Sunbelt Rentals, Inc. v. friday ike
Claim Number: FA2203001990350
Complainant is Sunbelt Rentals, Inc. (“Complainant”), represented by William B. Cannon of Parker Poe Adams & Bernstein LLP, North Carolina, USA. Respondent is friday ike (“Respondent”), Washington, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <sunbeltrentas.com>, registered with Wild West Domains, 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.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to the Forum electronically on March 30, 2022; the Forum received payment on March 30, 2022.
On March 31, 2022, Wild West Domains, LLC confirmed by e-mail to the Forum that the <sunbeltrentas.com> domain name is registered with Wild West Domains, LLC and that Respondent is the current registrant of the name. Wild West Domains, LLC has verified that Respondent is bound by the Wild West Domains, 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 April 1, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 21, 2022 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@sunbeltrentas.com. Also on April 1, 2022, 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 April 27, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Sandra J. Franklin 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
1. Respondent’s <sunbeltrentas.com> domain name is confusingly similar to Complainant’s SUNBELT RENTALS mark.
2. Respondent does not have any rights or legitimate interests in the <sunbeltrentas.com> domain name.
3. Respondent registered and uses the <sunbeltrentas.com> domain name in bad faith.
B. Respondent did not file a Response.
Complainant, Sunbelt Rentals, Inc., is an equipment rental company and holds a registration for the SUNBELT RENTALS mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 2,459,813, registered June 12, 2001).
Respondent registered the <sunbeltrentas.com> domain name on March 16, 2022, and uses it to resolve to an inactive page and to conduct a phishing scheme.
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 Panel finds that Complainant has rights in the SUNBELT RENTALS mark under Policy ¶ 4(a)(i) based on registration with the USPTO. See Brooks Sports, Inc. v. Joyce Cheadle, FA 1819065 (Forum Dec. 28, 2018) (finding that Complainant’s registration of the BROOKS mark with the USPTO sufficiently conferred its rights in the mark under Policy ¶ 4(a)(i).”)
Respondent’s <sunbeltrentas.com> domain name incorporates the SUNBELT RENTALS mark, omits a single letter, and adds a gTLD. These changes do not distinguish a complainant’s mark from a disputed domain name under Policy ¶ 4(a)(i). See Rockwell Automation v. Zhao Ke, FA 1760051 (Forum Jan. 2, 2018) (“The disputed domain name <rockwellautomation.co> corresponds to Complainant's registered ROCKWELL AUTOMATION mark, with the space omitted and the ".co" top-level domain appended thereto. These alterations do not distinguish the domain name from Complainant's mark for purposes of the Policy.”); see also Twitch Interactive, Inc. v. zhang qin, FA 1626511 (Forum Aug. 4, 2015) (finding, “The relevant comparison then resolves to the trademark, TWITCH, with the term, ‘titch,’ which, as can be readily seen, merely removes the letter ‘w’ from the trademark. In spite of that omission the compared integers remain visually and aurally very similar and so Panel finds them to be confusingly similar for the purposes of the Policy.”) Accordingly, the Panel finds that Respondent’s <sunbeltrentas.com> domain name is confusingly similar to Complainant’s SUNBELT RENTALS mark.
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(i).
Once Complainant makes a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), 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 claims that Respondent does not have rights or legitimate interests in the <sunbeltrentas.com> domain name because Respondent is not commonly known by the disputed domain name and is not associated with Complainant or authorized to use Complainant’s SUNBELT RENTALS mark. The WHOIS information lists the registrant of the disputed domain name as “Friday Ike.” Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name, and thus has no rights under Policy ¶ 4(c)(ii). See State Farm Mutual Automobile Insurance Company v. Dale Anderson, FA1504001613011 (Forum May 21, 2015) (concluding that because the WHOIS record lists “Dale Anderson” as the registrant of the disputed domain name, the respondent was not commonly known by the <statefarmforum.com> domain name pursuant to Policy ¶ 4(c)(ii)); see also Google LLC v. Bhawana Chandel / Admission Virus, FA 1799694 (Forum Sept. 4, 2018) (concluding that Respondent was not commonly known by the disputed domain name where “the WHOIS of record identifies the Respondent as “Bhawana Chandel,” and no information in the record shows that Respondent was authorized to use Complainant’s mark in any way.”)
Complainant also argues that Respondent does not use the <sunbeltrentas.com> domain name for a bona fide offering of goods or services or a legitimate noncommercial or fair use. Under Policy ¶¶ 4(c)(i) and (iii), past panels have found no bona fide offering of goods or services or legitimate noncommercial or fair use where the domain name resolves to an inactive page. See Morgan Stanley v. Francis Mccarthy / Baltec Marine Llc, FA 1785347 (Forum June 8, 2018) (“both Domain Names resolve to a web site that shows the words, ‘Not Found, The requested URL / was not found on this server.’ Inactive holding of a domain name does not qualify as a bona fide offering of goods or services within the meaning of Policy ¶ 4(c)(i), or a legitimate non-commercial or fair use within the meaning of Policy ¶ 4(c)(iii).”) Complainant demonstrates that the disputed domain name resolves to a page that displays the error message “this site can’t be reached.” The Panel finds that this is not a bona fide offering of goods or services or a legitimate noncommercial or fair use, and thus Respondent has no rights under Policy ¶ 4(a)(ii).
Complainant also argues that Respondent does not use the <sunbeltrentas.com> domain name for a bona fide offering of goods or services or a legitimate noncommercial or fair use because Respondent uses the domain in furtherance of a phishing scheme. Complainant provides a copy of an email sent by Respondent posing as a “Profit Center Manager” working for Complainant and seeking payment. The Panel finds that this is also not a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶ 4(a)(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)).
Complainant contends that Respondent’s lack of rights and interests in the disputed domain name is also evident from its typosquatting, or intentional misspelling of Complainant’s mark. The Panel agrees and finds that Respondent has failed to use the disputed domain name for a bona fide offering of goods or services or a legitimate noncommercial or fair use under 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).”)
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant argues that Respondent registered and uses the <sunbeltrentas.com> domain name in bad faith to conduct a phishing scheme and attract commercial gain. The Panel agrees and finds bad faith under Policy ¶ 4(b)(iv). See Qatalyst Partners LP v. Devimore, FA 1393436 (Forum July 13, 2011) (finding that using the disputed domain name as an e-mail address to pass itself off as the complainant in a phishing scheme is evidence of bad faith registration and use).
Complainant also argues that Respondent has registered and uses the <sunbeltrentas.com> domain name in bad faith because it resolves to an inactive webpage. The Panel agrees and finds that this is further evidence of bad faith under Policy ¶ 4(a)(iii). See Dermtek Pharmaceuticals Ltd. v. Sang Im / Private Registration, FA1310001522801 (Forum Nov. 19, 2013) (holding that because the respondent’s website contained no content related to the domain name and instead generated the error message “Error 400- Bad Request,” the respondent had registered and used the disputed domain name in bad faith pursuant to Policy ¶ 4(a)(iii)).
Complainant also cites Respondent’s typosquatting as 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 mark, which is evidence of bad faith pursuant to Policy ¶ 4(a)(iii)). The Panel finds additional bad faith under Policy ¶ 4(a)(iii) based on Respondent’s typosquatting.
Complainant contends that Respondent registered the <sunbeltrentas.com> domain name in bad faith with knowledge of Complainant’s rights in the SUNBELT RENTALS mark due to Complainant’s long, continuous use of the mark as well as Respondent’s use of the domain to pass off as Complainant via email. The Panel agrees and finds additional bad faith under Policy ¶ 4(a)(iii). See Spectrum Brands, Inc. v. Guo Li Bo, FA 1760233 (Forum Jan. 5, 2018) (“[T]he fact Respondent registered a domain name that looked identical to the SPECTRUM BRANDS mark and used that as an email address to pass itself off as Complainant shows that Respondent knew of Complainant and its trademark rights at the time of registration.”)
The Panel finds that Complainant has satisfied 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 <sunbeltrentas.com> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: April 28, 2022
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