "Gallup Access" or "gallupaccess.com" in connection with that product or service.

 

B. Respondent

Respondent did not submit a Response in this proceeding.

 

FINDINGS

1. The disputed domain name was registered on June 3, 2019.

 

2. Complainant has established rights in the GALLUP, inter alia, based upon registration with the USPTO (e.g., Reg. No. 2,242,387 registered on May 4, 1999). 

 

3. The disputed domain's resolving website attempts to disable all user controls in the browser, and requests that the user call a telephone phone number associated with "Microsoft," purportedly to remove "malware."

 

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 GALLUP mark, inter alia, based upon registration with the USPTO (e.g., Reg. No. 2,242,387 registered on May 4, 1999). Registration of a mark with the USPTO is a valid showing of rights under Policy ¶ 4(a)(i). Since Complainant has provided evidence of registration of the GALLUP mark with the USPTO, the Panel finds that Complainant has established rights in the mark under Policy ¶ 4(a)(i).

 

Complainant contends that the disputed domain name <gallupaccess.com> is confusingly similar to Complainant's GALLUP mark. Adding a generic term and a gTLD fails to sufficiently distinguish a disputed domain name from a mark per Policy ¶ 4(a)(i). See Empowered Medical Solutions, Inc. d/b/a QRS-Direct and QRS Magnovit AG v. NULL NULL / QUANTRON RESONANCE SYSTEMS / JIM ANDERSON / HTR / unknown HTR / HTR, FA 1784937 (Forum June 8, 2018) ("Adding or removing descriptive terms or a gTLD is insufficient to differentiate a disputed domain name from a complainant's mark under Policy ¶ 4(a)(i)."). The Panel notes that the disputed domain name incorporates Complainant's mark in its entirety, merely adding the generic word "access" and the ".com" gTLD. Therefore, the Panel finds that the disputed domain name is confusingly similar to Complainant's GALLUP 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 contends that Respondent has no rights or legitimate interests in the disputed domain name. Where a response is lacking, relevant information includes the WHOIS and any other assertions by a complainant regarding the nature of its relationship with a respondent. See Amazon Technologies, Inc. v. Suzen Khan / Nancy Jain / Andrew Stanzy, FA 1741129 (Forum Aug. 16, 2017) (finding that respondent had no rights or legitimate interests in the disputed domain names when the identifying information provided by WHOIS was unrelated to the domain names or respondent's use of the same). The Panel notes that the unmasked WHOIS information identifies "Carolina Rodrigues / Fundacion Comercio Electronico" as the registrant. Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).

 

Complainant argues Respondent is not using the disputed domain name for any bona fide offering of goods or services, nor any noncommercial or fair use because the disputed domain name is used to disable all user controls in the browser, and requests that the user call a telephone phone number associated with "Microsoft," purportedly to remove "malware." Where a disputed domain name is used to download malware or to disable all user controls in the browser, the Panel may find the respondent fails to make a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii). See Coachella Music Festival, LLC v. Carolina Rodrigues / Fundacion Comercio Electronico, FA 1785199 (Forum June 5, 2018) ("Respondent uses the <coechella.com> domain name to direct internet users to a website which is used to attempt to install malware on visiting devices. Using the domain name in this manner is neither a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor a non-commercial or fair use under Policy ¶ 4(c)(iii)."). Complainant provides a screenshot of the disputed domain name's resolving website, which attempts to disable all user controls in the browser, and requests that the user call a telephone phone number associated with "Microsoft," purportedly to remove "malware." Therefore, the Panel finds that Respondent fails to use the disputed domain name for a bona fide offering of goods or services or legitimate noncommercial or fair use under 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 argues that Respondent registered and uses the disputed domain name in bad faith as the disputed domain name is used to disable all user controls in the browser, and requests that the user call a telephone phone number associated with "Microsoft," purportedly to remove "malware" where this phone number and website are likely parts of an illegitimate attempt at social engineering. Complainant is not aware of any legitimate business known as Gallup Access. Despite policing its own marks, which include "Gallup Access," which designates an online service Complainant offers the customers, Complainant is not aware of any product or service that uses the mark "Gallup Access" or "gallupaccess.com" in connection with that product or service. 

 

Where a disputed domain name is used to download malware or to disable all user controls in the browser, the Panel may find the respondent uses the disputed domain name in bad faith per Policy ¶ 4(a)(iii). See Asbury Communities, Inc. v. Tiffany Hedges, FA 1785054 (Forum June 18, 2018) ("The Panel here finds that Respondent [installation of malware] further support the conclusion that Respondent registered and used the <asburymethodistvillage.com> domain name in bad faith under Policy ¶ 4(a)(iii)"). As previously noted, Complainant provides evidence of the disputed domain name being used to disable all user controls in the browser requesting that the user call a telephone phone number associated with "Microsoft," purportedly to remove "malware." The Panel agrees and finds that Respondent registered and uses the disputed domain name in bad faith per 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 <gallupaccess.com> domain name be TRANSFERRED from Respondent to Complainant.

 

 

 

Ho-Hyun Nahm, Esq., Panelist

Dated: May 5, 2024