DECISION

 

POLLO OPERATIONS, INC. v. Jake Rustenhoven

Claim Number: FA2507002166097

 

PARTIES

Complainant is POLLO OPERATIONS, INC. ("Complainant"), represented by Janet C. Moreira of Caldera Law, Florida, USA. Respondent is Jake Rustenhoven ("Respondent"), Iowa, USA.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <pollolistens.vip>, registered with NameCheap, 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.

 

Charles A. Kuechenmeister, Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to Forum electronically on July 16, 2025; Forum received payment on July 16, 2025.

 

On July 17, 2025, NameCheap, Inc. confirmed by e-mail to Forum that the <pollolistens.vip> 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 ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy").

 

On July 21, 2025, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint setting a deadline of August 11, 2025 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@pollolistens.vip. Also on July 21, 2025, 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 12, 2025, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Charles A. Kuechenmeister 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 a Response or any other submittal from Respondent.

 

RELIEF SOUGHT

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

 

PARTIES' CONTENTIONS

A.       Complainant

Complainant provides restaurant services. It has rights in the POLLO TROPICAL mark based upon its registration of that mark with the United States Patent and Trademark Office (USPTO). The domain name is identical or confusingly similar to Complainant's mark as it incorporates the dominant POLLO element of the mark, merely adding the generic term "listens" and the ".vip" generic top level domain (gTLD).

 

Respondent has no rights or legitimate interests in the domain name. Complainant has not authorized or licensed him to use its mark, he is not commonly known by the domain name, he registered the domain name long after Complainant acquired rights in its mark, and he is not using the domain name in connection with a bona fide offering of goods or services or for a legitimate noncommercial or fair use but instead is using it to attract internet traffic to his pay-per-click website.

 

Respondent registered and uses the domain name in bad faith. He is using it to attract for commercial gain internet users to his website by creating confusion with Complainant's mark as to the source, sponsorship, affiliation or endorsement of his website, he registered it in violation of Policy ¶ 2, and he registered it to prevent Complainant from registering the domain name to advertise and promote its products.

 

B. Respondent

Respondent did not submit a Response in this proceeding.

 

FINDINGS

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 a complainant to prove each of the following three elements to obtain an order cancelling or transferring a domain name:

 

(1)       the domain name registered by the respondent is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and

(2)       the 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, pursuant to paragraphs 5(f), 14(a) and 15(a) of the Rules the Panel will decide this administrative proceeding on the basis of Complainant's undisputed representations 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 as true unless the evidence is clearly contradictory. Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Forum July 31, 2000) (holding that the respondent's failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true). Nevertheless, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. 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"), WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (WIPO Overview 3.0), at ¶ 4.3 ("In cases involving wholly unsupported and conclusory allegations advanced by the complainant, . . . panels may find that—despite a respondent's default—a complainant has failed to prove its case."). The WIPO Overview is not a definitive statement of applicable law which governs any particular issue, but it does express a consensus among a significant number of UDRP panelists as to how particular issues typically are and should be resolved. This Panel accepts that consensus on this and other issues addressed later in this Decision.

 

The Panel finds as follows with respect to the matters at issue in this proceeding:

 

Identical and/or Confusingly Similar

The POLLO TROPICAL mark was registered to Complainant, formerly known as El Pollo Tropical, Inc.¹, with the USPTO (Reg. No. 1,795,420) on September 28, 1993 (USPTO registration certificate included in Complaint Exhibit 3).  Complainant's registration of its mark with the USPTO establishes its rights in that mark for the purposes of Policy ¶ 4(a)(i).  DIRECTV, LLC v. The Pearline Group, FA 1818749 (Forum Dec. 30, 2018) ("Complainant's ownership of a USPTO registration for DIRECTV demonstrates its rights in such mark for the purposes of Policy ¶ 4(a)(i).").   

 

Respondent's <pollolistens.vip> domain name is identical or confusingly similar to Complainant's POLLO TROPICAL mark. It fully incorporates the dominant POLLO element of the mark, merely omitting the space and the TROPICAL element and adding the term "listens" and a gTLD. These changes do not distinguish the domain name from Complainant's mark for the purposes of Policy ¶ 4(a)(i).  Health Republic Insurance Company v. Gustavo Winchester, FA 1622089 (Forum July 7, 2015) ("Domain name syntax requires TLDs. Domain name syntax prohibits spaces. Therefore, omitted spacing and adding a TLD must be ignored when performing a Policy ¶ 4(a)(i) analysis."), MTD Products Inc v J Randall Shank, FA 1783050 (Forum June 27, 2018) ("The disputed domain name is confusingly similar to Complainant's mark as it wholly incorporates the CUB CADET mark before appending the generic terms 'genuine' and 'parts' as well as the '.com' gTLD."), VNY Model Management, Inc. v. Lisa Katz / Domain Protection LLC, FA 1625115 (Forum Aug. 17, 2015) ("Complainant contends that Respondent's domain name is confusingly similar to the VNY MODEL MANAGEMENT mark. The Panel notes that it merely omits the term "management" and pluralizes "model," while adding the gTLD ".com." Previous panels have found the omission of terms to be an insignificant alteration.").  The WIPO Overview 3.0, at ¶ 1.7, states that the test for confusing similarity "typically involves a side-by-side comparison of the domain name and the textual components of the relevant trademark to assess whether the mark is recognizable within the domain name."  Notwithstanding the changes described above, Complainant's mark is clearly recognizable within the domain name.

 

For the reasons set forth above, the Panel finds that the domain name is identical or confusingly similar to the POLLO TROPICAL mark, in which Complainant has substantial and demonstrated rights. 

 

Rights or Legitimate Interests

If a complainant makes a prima facie case that the respondent lacks rights or legitimate interests in the domain name under Policy ¶ 4(a)(ii), the burden of production shifts to respondent to come forward with evidence that it has rights or legitimate interests in it. 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"). If a respondent fails to come forward with such evidence, the complainant's prima facie evidence will be sufficient to establish that respondent lacks such rights or legitimate interests. If the respondent does come forward with such evidence, the Panel must assess the evidence in its entirety. At all times, the burden of proof remains on the complainant. WIPO Overview 3.0, at ¶ 2.1.

 

Policy ¶ 4(c) lists the following three nonexclusive circumstances, any one of which if proven can demonstrate a respondent's rights or legitimate interests in a domain name for the purposes of Policy ¶ 4(a)(ii):

 

(i)                      Before any notice to the respondent of the dispute, the respondent's use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services;

(ii)                      The respondent (as an individual, business or other organization) has been commonly known by the domain name, even if the respondent has acquired no trademark or service mark rights; or

(iii)                      The respondent is making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.

Complainant asserts that Respondent has no rights or legitimate interests in the domain name because (i) Complainant has not authorized or licensed him to use its mark, (ii) he is not commonly known by the domain name, (iii) he registered the domain name long after Complainant acquired rights in its mark, and (iv) he is not using the domain name in connection with a bona fide offering of goods or services or for a legitimate noncommercial or fair use but instead is using it to attract internet traffic to his pay-per-click website.  These allegations are addressed as follows:

 

Complainant states that it has not authorized or licensed Respondent to use its POLLO TROPICAL mark. Complainant has specific competence to make this statement, and it is unchallenged by any evidence before the Panel. In the absence of evidence that a respondent is authorized to use a complainant's mark in a domain name or that a respondent is commonly known by the disputed domain name, the respondent may be presumed to lack rights or legitimate interests in the domain name. IndyMac Bank F.S.B. v. Eshback, FA 830934 (Forum Dec. 7, 2006) (finding that the respondent failed to establish rights and legitimate interests in the <emitmortgage.com> domain name as the respondent was not authorized to register domain names featuring the complainant's mark and failed to submit evidence that it is commonly known by the domain name), Indeed, Inc. v. Ankit Bhardwaj / Recruiter, FA 1739470 (Forum Aug. 3, 2017) ("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.").

 

The information furnished to Forum by the registrar lists the named Respondent as the registrant of the domain name. This name bears no resemblance to the domain name. Evidence could, of course, in a given case demonstrate that the respondent is commonly known by a name other than the name in which it registered the domain name, e.g., the case of a domain name incorporating the brand name of a specific product offered by and associated with the respondent. In the absence of any such evidence, however, and in cases where no response has been filed, UDRP panels have consistently held that WHOIS evidence of a registrant name which does not correspond with the domain name is sufficient to prove that the respondent is not commonly known by the domain name. 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), Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (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 Panel is satisfied that the Respondent has not been commonly known by the domain name.

 

Complainant argues that Respondent has no rights or legitimate interest in part because Respondent registered the domain long after Complainant acquired rights in its mark. That might be relevant in the context of the Policy ¶ 4(a)(iii) bad faith analysis, but it does not demonstrate a lack of rights or legitimate interests. Policy ¶ 4(c) permits a respondent to demonstrate rights or legitimate interests by proving that any one of the three circumstances listed in that paragraph exists with respect to its domain name. In order to establish a prima facie  case, a complainant must present evidence on each of those circumstances. The fact that a complainant's mark was acquired before the domain name was registered does not negate the existence of any of them.

 

Complaint Annex 9 consists of screenshots of the website resolving from the domain name. The second two pages contain images relating to Complainant's website at <pollolistens.com>, but the remaining pages contain hyperlinks to other service providers, including for Everglades Equipment, #1 legal, and two other vendors not related to the restaurant business. The site is commercial in nature. Respondent is using the confusingly similar domain name to attract Internet traffic to his commercial pay-per-click site. This is neither a bona fide offering of goods or services within the meaning of Policy ¶ 4(c)(ii) nor a legitimate noncommercial or fair use within the meaning of Policy ¶ 4(c)(iv). Bank of Am. Corp. v. Nw. Free Cmty. Access, FA 180704 (Forum Sept. 30, 2003) ("Respondent's demonstrated intent to divert Internet users seeking complainant's website to a website of Respondent and for Respondent's benefit is not a bona fide offering of goods or services under Policy ¶ 4(c)(i) and it is not a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii)"), Vance Int'l, Inc. v. Abend, FA 970871 (Forum June 8, 2007) (concluding that the operation of a pay-per-click website at a confusingly similar domain name does not represent a bona fide offering of goods or services or a legitimate noncommercial or fair use, regardless of whether or not the links resolve to competing or unrelated websites or if the respondent is itself commercially profiting from the click-through fees).

 

The evidence furnished by Complainant establishes the required prima facie case. On that evidence, and in the absence of any evidence from Respondent, the Panel finds that Respondent has no rights or legitimate interests in the domain name.

 

Registration or Use in Bad Faith

Policy ¶ 4(a)(iii) requires Complainant to prove that the domain name has been registered and is being used in bad faith. Policy ¶ 4(b) sets forth a nonexclusive list of four circumstances, any one of which if proven would be evidence of bad faith use and registration of a domain name. They are as follows:

 

(i)                      circumstances indicating that the respondent has registered or acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant which is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of the respondent's documented out-of-pocket costs directly related to the domain name; or

(ii)                      the respondent has registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that the respondent has engaged in a pattern of such conduct; or

(iii)                      the respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or

(iv)         by using the domain name, the respondent has intentionally attempted to attract, for commercial gain, Internet users to the respondent's web site 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 the respondent's web site or location or of a product of service on the respondent 's web site or location.

 

The concept of bad faith as illustrated in the above four subparagraphs necessarily involves a subjective intent on the part of a respondent knowingly to trade upon the goodwill of the complainant. The respondent must intentionally have targeted the complainant's mark. Such subjective intent would in turn require that the respondent actually knew of the complainant and its rights in the relevant mark when it registered the domain name. Renu Medispa, LLC v Angela Sattler/Aesthetics, FA2503002143814 (Forum April 28, 2025) ("A foundational question under ¶ 4(a)(iii) is whether or not Respondent had knowledge of Complainant or its claimed trademark at the time it registered the disputed domain name.").

 

In attempting to discern actual knowledge and a subjective bad faith intent, panels have looked at many different types of evidence, including but not limited to use of a domain name in direct competition with a trademark owner, impersonation, the parties operating in the same market segment, the parties being physically located in the same general geographic area, a pattern of bad faith conduct, actual prior association between or among the parties, the distinctive or famous nature of the trademark, suggesting that any similarity is not happenstance. Importantly, allegations about a respondent's subjective intention are not evidence in this regard.

 

In cases such as this, where no Response has been filed, it can be difficult to determine whether a respondent registered a domain name with actual knowledge of the complainant and its rights in the mark. In this case, however, it is clear that Respondent had actual knowledge of Complainant when he registered the domain name in January 2024 (WHOIS printout submitted as Complaint Annex 1 shows registration date). The second two pages of his website relate to and furnish information about Complainant's website at <pollolistens.com>. They both display one of Complainant's numerous registered logos at the top, and they both invite visitor comments on Complainant's restaurants. Respondent had actual knowledge of Complainant when he registered the domain name, and it is likewise evident that he intentionally targeted Complainant when he did so.

 

Respondent's registration of the domain name prevents Complainant from reflecting its mark in a corresponding domain name, as contemplated in Policy ¶ 4(b)(ii), but that paragraph also requires complainant to prove a pattern of such conduct. No evidence of pattern is present, however, so Respondent's conduct has not been proven to fit within the circumstances set forth in that paragraph.

 

As discussed in the rights and legitimate interests analysis, Respondent's website hosts pay-per-click links to other commercial entities. Respondent is using the confusingly similar domain name to attract, for commercial gain, Internet users to its web site by creating a likelihood of confusion with the Complainant's mark as to the source, sponsorship, affiliation or endorsement of its website, as described in Policy ¶ 4(b)(iv). Pay-per-click sites are common on the Internet. Under the most common forms of business arrangements relating to these sites, when a visitor to the site clicks on one of the links which appear there, the site sponsor receives compensation from the various web site owners who are forwarded from the site. In most cases, the site sponsor receives compensation based upon the number of hits the downstream web site owners get from being linked to Respondent's web site. AllianceBernstein LP v. Texas International Property Associates, Case No. D2008-1230 (WIPO, 2008) (the domain name resolved to a search directory site with links to third-party vendors and the panel inferred that the respondent received click-through-fees when site visitors clicked on those links), Brownells, Inc. v. Texas International Property Associates, Case No. D2007-1211 (WIPO, 2007), (finding in similar cases that a respondent intentionally attempted to attract internet searchers for commercial gain). Respondent's use of the domain name is commercial also because the sponsor of the website forwarded from Respondent's website benefits from the subsequent interest and purchases of those who visit the site. UDRP panels have held that there only needs to be commercial gain sought by some party for the use to be commercial. Focus Do It All Group v. Athanasios Sermbizis, Case No. D2000-0923 (WIPO,2000) (finding that "[I]t is enough that commercial gain is being sought for someone" for a use to be commercial).

 

For the reasons above set forth above, the Panel finds that Respondent registered and is using the domain name in bad faith within the meaning of Policy ¶ 4(a)(iii).  Because the foregoing evidence amply demonstrates bad faith registration and use, the Panel does not address Complainant's argument with respect to Policy ¶ 2.

 

DECISION

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

 

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

 

 

Charles A. Kuechenmeister, Panelist

August 13, 2025