DECISION

 

Walmart Apollo, LLC v. mei liu

Claim Number: FA2510002181865

 

PARTIES

Complainant is Walmart Apollo, LLC ("Complainant"), represented by Fatima Y. Kassem of Brooks Kushman P.C., Michigan, USA. Respondent is mei liu ("Respondent"), China.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <penandgears.com>, registered with Name.com, 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.

 

James Bridgeman SC as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to Forum electronically on October 9, 2025; Forum received payment on October 9, 2025.

 

On October 9, 2025, Name.com, Inc. confirmed by e-mail to Forum that the <penandgears.com> domain name is registered with Name.com, Inc. and that Respondent is the current registrant of the name. Name.com, Inc. has verified that Respondent is bound by the Name.com, 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 October 13, 2025, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 3, 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@penandgears.com. Also on October 13, 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 November 4, 2025, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed James Bridgeman SC 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 disputed domain name be transferred from Respondent to Complainant.

 

PARTIES' CONTENTIONS

A. Complainant

Complainant claims rights in the PEN+GEAR mark established by its ownership of the portfolio of trademark registrations described below and at common law by extensive use of the mark on its range of writing instruments and stationery products.

 

Complainant submits it has an extensive business reputation. In an annex to the Complaint, it has exhibited a copy of its annual report illustrating the extent of its business. Specifically, Complainant submits that each week, approximately 240 million customers and members visit more than 10,500 stores and numerous eCommerce websites in 20 countries. In the fiscal year 2024 its revenue of $648.1 billion. It employs approximately 2.1 million associates worldwide. It operates nearly 10,000 stores around the world, with over 4,000 stores in the United States.

 

Complainant asserts that it has been using its PEN+GEAR trademark in United States commerce since at least as early as 2017. It markets its PEN+GEAR branded goods online and via its downloadable mobile application. Complainant submits that its mobile application is available on the Apple App Store and Google PlayStore. The mobile application has been downloaded from the Google Play Store over 100 million times with 5.47 million reviews and has 13.6 million ratings at the Apple App Store, as shown in a screen capture exhibited in an annex to the Complaint.

 

Complainant firstly alleges that the disputed domain name is identical or confusingly similar to the PEN+GEAR mark in which it has rights. Complainant argues that the disputed domain name, <penandgears.com>, fully incorporates and is identical to the PEN+GEAR trademark and is therefore confusingly similar to Complainant's trademark.

 

Complainant adds that minor alterations to Complainant's mark, specifically replacing the plus sign "+" with the word "and" and adding the letter "s" to the element "GEAR" do not avoid confusing similarity. See, e.g., NY and Co IP, LLC v. Carolina Rodrigues, FA 1969021 (Forum Nov. 26, 2021) ("Abbreviating a trademark and/or replacing a symbol with its corresponding word is generally insufficient to distinguish a domain name from a trademark under Policy 4(a)(i)."),

 

Secondly Complainant alleges that Respondent has no rights or legitimate interests in the disputed domain name arguing that:

·       Respondent is not affiliated with Complainant, and Respondent's use of the PEN+GEAR Trademarks are unauthorized;

·       the disputed domain name incorporates the PEN+GEAR Trademarks without authorization, and the sole apparent use is to attract users searching for PEN+GEAR goods in order to trick and divert them to purchase goods from Respondent's website;

·       such use does not give rise to rights or legitimate interests under the Policy. See Invesco Ltd. v. Premanshu Rana, FA 1733167 (Forum July 10, 2017) ("Use of a domain name to divert Internet users to a competing website is not a bona fide offering of goods or services or a legitimate noncommercial or fair use.");

·       Respondent is clearly using the PEN+GEAR trademarks on its website to attract Complainant's customers to purchase competing or counterfeit products;

·       Respondent created the website to which the disputed domain name resolves purporting to be an official online store where buyers could purchase the Complainant's branded goods, which is designed to give the appearance of an association with the Complainant; however, in reality, the website is fraudulent and is not authorized by Complainant;

·       the disputed domain name incorporates the Complainant's registered mark without authorization and is being used for a fraudulent website that directs consumers to purchase goods that compete with PEN+GEAR branded goods. It is therefore evident that the Respondent intends to disrupt the Complainant's business.

 

Referring to a screen capture of the website to which the disputed domain name resolves, Complainant submits that it illustrates that the disputed domain name points to a site that falsely presents itself as an official website associated with Complainant's PEN+GEAR brand and products. Complainant submits that such use does not create a legitimate interest. See, eBay Inc. v. Mohd. mohd.Danish / westernenterprises, FA 1756923 (Forum Dec. 1, 2017) (finding lack of rights or legitimate interests under similar circumstances in which the disputed domain was being used for an online retail website displaying the EBAY mark in a font and color scheme similar to that used by Complainant, with a site design similar to that of Complainant's site, and in which the site was being used for a phishing scheme aimed at gathering information from consumers).

 

Complainant adds that using a confusingly similar domain name to impersonate and pass off as and sell the same types of products as Complainant does not qualify as a bona fide offering of goods or services within the meaning of Policy ¶ 4(c)(i), or as a legitimate noncommercial or fair use within the meaning of Policy ¶ 4(c)(iii). Netflix, Inc. v. Irpan Panjul / 3corp.inc, FA 1741976 (Forum Aug. 22, 2017) ("The usage of Complainant's NETFLIX mark which has a significant reputation in relation to audio visual services for unauthorized audio-visual material is not fair as the site does not make it clear that there is no commercial connection with Complainant and this amounts to passing off . . . As such the Panelist finds that Respondent does not have rights or a legitimate interest in the Domain Name."),

 

Thirdly Complainant submits that the disputed domain name was registered and is being used in bad faith arguing that:-

 

Upon information and belief, Respondent had, at a minimum, constructive knowledge of the PEN+GEAR trademark registrations at the time Respondent registered the disputed domain name. Complainant submits that such knowledge may be inferred based on Complainant's registration of the PEN+GEAR trademark with the United States Patent and Trademark Office and the well-known nature of the brand that has been in operation since 2017. See Kate Spade, LLC v. Darmstadter Designs, WIPO Case No. D2001-1384 ("Had Respondent done a trademark search at the time Respondent registered the domain name at issue, Respondent would have received notice of Complainant's [rights]…").

 

Additionally, Respondent's actual knowledge of Complainant's rights in the PEN+GEAR trademark when Respondent registered the disputed domain name,  is evident given the PEN+GEAR brand's notoriety. 

 

Given Respondent's use of the trademark laden disputed domain name to pass itself off as Complainant and offer merchandise for sale similar to Complainant's offering. See, AutoZone Parts, Inc. v. Ken Belden, FA 1815011 (Forum Dec. 24, 2018) ("Complainant contends that Respondent's knowledge can be presumed in light of the substantial fame and notoriety of the AUTOZONE mark, as well as the fact that Complainant is the largest retailer in the field. The Panel here finds that Respondent did have actual knowledge of Complainant's mark, demonstrating bad faith registration and use under Policy ¶ 4(a)(iii).").

 

Complainant submits that it strains credibility that Respondent might have been oblivious of the existence of the Complainant's widely known and widely used PEN+GEAR marks when registering the disputed domain name.

 

Addressing use of the disputed domain name in bad faith, Complainant adds that the disputed domain name is used to assist Respondent in passing off as Complainant to deceive internet users into falsely believing that the domain name and its referenced website are sponsored by Complainant. Respondent's website promotes products that are identical to Complainant's PEN+GEAR products. Respondent's use of the disputed domain name demonstrates Respondent's bad faith registration and use of the disputed domain name under Policy ¶ 4(b)(iii) and Policy ¶ 4(b)(iv). See ZIH Corp. v. ou yang lin q, FA 1761403 (Forum Dec. 29, 2017) (Finding bad faith where Respondent used the infringing domain name to disrupt Complainant's business by diverting Internet users from Complainant's website to Respondent's website where it offered competing printer products).

 

Further referring to the exhibited screen capture of the website to which the disputed domain name resolves, Complainant points out that in the header and footer of the website, there are social media icons that appear to link to Respondent's official Facebook, X, YouTube, and Instagram profiles. However, these icons are inactive and do not direct users to any actual social media pages. It is contended that this raises concerns and suggests an attempt to give the false impression of legitimacy.

 

Additionally, Complainant submits that under the "CONTACT US" tab and in the footer of the disputed domain name's website, the address listed— 2904 Evergreen Lane, Irvine, CA — is not a legitimate address not associated with any business or corporation, including the Respondent.

 

The fact that Respondent uses false contact information on its website undermines the Respondent's claim to legitimate interests in the domain. Complainant argues that Respondent is clearly acting in bad faith with the intention to mislead consumers. See Farouk Systems, Inc. v. Jack King / SLB, FA 1618704 (Forum Jun. 19, 2015) (finding bad faith registration and use pursuant to Policy ¶ 4(a)(iii) where the respondent had provided false contact information when registering the disputed domain name).

 

B. Respondent

Respondent failed to submit a Response in this proceeding.

 

FINDINGS

Complainant is multinational retail corporation operating a chain of hypermarkets, discount department stores, and grocery stores and uses the PEN+GEAR mark to distinguish its writing instruments and stationery goods.

Complainant has provided evidence that it is the owner of a portfolio of registrations for the mark including:

·       United States registered trademark PEN+GEAR registration number 5351828, registered on the Principal Register on December 5, 2017 for goods in international class 21;

·       United States registered trademark PEN+GEAR registration number 5352231, registered on the Principal Register on December 5, 2017 for goods in international classes 20 and 21;

·       United States registered trademark PEN+GEAR registration number 5352232, registered on the Principal Register on December 5, 2017 for goods in international class 16.

 

Complainant has an established Internet presence and maintains its principal website at <www.walmart.com> on which it has a section for marketing stationery products bearing its PEN+GEAR mark. Complainant's own domain name <walmart.com> was registered on February 23, 1995.

 

The disputed domain name <penandgears.com>, was registered on March 5, 2025 and resolves to a website that purports to offer for sale pens, pencils and other stationery products which are presented as bearing Complainant's PEN+GEAR mark; and which prominently displays the PEN+GEAR mark on the website's banner. The website also uses the words  "PEN GEAR" as the name of the website owner; and contains an invitation to Internet visitors to "Subscribe and get A (sic) discount"

 

There is no information available about Respondent except for that provided in the Complaint as amended, the Registrar's WhoIs and the information provided by the Registrar in response to the request by Forum for details of the registration of the disputed domain name for the purposes of this proceeding. Respondent concealed its identity on the published WhoIs by availing of a privacy service.

 

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 has provided uncontested convincing evidence of its rights in the PEN+GEAR mark established by its the ownership of the abovementioned trademark registrations and extensive use of the mark in the sale of writing instruments and stationery products.

 

The disputed domain name <penandgears.com> contains Complainant's mark in its entirety, merely replacing the word "and" with the plus sign (+) and adding the letter "s" to the end of the element "gear" to create a plural.

 

The substitution of the word "and" by the mathematical function symbol, and the additional letter "s" do not prevent a finding of confusing similarity between the disputed domain name and Complainant's mark.

 

Furthermore, the gTLD extension <.com> may be ignored for the purposes of comparing the mark and the disputed domain name, because it would be considered by Internet users to be a necessary technical element for a domain name.

 

This Panel finds therefore that the disputed domain name is identical to the PEN+GEAR mark in which Complainant has rights and Complainant has therefore succeeded in the first element of the test in Policy ¶ 4(a)(i).

 

Rights or Legitimate Interests

Complainant has made out a prima facie case that the Respondent has no rights legitimate interests in the disputed domain names as set out in Complainant's detailed submissions above.

 

The presence of Complainant's PEN+GEAR mark, both with and without the plus sign, throughout the website to which the disputed domain name resolves, supports a prima facie case that Respondent is taking advantage of Complainant's rights in circumstances where it has no rights or legitimate interests of its own.

 

It is well established that once a complainant makes out a prima facie case that a respondent has no rights or legitimate interests in the domain name at issue, the burden of production shifts to the respondent to prove its rights or legitimate interests.

 

Respondent has failed to discharge that burden and therefore this Panel must find that Respondent has no rights or legitimate interests in the disputed domain name.

 

Complainant has therefore succeeded in the second element of the test in Policy ¶ 4(a)(ii)

 

Registration and Use in Bad Faith

The disputed domain name was registered on March 5, 2025 long after the first use and registration of the PEN+GEAR mark by Complainant. Complainant's registered trademarks described above were each registered on December 5, 2017

 

It is improbable that the registrant of the disputed domain name was unaware of Complainant and its PEN+GEAR mark when the disputed domain name was chosen and registered.

 

There appears to be no plausible reason for registering the disputed domain name other than to create an association with Complainant and its Halloween fancy goods.

 

On the balance of probabilities, therefore, this Panel finds that the disputed domain name was in fact chosen and registered with Complainant's mark in mind with the intention of taking predatory advantage of Complainant's rights and goodwill in the PEN+GEAR mark. The uncontested evidence in the form of the screen capture of the website to which the disputed domain name resolves shows that Respondent is using the disputed domain name as its internet website address purporting to impersonate Complainant.

 

Complainant uses the PEN+GEAR mark extensively across its website on which it purports to market a range of writing instruments and stationery products. Such use of the disputed domain name within the website address supports this finding of registration in bad faith and furthermore supports Complainant's submission that the disputed domain names is being used in bad faith.

 

There is a strong indication that Respondent is using the website to which the disputed domain name resolves to engage in phishing by collecting consumer information. It is not necessary to decide whether Complainant has proven this point.

 

The uncontested evidence is that Respondent's use of the dominant elements of Complainant's trademark within the addresses of Respondent's website is on the balance of probabilities intentionally intended to attract and confuse Internet users and cause them to divert their Internet traffic intended for Complainant and misdirect it to Respondent's website by creating a likelihood of confusion with Complainant's mark as to the source, sponsorship, affiliation, or endorsement of your web site, which constitutes bad faith for the purposes of the Policy.

 

As this Panel has found that each of the disputed domain names was registered and is being used in bad faith, Complainant has succeeded in the third element of the test in 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 <penandgears.com> domain name be TRANSFERRED from Respondent to Complainant.

 

 

 

 

James Bridgeman SC

Panelist

Dated: November 5, 2025