SimpliSafe, Inc. v. Ghati Web Solutions
Claim Number: FA2001001880157
Complainant is SimpliSafe, Inc. (“Complainant”), represented by Joshua M. Dalton of Morgan, Lewis & Bockius LLP, Massachusetts, USA. Respondent is Ghati Web Solutions (“Respondent”), India.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <simplisafelogin.net>, 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.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on January 22, 2020; the Forum received payment on January 22, 2020.
On January 23, 2020, NameCheap, Inc. confirmed by e-mail to the Forum that the <simplisafelogin.net> 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 January 24, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 13, 2020 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@simplisafelogin.net. Also on January 24, 2020, 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 February 17, 2020, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Richard Hill 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 states that it is an award-winning maker of smart home security systems. Founded in 2006, Complainant was the first company in America to offer homeowners professional-grade monitored home security with no long-term contract. Complainant’s products and services now protect over 3 million people, and the company remains committed to its founding goal: to make every home secure. Complainant has rights in the SIMPLISAFE mark based upon the registration in the United States in 2015.
Complainant alleges that the disputed domain name is confusingly similar to its mark as it incorporates the mark in its entirety and merely adds the generic term “login” and the “.net” generic top-level domain (“gTLD”). Complainant cites UDRP precedents to support its position.
According to Complainant, Respondent does not have rights or legitimate interests in the disputed domain name. Respondent is not permitted or licensed to use Complainant’s SIMPLISAFE mark and is not commonly known by the disputed domain name. Additionally, Respondent is not using the disputed domain name to make a bona fide offering of goods or services or for a legitimate non-commercial or fair use. Rather, Respondent uses the disputed domain name to mimic Complainant and divert Internet users to Respondent’s website where Respondent hosts a phishing scheme. A website security service lists the resolving website as potentially malicious and blocks access to it. Complainant cites UDRP precedents to support its position.
Further, says Complainant, Respondent has registered and uses the disputed domain name in bad faith. Respondent is attempting to attract Internet users to its competing website for commercial gain. Additionally, Respondent used a privacy service to conceal its identity. Finally, Respondent had actual knowledge or constructive notice of Complainant’s SIMPLISAFE mark prior to registering the disputed domain name. Complainant cites UDRP precedents to support its position.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns the mark SIMPLISAFE and uses it to market smart home security systems.
Complainant’s rights in its mark dates back to at least 2015.
The disputed domain name was registered in 2019.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
The resolving website displays Complainant’s mark and mimics Complainant’s legitimate website in furtherance of a phishing scheme.
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 disputed domain name incorporates Complainant’s mark in its entirety and merely adds the generic term “login” and the “.net” gTLD. Additions of a generic and/or descriptive terms and a gTLD to a complainant’s mark does not negate any confusing similarity between a disputed domain name and mark under Policy ¶ 4(a)(i). See Microsoft Corporation v. Thong Tran Thanh, FA 1653187 (Forum Jan. 21, 2016) (determining that confusing similarity exist where [a disputed domain name] contains Complainant’s entire mark and differs only by the addition of a generic or descriptive phrase and top-level domain, the differences between the domain name and its contained trademark are insufficient to differentiate one from the other for the purposes of the Policy.); see alsoTrip Network Inc. v. Alviera, FA 914943 (Forum Mar. 27, 2007) (concluding that the affixation of a gTLD to a domain name is irrelevant to a Policy ¶ 4(a)(i) analysis). Thus the Panel finds that the <simplisafelogin.net> is confusingly similar to Complainant’s SIMPLISAFE mark per Policy ¶ 4(a)(i).
Respondent is not authorized to use Complainant’s SIMPLISAFE mark and is not commonly known by the disputed domain name: where a response is lacking, WHOIS information can support a finding that a respondent is not commonly known by the disputed domain name. See 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.). Here, the WHOIS information of record identifies registrant as “Ghati Web Solutions.” The Panel therefore finds under Policy ¶ 4(c)(ii) that Respondent has not been commonly known by the disputed domain name.
The resolving website mimics Complainant’s legitimate website, prominently displaying Complainant’s mark, and includes a fake customer support page that is used for a phishing scheme. Specifically, users are invited to enter their login information, and/or to engage in a live chat in by providing their name and telephone number so that an “Expert” can “call you right away and walk you through next steps.” Use of a domain name to pass off as a complainant in order to host a phishing scheme may be evidence that a respondent does not make a bona fide offering of goods or services or a legitimate noncommercial or fair use of a disputed domain name under Policy ¶¶ 4(c)(i) or (iii). See Bittrex, Inc. v. Caroline Alves Maia, FA 1796113 (Forum Aug. 6, 2018) (finding the respondent lacked rights and legitimate interests in the domain name because it used the name to resolve to a website virtually identical to the complainant’s to prompt users to enter their login information so that the respondent may gain access to that customer’s cryptocurrency account); see also DaVita Inc. v. Cynthia Rochelo, FA1738034 (Forum July 20, 2017) (“Passing off in furtherance of a phishing scheme is not considered a bona fide offering of goods or services or legitimate noncommercial or fair use.”). Accordingly, the Panel finds that Respondent fails to use the disputed domain to make a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). And the Panel finds that Respondent does not have rights or legitimate interests in the disputed domain name.
Respondent (who did not reply to Complainant’s contentions) has not presented any plausible explanation for its use of Complainant’s mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain name.
Indeed, as already noted, the resolving webpage mimics Complainant’s legitimate website in furtherance of a phishing scheme. Using a confusingly similar domain name to pass off as a complainant for a phishing scheme can evince bad faith registration and use per Policy ¶ 4(b)(iv). See Garmin Switzerland GmbH v. Ramnik Singh / alphabyte, FA1910001868285 (Forum Dec. 5, 2019) (“Here, the Panel again notes that Complainant provides a screenshot of the disputed domain name’s resolving webpage where Respondent appears to phish for Internet users’ personal information via a fraudulent customer support page. The Panel here finds that Respondent has engaged in disruption and attraction for commercial gain which supports a finding of bad faith registration and use under Policy ¶¶ 4(b)(iii) and/or (iv).”). Therefore, the Panel finds that Respondent registered and uses the disputed domain name in bad faith pursuant Policy ¶ 4(b)(iii) and/or (iv).
Further, Respondent registered the disputed domain name with actual knowledge of Complainant’s mark: the resolving webpage displays Complainant’s mark and some of its products, which in turn display the mark. While constructive notice is insufficient to demonstrate bad faith, actual knowledge of a complainant’s rights in a mark prior to registration may be evidence of bad faith per Policy ¶ 4(a)(iii). See Custom Modular Direct LLC v. Custom Modular Homes Inc., FA 1140580 (Forum Apr. 8, 2008) (“There is no place for constructive notice under the Policy.”); see also Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum Feb. 6, 2014) (“The Panel notes that although the UDRP does not recognize ‘constructive notice’ as sufficient grounds for finding Policy ¶ 4(a)(iii) bad faith, the Panel here finds actual knowledge through the name used for the domain and the use made of it.”); see also Univision Comm'cns Inc. v. Norte, FA 1000079 (Forum Aug. 16, 2007) (rejecting the respondent's contention that it did not register the disputed domain name in bad faith since the panel found that the respondent had knowledge of the complainant's rights in the UNIVISION mark when registering the disputed domain name). The Panel finds that Respondent had actual knowledge of Complainant’s rights in the mark prior to Respondent’s registration of the disputed domain name and that this constitutes bad faith under Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <simplisafelogin.net> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: February 17, 2020
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