PopSockets LLC v. Rao QQ
Claim Number: FA2001001880307
Complainant is PopSockets LLC (“Complainant”), represented by Benjamin T. Horton of Marshall, Gerstein & Borun LLP, Illinois, USA. Respondent is Rao QQ (“Respondent”), Florida, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <poppinggrip.com>, registered with NameCheap, 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 Forum electronically on January 23, 2020; the Forum received payment on January 23, 2020.
On January 24, 2020, NameCheap, Inc. confirmed by e-mail to the Forum that the <poppinggrip.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 January 27, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 18, 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@poppinggrip.com. Also on January 27, 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 21, 2020, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Sandra J. Franklin 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
1. Respondent’s <poppinggrip.com> domain name is confusingly similar to Complainant’s POPGRIP mark.
2. Respondent does not have any rights or legitimate interests in the <poppinggrip.com> domain name.
3. Respondent registered and uses the <poppinggrip.com> domain name in bad faith.
B. Respondent failed to file a Response in this proceeding.
Complainant, PopSockets LLC., is a provider of grip and mount accessories for handheld electronic devices. Complainant has rights in a number of trademarks that incorporate the word “pop” such as POP, POPGRIP, POPSOCKETS, and others, through its registration with multiple government registration agencies including the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 5,757,735, registered May 21, 2019 for POPGRIP, and Reg. No. 5,662,835, registered Jan. 22, 2019 for POP.
Respondent registered the <poppinggrip.com> domain name on July 28, 2019, and uses it to pass off as Complainant.
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”).
Once Complainant makes a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), the burden shifts to Respondent to show it does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also 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”).
Complainant argues that Respondent has no rights or legitimate interests in the <poppinggrip.com> domain name, as Respondent is not commonly known by the disputed domain name. Complainant has not authorized Respondent to use the POPGRIP mark in any way. The WHOIS information of record identifies the registrant of the disputed domain name as “Rao QQ.” Therefore, the Panel finds that Respondent is not commonly known by the <poppinggrip.com> domain name, and thus has no rights under Policy ¶ 4(c)(ii). See Philip Morris USA Inc. v. Usama Ramzan, FA 1737750 (Forum July 26, 2017) (“We begin by noting that Complainant contends, and Respondent does not deny, that Respondent has not been commonly known by the <marlborocoupon.us> domain name, and that Complainant has not authorized Respondent to use the MARLBORO mark in any way. Moreover, the pertinent WHOIS information identifies the registrant of the domain name only as “Usama Ramzan,” which does not resemble the domain name. On this record, we conclude that Respondent has not been commonly known by the challenged domain name so as to have acquired rights to or legitimate interests in it within the purview of Policy ¶ 4(c)(ii).”).
Complainant also argues that Respondent fails to use the disputed domain name for a bona fide offering of goods or services or a legitimate noncommercial or fair use. Complainant claims that Respondent attempts to pass itself off as Complainant by selling unauthorized but purportedly authentic versions of Complainant’s products. The use of a disputed domain name to pass off as a complainant and sell or advertise complainant’s products is not a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii). See Wolverine World Wide, Inc. v. Fergus Knox, FA 1627751 (Forum Aug. 19, 2015) (finding no bona fide offering of goods or legitimate noncommercial or fair use existed where Respondent used the resolving website to sell products branded with Complainant’s MERRELL mark, and were either counterfeit products or legitimate products of Complainant being resold without authorization); see also Summit Group, LLC v. LSO, Ltd., FA 758981 (Forum Sept. 14, 2006) (finding that the respondent’s use of the complainant’s LIFESTYLE LOUNGE mark to redirect Internet users to respondent’s own website for commercial gain does not constitute either 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)). Complainant provides screenshots of the website that resolves from <poppinggrip.com> where Respondent refers to its products as “popsockets” and “poppinggrips.” A visit to the “F&Q” (presumably intended to be “FAQ”) displays the question “How is the Quality?” along with the answer “We’re the original factory. None do better than us.” The Panel finds that Respondent that this is not a bona fide offering of goods or services or a legitimate noncommercial or fair use, and thus Respondent has no rights under Policy ¶¶ 4(c)(i) or (iii).
Complainant contends that Respondent engages in typosquatting by incorporating the gerund or present participle version of POP in POPGRIP into its <poppinggrip.com> domain name. Typosquatting, the practice of deliberately introducing typographical errors or misspellings into a trademark and then using the string in a domain name, indicates bad faith registration and use under Policy ¶ 4(a)(iii). See Cost Plus Management Services, Inc. v. xushuaiwei, FA 1800036 (Forum Sep. 7, 2018) (“Typosquatting itself is evidence of relevant bad faith registration and use.”). Accordingly, the Panel finds further bad faith under Policy ¶ 4(a)(iii).
Complainant also asserts that Respondent had actual knowledge of Complainant’s rights in the POPGRIP mark, due to the fame of the mark and Respondent’s use of the <poppinggrip.com> domain name to offer purportedly authentic Complainant products. The Panel agrees and finds that Respondent had actual knowledge of Complainant’s rights in the mark and thus registered the disputed domain name in bad faith under Policy ¶ 4(a)(iii). See 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.”).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <poppinggrip.com> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: February 21, 2020
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