Claim Number: FA0705000987034
Complainant is United States Postal Service (“Complainant”), represented by Christopher
T. Pierson, of Lewis and
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <e-uspsmailroom.com>, registered with Enom, Inc.
The undersigned certifies that she has acted independently and impartially and to the best of her knowledge has no known conflict in serving as Panelist in this proceeding.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On
On May 17, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of June 6, 2007 by which Respondent could file a response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent's registration as technical, administrative and billing contacts, and to postmaster@e-uspsmailroom.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration 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." Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the National Arbitration Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <e-uspsmailroom.com> domain name is confusingly similar to Complainant’s USPS.COM mark.
2. Respondent does not have any rights or legitimate interests in the <e-uspsmailroom.com> domain name.
3. Respondent registered and used the <e-uspsmailroom.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Respondent, Gary Brown, registered the <e-uspsmailroom.com> domain name on October 4, 2004. Respondent is using the disputed domain name to redirect Internet users to Respondent’s website resolving from the domain name <certified-mail-envelopes.com>, which advertises competing goods and services. Complainant has alleged upon information and belief that Respondent operates this competing business under the company name “USCertifiedLetters, LLC.”
Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable."
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(e), 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 and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. 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); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
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.
Complainant successfully registered the USPS.COM mark with the USPTO on January 23, 2001. Under the Policy, registration of a mark with an appropriate governmental authority confers rights in that mark. Therefore, the Panel finds that Complainant has established rights in the USPS.COM mark pursuant to Policy ¶ 4(a)(i). See Expedia, Inc. v. Emmerson, FA 873346 (Nat. Arb. Forum Feb. 9, 2007) (“Complainant’s trademark registrations with the USPTO adequately demonstrate its rights in the [EXPEDIA] mark pursuant to Policy ¶ 4(a)(i).”); see also Enter. Rent-A-Car Co. v. Language Direct, FA 306586 (Nat. Arb. Forum Oct. 25, 2004) (finding that the complainant, who registered the ENTERPRISE RENT-A-CAR mark with the USPTO, successfully established rights in the mark).
Respondent’s <e-uspsmailroom.com> domain name contains Complainant’s USPS.COM mark in its entirety and adds an “e-” at the beginning as well as the generic terms “mail” and “room.” In Crédit Lyonnais v. Ass’n Etre Ensemble, D2000-1426 (WIPO Dec. 7, 2000), the panel found that the additions of the letter “e” and a hyphen do not affect the power of the mark in determining confusing similarity. In Allianz of Am. Corp. v. Bond, FA 680624 (Nat. Arb. Forum June 2, 2006), the panel found that the addition of the generic term “finance,” which described the complainant’s financial services business, did not sufficiently distinguish the respondent’s disputed domain name from the complainant’s mark under Policy ¶ 4(a)(i). Like the disputed domain name in Crédit, Respondent’s <e-uspsmailroom.com> domain name adds an “e-” that the Panel finds does not affect the mark when determining confusing similarity. Like the disputed domain name in Allianz, Respondent’s <e-uspsmailroom.com> domain name adds generic terms – “mail” and “room” – which describe Complainant’s business. Therefore, the Panel concludes that Respondent’s disputed domain name is confusingly similar to Complainant’s USPS.COM mark pursuant to Policy ¶ 4(a)(i).
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant has alleged that Respondent does not have rights or legitimate interests in the <e-uspsmailroom.com> domain name. Once Complainant makes a prima facie case in support of its allegations, the burden then shifts to Respondent to show it does have rights or legitimate interests pursuant to Policy ¶ 4(a)(ii). See G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum Oct. 1, 2002) (holding that, where the complainant has asserted that respondent does not have rights or legitimate interests with respect to the domain name, it is incumbent on respondent to come forward with concrete evidence rebutting this assertion because this information is “uniquely within the knowledge and control of the respondent”). Since Respondent has not responded to the Complaint, the Panel will examine the record to determine if Respondent has rights or legitimate interests pursuant to Policy ¶ 4(c).
Complainant has alleged that Respondent is not commonly known by the <e-uspsmailroom.com> domain name. The WHOIS information identifies Respondent as “Gary Brown,” and Complainant has asserted that Respondent is doing business under the name “USCertifiedLetters, LLC.” There is no other evidence in the record indicating that Respondent is commonly known by the disputed domain name. Therefore, the Panel concludes that Respondent is not commonly known by the <e-uspsmailroom.com> domain name pursuant to Policy ¶ 4(c)(ii). See also M. Shanken Commc’ns v. WORLDTRAVELERSONLINE.COM, FA 740335 (Nat. Arb. Forum Aug. 3, 2006) (finding that the respondent was not commonly known by the <cigaraficionada.com> domain name under Policy ¶ 4(c)(ii) based on the WHOIS information and other evidence in the record).
Respondent is using the <e-uspsmailroom.com> domain name to
redirect Internet users to Respondent’s website resolving from the domain name
<certified-mail-envelopes.com>, which advertises competing goods and
services. The Panel finds that this use
of the disputed domain name does not constitute a bona fide offering of goods and services under Policy ¶ 4(c)(i) or
a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See
Am. Int’l Group, Inc. v. Benjamin, FA
944242 (Nat. Arb. Forum May 11, 2007) (finding that the respondent’s use of a
confusingly similar domain name to advertise real estate services which
competed with the complainant’s business did not constitute 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)); see also Coryn Group, Inc. v. Media Insight, FA 198959 (Nat. Arb. Forum Dec. 5, 2003) (finding that
the respondent was not using the domain names for a bona fide offering
of goods or services nor a legitimate noncommercial or fair use because the
respondent used the names to divert Internet users to a website that offered
services that competed with those offered by the complainant under its marks).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Respondent is using the <e-uspsmailroom.com> domain name to redirect Internet users to Respondent’s website resolving from the domain name <certified-mail-envelopes.com>, which advertises competing goods and services. Complainant has alleged that this is likely to disrupt its business under Policy ¶ 4(b)(iii). The Panel agrees, and finds that Respondent’s use of the disputed domain name is likely to divert customers to Respondent’s website. The Panel concludes that Respondent registered and is using the <e-uspsmailroom.com> domain name in bad faith pursuant to Policy ¶ 4(b)(iii). See Spark Networks PLC v. Houlihan, FA 653476 (Nat. Arb. Forum Apr. 18, 2006) (holding that the respondent’s registration of a domain name substantially similar to the complainant’s AMERICAN SINGLES mark in order to operate a competing online dating website supported a finding that the respondent registered and used the domain name to disrupt the complainant’s business under Policy ¶ 4(b)(iii)); see also EthnicGrocer.com, Inc. v. Latingrocer.com, FA 94384 (Nat. Arb. Forum July 7, 2000) (finding bad faith where the respondent’s sites pass users through to the respondent’s competing business).
Complainant has alleged that Respondent’s <e-uspsmailroom.com> domain name, which is
confusingly similar to Complainant’s USPS.COM mark, is likely to cause
confusion among customers searching for Complainant’s goods and services. Customers may become confused as to the
affiliation, endorsement, or sponsorship of the competing goods and services advertised
on Respondent’s website. Respondent is
using this likelihood of confusion in an attempt to attract Internet users for
commercial gain. Therefore, the Panel also
finds that Respondent registered and is using the <e-uspsmailroom.com>
domain name in bad faith pursuant to Policy ¶ 4(b)(iv). See AOL LLC v. AIM Profiles, FA 964479 (Nat.
Arb. Forum May 20, 2007) (finding that the respondent registered and used the
disputed domain name in bad faith pursuant to Policy ¶ 4(b)(iv) because the
respondent was commercially gaining from the likelihood of confusion between
the complainant’s AIM mark and the competing instant messaging products and
services advertised on the respondent’s website which resolved from the
disputed domain name); see also Asbury
Auto. Group, Inc. v.
The Panel finds that Policy ¶ 4(a)(iii) has been satisfied.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <e-uspsmailroom.com> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: June 18, 2007
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