United Services Automobile Association v. ganesh pal
Claim Number: FA2010001919058
Complainant is United Services Automobile Association ("Complainant"), represented by Megan R. Bradshaw of Pirkey Barber PLLC, Texas, USA. Respondent is ganesh pal ("Respondent"), India.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <usaacarloans.com>, registered with GoDaddy.com, LLC.
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.
David E. Sorkin as Panelist.
Complainant submitted a Complaint to the Forum electronically on October 30, 2020; the Forum received payment on October 30, 2020.
On November 2, 2020, GoDaddy.com, LLC confirmed by email to the Forum that the <usaacarloans.com> 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 November 3, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 23, 2020 by which Respondent could file a Response to the Complaint, via email to all entities and persons listed on Respondent's registration as technical, administrative, and billing contacts, and to postmaster@usaacarloans.com. Also on November 3, 2020, the Written Notice of the Complaint, notifying Respondent of the email 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 November 25, 2020, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed David E. Sorkin 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 is a Fortune 200 financial services company that serves approximately 7,500,000 members. Complainant uses the USAA mark in connection with its goods and services, including car loans. Complainant has used the USAA mark continuously since at least as early as 1927, and claims that it has become famous in the United States as a result of longstanding and extensive use and promotion. Complainant owns various U.S. trademark registrations for USAA, both as a standard character mark and in design form, and also asserts common-law trademark rights.
Respondent registered the disputed domain name <usaacarloans.com> in April 2020. The domain name is being using for a website that displays Complainant's mark and logo in a manner likely to confuse Internet users into believing that it is sponsored by or associated with Complainant. Complainant accuses Respondent of using the disputed domain name to infringe Complainant's trademark rights and trade off Complainant's goodwill. Complainant states that Respondent is not commonly known by the disputed domain name and has not been licensed or otherwise permitted to use Complainant's mark.
Complainant contends on the above grounds that the disputed domain name <usaacarloans.com> is confusingly similar to its USAA mark; that Respondent lacks rights or legitimate interests in the disputed domain name; and that the disputed domain name was registered and is being used in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that the disputed domain name is confusingly similar to a mark in which Complainant has rights; that Respondent lacks rights or legitimate interests in respect of the disputed domain name; and that the disputed domain name was registered and is being used in bad faith.
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 Overview of WIPO Panel Views on Selected UDRP Questions, § 4.3 (3d ed. 2017), available at http://www.wipo.int/amc/en/domains/search/overview3.0/; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (dismissing complaint where complainant failed to "produce clear evidence to support its subjective allegations").
The disputed domain name <usaacarloans.com> incorporates Complainant's registered USAA trademark, adding the generic terms "car" and "loans" and the ".com" top-level domain. These additions do not substantially diminish the similarity between the domain name and Complainant's mark. See, e.g., United Services Automobile Association v. Top Business Names / Domain Administrator, FA 1338416 (Forum Sept. 16, 2010) (finding <usaaautoloan.com> confusingly similar to USAA). The Panel considers the disputed domain name to be confusingly similar to a mark in which Complainant has rights.
Under the Policy, the Complainant must first make a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain name, and then the burden shifts to the Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Productions, Inc. v. Entertainment Commentaries, FA 741828 (Forum Aug. 18, 2006).
The disputed domain name incorporates Complainant's registered mark without authorization. It is being used for a website that displays numerous instances of Complainant's mark and logo in a manner likely to create a false impression of association with Complainant. The Panel infers that the website is intended at least indirectly for Respondent's commercial gain, taking into account the content of the website and the surrounding circumstances, and noting that Respondent has failed to challenge Complainant's allegations of infringement and trading off. Such use does not give rise to rights or legitimate interests under the Policy. See, e.g., Bloomberg L.P. v. Brian Johnston, FA 760084 (Forum Oct. 25, 2006) (finding lack of rights or interests arising from use of domain name incorporating trademark for purportedly informational website).
Complainant has made a prima facie case that Respondent lacks rights and legitimate interests in the domain name, and Respondent has failed to come forward with any evidence of such rights or interests. Accordingly, the Panel finds that Complainant has sustained its burden of proving that Respondent lacks rights or legitimate interests in respect of the disputed domain name.
Finally, Complainant must show that the disputed domain name was registered and is being used in bad faith. Under paragraph 4(b)(iv) of the Policy, bad faith may be shown by evidence that "by using the domain name, [Respondent] intentionally attempted to attract, for commercial gain, Internet users to [Respondent's] web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of [Respondent's] web site or location or of a product or service on [Respondent's] web site or location."
Respondent registered a domain name incorporating Complainant's famous mark and obviously intended to create a false impression of association with Complainant, and is using it for a website that repeatedly displays Complainant's mark and logo. As noted above, the Panel infers that the website is intended at least indirectly for Respondent's commercial gain. The Panel further infers that Respondent registered the domain name for the purpose of displaying this website or for other improper purposes similarly aimed at exploiting confusion with Complainant's mark. The Panel therefore finds that the disputed domain name was registered and is being used in bad faith.
Having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <usaacarloans.com> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: November 30, 2020
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page