Maplebear Inc. DBA Instacart v. Host Master / Transure Enterprise Ltd
Claim Number: FA2005001895548
Complainant is Maplebear Inc. DBA Instacart (“Complainant”), represented by Candice E. Kim of Greenberg Traurig LLP, California, USA. Respondent is Host Master / Transure Enterprise Ltd (“Respondent”), Delaware, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <instacrat.com>, registered with Above.com Pty Ltd..
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.
Petter Rindforth as Panelist.
Complainant submitted a Complaint to the Forum electronically on May 8, 2020; the Forum received payment on May 8, 2020.
On May 11, 2020, Above.com Pty Ltd. confirmed by e-mail to the Forum that the <instacrat.com> domain name is registered with Above.com Pty Ltd. and that Respondent is the current registrant of the name. Above.com Pty Ltd. has verified that Respondent is bound by the Above.com Pty Ltd. 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 19, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 8, 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@instacrat.com. Also on May 19, 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 June 11, 2020, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Petter Rindforth 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
The Complainant operates an Internet-based delivery and pick-up service. Complainant has rights in the INSTACART trademark based upon registration with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 4,903,628, registered Feb. 23, 2016). Respondent’s <instacrat.com> domain name is confusingly similar to Complainant’s trademark because it simply transposes the “r” and “a” in the INSTACART trademark.
Respondent does not have rights or legitimate interests in the <instacrat.com> domain name. Respondent is not licensed or authorized to use Complainant’s INSTACART trademark and is not commonly known by the disputed domain name. Additionally, Respondent doesn’t use the disputed domain for any bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent uses the domain name to harm Complainant by hosting pay-per-click links and redirecting Internet traffic. Respondent also uses or intends to use the disputed domain name to pass off as Complainant through email. Finally, Respondent’s domain name registration constitutes typosquatting.
Respondent registered and uses the <instacrat.com> domain name in bad faith. Respondent has engaged in a pattern of bad faith domain registrations. Additionally, Respondent’s use of competing hyperlinks disrupts Complainant’s business and attracts Internet users to its website for commercial gain. Finally, Respondent’s domain name registration constitutes typosquatting.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Complainant is the owner of the following U.S. trademark registration:
No. 4,903,628 INSTACART (word), registered February 23, 2016 for goods and services in classes 9, 35, 39, 42 and 45.
The disputed domain name was registered on March 29, 2018
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 Complainant asserts rights in the INSTACART trademark based upon registration with the USPTO. Registration of a trademark with the USPTO is generally sufficient to establish rights in the mark per Policy ¶ 4(a)(i). See DIRECTV, LLC v. The Pearline Group, FA 1818749 (Forum Dec. 30, 2018) (“Complainant’s ownership of a USPTO registration for DIRECTV demonstrate its rights in such mark for the purposes of Policy ¶ 4(a)(i).”). Complainant provides evidence of registration of the said trademark (e.g., Reg. No. 4,903,628, registered Feb. 23, 2016). Therefore, the Panel find that Complainant has rights in the INSTACART trademark under Policy ¶ 4(a)(i).
Complainant argues that Respondent’s <instacrat.com> domain name is confusingly similar to Complainant’s trademark because it simply transposes the “r” and “a” in the INSTACART trademark. The Panel also note that Respondent’s domain name adds the “.com” generic top-level domain to the trademark. Changes such as adding, removing, or transposing letters and adding a gTLD are generally insufficient to dispel confusing similarity between a disputed domain name and a mark. See RetailMeNot, Inc. v. Domain Admin / Private Registrations Aktien Gesellschaft, FA 1625879 (Forum Aug. 6, 2015) (finding confusing similarity while Respondent merely transposed the letters “a” and “t” in the RETAILMENOT mark in crafting the <reatilmenot.com> domain name.). Thus, the Panel agree with Complainant and find that the disputed domain name is confusingly similar to the INSTACART trademark under Policy ¶ 4(a)(i).
Once the Complainant makes a prima facie case in support of its allegations in respect of the second element of the Policy, the burden shifts to the Respondent to show that it does have rights or legitimate interests pursuant to Policy ¶ 4(a)(ii). See AOL LLC v. Gerberg, FA 780200 (Forum Sept. 25, 2006) (“Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.”); see also Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name).
The Complainant argues that Respondent does not have rights or legitimate interests in the <instacrat.com> domain name since Respondent is not licensed or authorized to use Complainant’s INSTACART trademark and is not commonly known by the disputed domain name. When no response is submitted, WHOIS information can be used to show that a respondent is not commonly known by the disputed domain name. See H-D U.S.A., LLC, v. ilyas Aslan / uok / Domain Admin ContactID 5645550 / FBS INC / Whoisprotection biz, FA 1785313 (Forum June 25, 2018) (“The publicly available WHOIS information identifies Respondent as ‘Ilyas Aslan’ and so there is no prima facie evidence that Respondent might be commonly known by either of the [<harleybot.bid> and <harleybot.com>] domain names.”). Additionally, lack of authorization to use a trademark constitutes further showing that a respondent lacks rights in a trademark. See Navistar International Corporation v. N Rahmany, FA1505001620789 (Forum June 8, 2015) (finding that the respondent was not commonly known by the disputed domain name where the complainant had never authorized the respondent to incorporate its NAVISTAR trademark in any domain name registration). The WHOIS information of record in the current case notes “Host Master / Transure Enterprise Ltd.” as the registrant and no information suggests that Complainant has authorized Respondent to use the INSTACART trademark in any way. Thus, the Panel find that Respondent is not commonly known by the domain name under Policy ¶ 4(c)(ii).
Additionally, Complainant argues that Respondent doesn’t use the <instacrat.com> domain for any bona fide offering of goods or services or legitimate noncommercial or fair use and instead uses the domain name to harm Complainant by hosting pay-per-click links and redirecting Internet traffic. Use of a disputed domain name to divert Internet users to commercial webpages is not considered a bona fide offering of goods or services or legitimate noncommercial or fair use under Policy ¶ 4(c)(i) or (iii). See Gen. Mills, Inc. v. Zuccarini, FA 97050 (Forum May 30, 2001) (“[U]nder the “Policy,” Respondent may not utilize close derivations of famous and distinctive trademarks and, thus, profit from Internet users’ misspelling the Internet destinations they desire.”); see also Danbyg Ejendomme A/S v. lb Hansen / guerciotti, FA1504001613867 (Forum June 2, 2015) (finding that the respondent had failed to provide a bona fide offering of goods or services, or a legitimate noncommercial or fair use of the disputed domain name where the disputed domain name resolved to a website that offered both competing hyperlinks and hyperlinks unrelated to the complainant’s business). Complainant argues that users who access the disputed domain name are often prompted to download a web extension before being redirected to a site that hosts pay-per-click links. Complainant provides screenshots of the various pages resolving at the disputed domain. Therefore, the Panel agrees with Complainant and find that Respondent is not using the domain name for 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).
Complainant also contends that Respondent uses or intends to use the <instacrat.com> domain name to pass off as the Complainant through email. Use of a disputed domain name to pass off as a complainant as part of a fraudulent scheme is not considered a bona fide offering of goods or services or legitimate noncommercial or fair use under Policy ¶ 4(c)(i) or (iii). See Microsoft Corporation v. Terrence Green / Whois Agent / Whois Privacy Protection Service, Inc., FA 1661030 (Forum Apr. 4, 2016) (finding the respondent’s use of the disputed domain names to send fraudulent emails purportedly from agents of complainant to be neither a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii)). While Complainant offers no evidence that Respondent is using the disputed domain name to pass off as Complainant, but notes that the domain name has been set up with an email enabling MX record. Based upon this, Complainant contends that Respondent likely intends to use email addresses hosted by the disputed domain name to confuse or defraud Internet users. Considering the facts and arguments provided by the Complainant, the Panel agrees, and find that Respondent does not use the domain name for 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).
Finally, Complainant argues that Respondent’s <instacrat.com> domain name registration constitutes typosquatting. A respondent’s acts of typosquatting may provide evidence that it lacks rights and legitimate interests in a disputed domain name pursuant to Policy ¶ 4(a)(ii). See Chegg Inc. v. yang qijin, FA1503001610050 (Forum Apr. 23, 2015) (“Users might mistakenly reach Respondent’s resolving website by misspelling Complainant’s mark. Taking advantage of Internet users’ typographical errors, known as typosquatting, demonstrates a respondent’s lack of rights or legitimate interests under Policy ¶ 4(a)(ii).”). Complainant argues that Respondent’s transposition of letters in the INSTACART trademark for use in the disputed domain name constitutes typosquatting. The Panel agrees, based also on the fact that with Complainant related goods and services are provided by the web site connected to Respondent’s domain name. The Panel therefore find that Respondent lacks rights and legitimate interests in the domain name under Policy ¶ 4(a)(ii).
Complainant argues that Respondent registered and uses the <instacrat.com> domain name in bad faith since Respondent has engaged in a pattern of bad faith domain registrations. A history of UDRP decisions against a respondent may act as evidence of bad faith under Policy ¶ 4(b)(ii). See DIRECTV, LLC v. michal restl c/o Dynadot, FA 1788826 (Forum July 5, 2018) (“The record contains evidence of Respondents previous eleven UDRP actions, all of which resulted in the transfer of the domain names, thus establishing bad faith per Policy ¶ 4(b)(ii).”). Complainant notes that Respondent has been involved in at least 64 previous panel decisions. Complainant provides a copy of the Forum database search listing these previous decisions. Thus, the Panel find bad faith under Policy ¶ 4(b)(ii).
Complainant also argues that Respondent registered and uses the <instacrat.com> domain name in bad faith based upon Respondent’s use of competing hyperlinks disrupts Complainant’s business and attracts Internet users to its website for commercial gain. Use of a disputed domain to host competing hyperlinks can support a finding of bad faith disruption of business under Policy ¶ 4(b)(iii) and attraction for commercial gain under Policy ¶ 4(b)(iv). See block.one v. Negalize Interactive Things, FA 1798280 (Forum Aug. 21, 2018) (“Offering links to competing products or services can demonstrate bad faith under Policy ¶ 4(b)(iii) where a respondent registers a domain name that is confusingly similar to the mark of another.”); see also Capital One Financial Corp. v. DN Manager / Whois-Privacy.Net Ltd, FA1504001615034 (Forum June 4, 2015) (holding that the respondent’s use of the <capitaloneonebank.com> domain name to display links to the complainant’s competitors, such as Bank of America, Visa, Chase and American Express constituted bad faith pursuant to Policy ¶ 4(b)(iv)). Complainant argues that Respondent’s use of the INSTACART trademark to promote competing services drives consumers away from Complainant’s business and allows Respondent to financially benefit from click-through fees. Complainant specifically makes note of a link to <www.hellofresh.com> as a competing grocery delivery service promoted by Respondent’s webpage. Complainant provides a screenshot of the links at the resolving webpage. Therefore, the Panel agree with Complainant and find bad faith registration and use under Policy ¶¶ 4(b)(iii) and/or (iv).
Finally, Complainant claims that Respondent’s domain name registration constitutes typosquatting. Typosquatting behavior may act as independent evidence of bad faith under Policy ¶ 4(a)(iii). See Under Armour, Inc. v. JEFF RANDALL, FA1410001585022 (Forum Nov. 18, 2014) (finding that the respondent’s <unerarmour.com> domain name constitutes typosquatting of the complainant’s UNDER ARMOUR trademark, which is evidence of bad faith pursuant to Policy ¶ 4(a)(iii)). In this case, Complainant argues that Respondent’s transposition of letters in the INSTACART trademark for use in the <instacrat.com> domain name constitutes typosquatting. The Panel agrees, and find that Respondent registered and uses the disputed domain name in 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 <instacrat.com> domain name be TRANSFERRED from Respondent to Complainant.
Petter Rindforth, Panelist
Dated: June 24, 2020
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page