Sprint Communications Company L.P. v. Anton Verbeshchuk
Claim Number: FA2108001958163
Complainant is Sprint Communications Company L.P. (“Complainant”), represented by Molly Buck Richard of Richard Law Group, Inc., Texas, USA. Respondent is Anton Verbeshchuk (“Respondent”), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <official-sprint.store>, 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.
Ho Hyun Nahm, Esq. as Panelist.
Complainant submitted a Complaint to the Forum electronically on August 4, 2021; the Forum received payment on August 4, 2021.
On August 5, 2021, NameCheap, Inc. confirmed by e-mail to the Forum that the <official-sprint.store> 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 August 5, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 25, 2021 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@official-sprint.store. Also on August 5, 2021, 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 August 30, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Ho Hyun Nahm, Esq. 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
i) Complainant, Sprint Communications Company L.P., operates a large communications company with advertising expenses exceeding $1 billion annually. Complainant has rights in the SPRINT mark through its registration with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. 1,104,943, registered Oct. 24, 1978). The disputed domain name is confusingly similar to Complainant’s SPRINT mark, only differing by the addition of the term “official,” a hyphen, and the “.store” generic top-level domain (“gTLD”).
ii) Respondent lacks rights and legitimate interests in the disputed domain name as it is not commonly known by the disputed domain name and is neither an authorized user or licensee of the SPRINT mark. Additionally, Respondent does not use the disputed domain name for any bona fide offer of goods or services, nor for any legitimate noncommercial or fair use. Instead, Respondent uses the disputed domain name to promote its own “get rich quick” scheme and to phish for Internet users’ personal information.
iii) Respondent registered and uses the disputed domain name in bad faith. Respondent uses the disputed domain name to promote a “get rich quick” scheme, demonstrating bad faith attraction to commercial gain. Respondent also provided false contact information when registering the disputed domain name. Additionally, Complainant contends that Respondent registered the disputed domain name with actual knowledge of Complainant’s rights in the SPRINT mark.
B. Respondent
Respondent did not submit a response to this proceeding.
1. The disputed domain name was registered on July 29, 2021.
2. Complainant has rights in the SPRINT mark through its registration with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. 1,104,943, registered October 24, 1978).
3. Respondent uses the disputed domain to host a website where it attempts to promote its own content and seemingly collects personal/financial information from visitors.
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”).
Complainant asserts rights in the SPRINT mark through its registration with the USPTO. Registration of a mark with a trademark agency, such as the USPTO, is generally sufficient to demonstrate rights in a mark under Policy ¶ 4(a)(i). See Nintendo of America Inc. v. lin amy, FA 1818485 (Forum Dec. 24, 2018) ("Complainant’s ownership a USPTO trademark registration for the NINTENDO mark evidences Complainant’s rights in such mark for the purposes of Policy ¶ 4(a)(i).”). Complainant provides evidence of its registration with the USPTO (e.g., Reg. 1,104,943, registered Oct. 24, 1978). Therefore, the Panel finds Complainant has rights in the SPRINT mark under Policy ¶ 4(a)(i).
Complainant argues that the disputed domain name is confusingly similar to Complainant’s SPRINT mark, only differing by the addition of a hyphen, the generic term “official,” and the “.store” gTLD. Such changes may not sufficiently distinguish a domain name from a mark under Policy ¶ 4(a)(i). See Skechers U.S.A., Inc. and Skechers U.S.A., Inc. II v. Svensson Viljae, FA 1784650 (Forum June 1, 2018) (finding confusing similarity where “[t]he disputed domain name <skechers-outlet.com> adds a hyphen and the generic term ‘outlet’ to Complainant's registered SKECHERS mark, and appends the ‘.com’ top-level domain.”). Thus, the Panel finds the disputed domain name is confusingly similar to Complainant’s SPRINT mark under Policy ¶ 4(a)(i).
Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), then 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 lacks rights and legitimate interests in the disputed domain name as it is not commonly known by the disputed domain name and is neither an authorized user or licensee of the SPRINT mark. When no response is submitted, relevant WHOIS information may demonstrate that a Respondent is not commonly known by a disputed domain name under Policy ¶ 4(c)(ii). See Chevron Intellectual Property LLC v. Fred Wallace, FA1506001626022 (Forum July 27, 2015) (finding that the respondent was not commonly known by the <chevron-europe.com> domain name under Policy ¶ 4(c)(ii), as the WHOIS information named “Fred Wallace” as registrant of the disputed domain name). Here, the WHOIS information of record identifies “Anton Verbeshchuk” as the registrant of the disputed domain name. The Panel finds Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).
Complainant then argues that Respondent fails to use the disputed domain name for any bona fide offer of goods or services, nor for any legitimate noncommercial or fair use, instead using the disputed domain to promote Respondent’s own “get rich quick” scheme and phish for sensitive information from visitors. Such use does not qualify as either a bona fide offer of goods or services, nor can it be a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii). See Spike's Holding, LLC v. Nexperian Holding Limited, FA 1736008 (Forum July 21, 2017) (“Using a confusingly similar domain to display unrelated content can evince a lack of a bona fide offering of goods or services or legitimate noncommercial or fair use… The Panel therefore finds that Respondent’s unrelated use of the <finishnline.com> domain name evinces a lack of rights and legitimate interests under Policy ¶ 4(c)(i) & (iii).”); see also Enterprise Holdings, Inc. v. I S / Internet Consulting Services Inc., FA 1785242 (Forum June 5, 2018) (“On its face, the use of a domain name that is confusingly similar to the mark of another in order to facilitate a phishing scheme cannot be described as either 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 provides screenshots of the disputed domain name demonstrating Respondent’s attempts to phish and promote its own content. Therefore, the Panel finds Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶¶ 4(c)(i) and (iii).
The Panel finds that Complainant has made out a prima facie case that arises from the considerations above. All of these matters go to make out the prima facie case against Respondent. As Respondent has not filed a Response or attempted by any other means to rebut the prima facie case against it, the Panel finds that Respondent has no rights or legitimate interests in the disputed domain name.
Complainant argues that Respondent registered and uses the disputed domain name in bad faith because Respondent uses the domain name to promote its own “get rich quick” scheme. Such use of an infringing domain name may demonstrate bad faith attraction to commercial gain under Policy ¶ 4(b)(iv). See H-D Michigan, Inc. v. Petersons Auto., FA 135608 (Forum Jan. 8, 2003) (finding that the disputed domain name was registered and used in bad faith pursuant to Policy ¶ 4(b)(iv) through the respondent’s registration and use of the infringing domain name to intentionally attempt to attract Internet users to its fraudulent website by using the complainant’s famous marks and likeness). The Panel notes that screenshots of the disputed domain name demonstrate that Respondent uses the domain to host a website where it attempts to promote its own content and seemingly collects personal/financial information from visitors. Therefore, the Panel finds bad faith under Policy ¶ 4(b)(iv).
Additionally, Complainant argues that Respondent registered the disputed domain name with actual knowledge of Complainant’s rights in the SPRINT mark. Per Policy ¶ 4(a)(iii), registration of a domain name with actual knowledge of another’s trademark rights is sufficient to establish bad faith, and can be shown by the fame of a mark and the use Respondent makes of the disputed domain name. See AutoZone Parts, Inc. v. Ken Belden, FA 1815011 (Forum Dec. 24, 2018) (“Complainant contends that Respondent’s knowledge can be presumed in light of the substantial fame and notoriety of the AUTOZONE mark, as well as the fact that Complainant is the largest retailer in the field. The Panel here finds that Respondent did have actual knowledge of Complainant’s mark, demonstrating bad faith registration and use under Policy ¶ 4(a)(iii).”). Complainant operates one of the largest communications companies in the United States, spending more than $1 billion per year in advertising, and Respondent registered the disputed domain name which uses the entire SPRINT mark and uses the domain to promote its own fraudulent services. The Panel infers, due to the notoriety of Complainant’s mark and the manner of use of the disputed domain name that Respondent registered the disputed domain name with actual knowledge, and thus it finds 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 <official-sprint.store> domain name be TRANSFERRED from Respondent to Complainant.
Ho Hyun Nahm, Esq., Panelist
Dated: September 6, 2021
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