O’Neill Beverages Co. LLC v. James Alen
Claim Number: FA1904001841058
Complainant is O’Neill Beverages Co. LLC (“Complainant”), represented by Nate Garhart of Farella Braun + Martel LLP, California, USA. Respondent is James Alen (“Respondent”), North Carolina, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <oneillbeveragescollc.com>, registered with NameCheap, Inc.
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.
Kenneth L. Port as Panelist.
Complainant submitted a Complaint to the Forum electronically on April 29, 2019; the Forum received payment on April 29, 2019.
On May 3, 2019, NameCheap, Inc. confirmed by e-mail to the Forum that the <oneillbeveragescollc.com> 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 May 6, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 28, 2019 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@oneillbeveragescollc.com. Also on May 6, 2019, 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, the Forum transmitted to the parties a Notification of Respondent Default.
On May 28, 2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Kenneth L. Port as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the 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, the 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
Complainant, O’Neill Beverages Co. LLC, was established in 2004 and is an international wine and beverages company, and the leading California producer of premium brands, bulk wine, brandy, and spirits for the beverage alcohol trade. Complainant has strong common law rights in the O’NEILL BEVERAGES CO. LLC mark. See Amend. Compl. Ex. C. Respondent’s <oneillbeveragescollc.com> domain name is identical to Complainant’s registered name under which it operates, and is confusingly similar to Complainant’s trade names.
Respondent has no rights or legitimate interests in the <oneillbeveragescollc.com> domain name. Respondent is not affiliated with Complainant, nor has it been licensed or permitted to use Complainant’s mark, represent Complainant, and is not commonly known by the domain name it registered. Further, Respondent also does not use the disputed domain name in connection with a bona fide offering of goods or services or legitimate noncommercial or fair use. Rather, Respondent uses the domain name to engage in a phishing scheme where it impersonates Complainant and purports to offer users a job, subsequently sending a fraudulent check which draws from Complainant’s bank account. See Amend. Compl. Ex. D.
Respondent registered and uses the <oneillbeveragescollc.com> domain name in bad faith. Respondent attempts to confuse, for commercial gain, Respondent’s email recipients into believing its communications were from Complainant, implying a connection that does not exist. See Amend. Compl. Ex. D. Further, Respondent engages in a phishing scheme. Id.
B. Respondent
Respondent failed to submit a Response in this proceeding. Respondent registered the disputed domain name on April 1, 2019.
The Panel finds that the dispute domain name is confusingly similar to Complainant’s trademark; that Respondent has no rights or legitimate interests in or to the disputed domain name; and that Respondent has engaged in bad faith use and registration of the disputed domain name.
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."
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”).
The Panel finds that the disputed domain name, <oneillbeveragescollc.com>, is confusingly similar to Complainant’s valid and subsisting trademark, ONEILL BEVERAGES CO LLC. Complainant has adequately plead its rights and interests in and to this trademark. Respondent arrives at the disputed domain name by merely adding the g TLD “.com” to the precise trademark. This is insufficient to distinguish the disputed domain name from Complainant’s trademark.
As such, the Panel finds that the dispute domain name is confusingly similar to Complainant’s trademark.
The Panel also finds that Respondent has no rights or legitimate interests in or to the disputed domain name. Respondent has no right, permission or license to register the disputed domain name. Respondent is not commonly known by the disputed domain name.
Respondent also does not use the disputed domain name in connection with a bona fide offering of goods or services or legitimate noncommercial or fair use. Rather, Respondent apparently uses the disputed domain name to engage in a phishing scheme where it impersonates Complainant and purports to offer users a job, subsequently sending a fraudulent check which draws from Complainant’s bank account. See Amend. Compl. Ex. D
As such, the Panel finds that Respondent has no rights or legitimate interests in or to the disputed domain name.
The Panel further finds that Respondent has engaged in bad faith use and registration of the dispute domain name. Respondent apparently attempts to confuse, for commercial gain, Respondent’s email recipients into believing its communications were from Complainant, implying a connection that does not exist. Using a confusingly similar domain name to trade upon the goodwill of a complainant’s mark for commercial gain is evidence of bad faith under Policy ¶ 4(b)(iv). See Qatalyst Partners LP v. Devimore, FA 1393436 (Forum July 13, 2011) (finding that using the disputed domain name as an e-mail address to pass itself off as the complainant in a phishing scheme is evidence of bad faith registration and use). Complainant provides examples of a letter allegedly sent through email communication, purporting to offer a payroll assistant position with Complainant’s business. See Amend. Compl. Ex. D. Complainant also provides a screenshot of the check allegedly sent with the letter for $1,650.00. Id.
As such, the Panel finds that Respondent attempted to commercially benefit off Complainant’s mark in bad faith under Policy ¶ 4(b)(iv).
Relatedly, Respondent apparently engages in a phishing scheme. Using a confusingly similar domain name to phish for information can provide independent evidence of bad faith under Policy ¶ 4(a)(iii). See Klabzuba Oil & Gas, Inc. v. LAKHPAT SINGH BHANDARI, FA1506001625750 (Forum July 17, 2015) (“Respondent uses the <klabzuba-oilgas.com> domain to engage in phishing, which means Respondent registered and uses the domain name in bad faith under Policy ¶ 4(a)(iii).”). As mentioned previously, Complainant provides examples of a letter allegedly sent through email communication, purporting to offer a payroll assistant position with Complainant’s business. See Amend. Compl. Ex. D. Complainant also provides a screenshot of the check allegedly sent with the letter for $1,650.00, which Complainant believes eventually ends up in Respondent’s own bank account. Id.
Given the blatant use of Complainant’s trademark and the totality of the circumstances, the Panel further finds that Respondent had actual knowledge of Complainant’s rights and interests in and to this trademark.
As such, the Panel finds that Respondent has engaged in bad faith use and registration of the disputed domain name.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <oneillbeveragescollc.com> domain name be TRANSFERRED from Respondent to Complainant.
Kenneth L. Port, Panelist
Dated: May 31, 2019
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page