Maplebear Inc. DBA Instacart v. Andrew Tesser
Claim Number: FA2005001896044
Complainant is Maplebear Inc. DBA Instacart (“Complainant”), represented by Candice E. Kim of Greenberg Traurig LLP, United States. Respondent is Andrew Tesser (“Respondent”), United States.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <instacart.reviews>(‘the Domain Name’), registered with GoDaddy.com, LLC.
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.
Dawn Osborne as Panelist.
Complainant submitted a Complaint to the Forum electronically on May 12, 2020; the Forum received payment on May 12, 2020.
On May 13, 2020, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <instacart.reviews> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, LLC 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 15, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 4, 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@instacart.reviews. Also on May 15, 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 9, 2020 pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Dawn Osborne 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’s contentions can be summarised as follows:
The Complainant is the owner of the trade mark INSTACART registered, inter alia, in the USA for grocery delivery services with first use recorded as 2012.
The Domain Name registered in 2019 is identical to the Complainant’s mark under the Policy merely adding the gTLD “.reviews”.
The Respondent does not have any rights or legitimate interests in the Domain Name, is not commonly known by it and is not authorised by the Complainant.
The site attached to the Domain Name shows a page not connected with the Complainant but using the Complainant’s name and carrot logo which ultimately redirects to the Complainant’s own web site. This is not a bona fide offering of goods or services or a legitimate non commercial or fair use. It is registration and use in bad faith as Respondent intentionally attracts and confuses Internet Users to its own site creating a likelihood of confusion with the Complainant’s mark and disrupting the Complainant’s business.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Complainant is the owner of the trade mark INSTACART registered, inter alia, in the USA for grocery delivery services with first use recorded as 2012.
The Domain Name registered in 2019 is linked to a page using the Complainant’s name and carrot logo which then ultimately redirects to the Complainant’s own web site.
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”).
Identical or Confusingly Similar
The Domain Name consists of the Complainant's INSTACART mark (which is registered in the USA for grocery delivery services and has been used since 2012) and the gTLD “.reviews”.
The gTLD “.reviews” does not serve to distinguish the Domain Name from the Complainant’s mark, which is the distinctive component of the Domain Name. See Red Hat Inc v Haecke FA 726010 (Forum July 24, 2006) (concluding that the redhat.org domain name is identical to the complainant's red hat mark because the mere addition of the gTLD was insufficient to differentiate the disputed domain name from the mark).
Accordingly, the Panel holds that the Domain Name is identical for the purpose of the Policy to a mark in which the Complainant has rights.
As such the Panel holds that Paragraph 4(a)(i) of the Policy has been satisfied.
Rights or Legitimate Interests
The Complainant has not authorised the use of its mark. The Respondent has not answered this Complaint and there is no evidence or reason to suggest the Respondent is, in fact, commonly known by the Domain Name. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum September 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).
Linking to a website that uses a similar colour scheme and the Complainant’s word and carrot logo to pass off a web page as connected with the Complainant is not a bona fide offering of good or services or a legitimate noncommercial or fair use. See Dream Horse Classifieds v. Mosley, FA 381256 (Forum Feb. 8, 2005) (finding the respondent’s attempt to pass itself off as the complainant by implementing a color scheme identical to the complainant’s was evidence that respondent lacks rights and legitimate interests in the disputed domain name pursuant to Policy ¶ 4(a)(ii)). Similarly, use of a disputed domain name to generally redirect Internet traffic is not a bona fide offering of goods or services or legitimate noncommercial or fair use. See Bank of Am. Corp. v. Nw. Free Cmty. Access, FA 180704 (Forum Sept. 30, 2003) (“Respondent's demonstrated intent to divert Internet users seeking Complainant's website to a website of Respondent and for Respondent's benefit is not a bona fide offering of goods or services under Policy ¶ 4(c)(i) and it is not a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).”).
Redirecting Internet users to the Complainant’s website without the Complainant’s authorisation is not bona fide use or legitimate non commercial fair use. See Bank of America Corporation v Show Girls, FA 1804001783413 (Forum May 30, 2018).
As such the Panelist finds that the Respondent does not have rights or a legitimate interest in the Domain Name and that the Complainant has satisfied the second limb of the Policy.
Registration and Use in Bad Faith
The Respondent has not answered this Complaint or explained why it should be allowed to register a domain name containing the Complainant’s mark.
The use of the Complainant’s name in its logo form with its carrot logo with the same colour scheme on the Respondent’s site and ultimate redirection to the Complainant’s own site shows the Respondent had actual knowledge of the Complainant and its business, rights and services and intended to disrupt the Complainant’s business, misleading and confusing Internet users as to the affiliation of the Respondent’s site. See Am. Online, Inc. v. Miles, FA 105890 (Forum May 31, 2002) (“Respondent is using the domain name at issue to resolve to a website at which Complainant’s trademarks and logos are prominently displayed. Respondent has done this with full knowledge of Complainant’s business and trademarks. The Panel finds that this conduct is that which is prohibited by Paragraph 4(b)(iv) of the Policy.”) Further redirecting a domain name containing the Complainant’s trade mark to the Complainant’s own web site is also bad faith registration and use. See McKinsey Holdings Inc. v Mgr. Jakob Bystron, FA 1330650 (Forum July 23, 2010).
As such, the Panel holds that the Complainant has made out its case that the Domain Name was registered and used in bad faith and has satisfied the third limb of the Policy under Para 4(b)(iii) and (iv).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <instacart.reviews> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: June 9, 2020
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