The RCS Network v. Swati Agarwal / Appycodes technologies LLP
Claim Number: FA2203001987772
Complainant is The RCS Network ("Complainant"), represented by Jonathan Loeb of Rich May, P.C., Massachusetts, USA. Respondent is Swati Agarwal / Appycodes technologies LLP ("Respondent"), India.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <masssaveaudit.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 March 10, 2022; the Forum received payment on March 10, 2022.
On March 11, 2022, GoDaddy.com, LLC confirmed by email to the Forum that the <masssaveaudit.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 March 14, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 4, 2022 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@masssaveaudit.com. Also on March 14, 2022, 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 April 11, 2022, 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 an unincorporated collaborative association of Massachusetts utility companies and energy efficiency services providers. Complainant has used the MASS SAVE trademark since 2004 in connection with its services, including home energy audits. Complainant offers these services through a website at <masssave.com> and through other channels. Complainant owns a United States trademark registration for MASS SAVE in standard character form.
The disputed domain name <masssaveaudit.com> was registered in January 2022. The name is registered in the name of a privacy registration service on behalf of Respondent. Respondent is using the domain name for a website that repeatedly displays Complainant's MASS SAVE mark and purports to offer services similar or identical to those offered by Complainant, including home energy audits. Complainant states that Respondent is not commonly known by the disputed domain name and has not been licensed or permitted to use Complainant's mark.
Complainant contends on the above grounds that the disputed domain name <masssaveaudit.com> is confusingly similar to its MASS SAVE 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 <masssaveaudit.com> incorporates Complainant's registered MASS SAVE trademark, omitting the space and adding the generic term "audit" and the ".com" top-level domain. These alterations do not substantially diminish the similarity between the domain name and Complainant's mark. See, e.g., RCS Network v. Zhichao Yang, FA 1940448 (Forum May 4, 2021) (finding <mymasssave.com> confusingly similar to MASSSAVE); RCS Network v. Milen Radumilo, FA 1940445 (Forum May 3, 2021) (finding <mass-save.com> confusingly similar to MASS SAVE); Direct Energy Marketing Ltd.; Direct Energy Marketing Inc.; Direct Energy Business, LLC; Direct Energy, LP v. Jessica Robichaud, FA 1801131 (Forum Sept. 19, 2018) (finding <directenergyaudits.com> confusingly similar to DIRECT ENERGY). 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, and it is being used to pass off as Complainant and promote directly competing services. Such use does not give rise to rights or legitimate interests under the Policy. See, e.g., Expedia, Inc. v. Sameh Elsayed, FA 1941132 (Forum May 10, 2021) (finding lack of rights or interests in similar circumstances); Capital One Financial Corp. v. Charles Allen / BTCS, FA 1831008 (Forum Mar. 21, 2019) (same); Direct Energy Marketing Ltd. et al. v. Jessica Robichaud, supra (same).
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)(iii) of the Policy, bad faith may be shown by evidence that Respondent registered the disputed domain name "primarily for the purpose of disrupting the business of a competitor." Under paragraph 4(b)(iv), 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 used a privacy registration service to register a domain name that combines Complainant's registered mark with a generic term for its services, in an obvious attempt to create confusion with Complainant's mark, and is using the domain name for a website passes off as Complainant and promotes directly competing services. Such conduct is indicative of bad faith registration and use under the Policy. See, e.g., Expedia, Inc. v. Sameh Elsayed, supra (finding bad faith registration and use in similar circumstances); Capital One Financial Corp. v. Charles Allen / BTCS, supra (same). The Panel so finds.
Having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <masssaveaudit.com> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: April 11, 2022
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