United Parcel Service of America, Inc. v. max alvin
Claim Number: FA2205001994830
Complainant is United Parcel Service of America, Inc. (“Complainant”), represented by Sabina A. Vayner of Greenberg Traurig, LLP, Georgia, USA. Respondent is max alvin (“Respondent”), Nigeria.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <upsgloballogistic.com>, 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.
Paul M. DeCicco, as Panelist.
Complainant submitted a Complaint to the Forum electronically on May 3, 2022; the Forum received payment on May 3, 2022.
On May 3, 2022, NameCheap, Inc. confirmed by e-mail to the Forum that the <upsgloballogistic.com> 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 May 9, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 31, 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@upsgloballogistic.com. Also on May 9, 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 June 6, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Paul M. DeCicco 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 contends as follows:
Complainant, United Parcel Service of America, Inc., provides logistics, shipping, and delivery services.
Complainant has rights in the UPS mark based upon registration with the United States Patent and Trademark Office (“USPTO”).
The <upsgloballogistic.com> domain name is confusingly similar to Complainant’s mark because Respondent has incorporated the entire mark and added the descriptive terms “global” and “logistic” and the “.com” generic top level domain (“gTLD”).
Respondent does not have rights or legitimate interests in the <upsgloballogistic.com> domain because Respondent is not commonly known by the at-issue domain name and is not authorized to use Complainant’s UPS mark. Additionally, Respondent fails to use the domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use because Respondent uses the at-issue domain to pass itself off as affiliated with Complainant in furtherance of phishing.
Respondent has registered and uses the <upsgloballogistic.com> domain name in bad faith because Respondent registered and uses the at-issue domain name to pass itself off as affiliated with Complainant in order to perpetuate a phishing scheme. In addition, Respondent has a history of bad faith registrations and provided false WHOIS information when it registered the domain. Lastly, Respondent had actual knowledge of Complainant’s rights in the UPS mark prior to registering the domain.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has rights in the UPS mark.
Complainant’s rights in UPS existed prior to Respondent’s registration of the at-issue domain name.
Respondent is not authorized to use Complainant’s trademarks.
Respondent, in furtherance of fraud, uses the at-issue domain name to address a website that that pretends to be affiliated with Complainant.
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 at-issue domain name is confusingly similar to a trademark in which Complainant has rights.
Complainant’s USPTO trademark registration for UPS is sufficient to demonstrate Complainant’s rights in a mark under Policy ¶ 4(a)(i). See DIRECTV, LLC v. The Pearline Group, FA 1818749 (Forum Dec. 30, 2018) (“Complainant’s ownership of a USPTO registration for DIRECTV demonstrate its rights in such mark for the purposes of Policy ¶ 4(a)(i).”).
The at-issue domain name consists of Complainant’s UPS trademark followed by the suggestive terms “global” and “logistic,” with all followed by the “.com” top level domain name. The differences between <upsgloballogistic.com> and Complainant’s UPS trademark are insufficient to distinguish the domain name from Complainant’s trademark for the purposes of the Policy. Therefore, the Panel finds pursuant to Policy ¶ 4(a)(i) that Respondent’s <upsgloballogistic.com> domain name is confusingly similar to Complainant’s UPS trademark. See The Toronto-Dominion Bank v. George Whitehead, FA 1784412 (Forum June 11, 2018) (“[S]light differences between domain names and registered marks, such as the addition of words that describe the goods or services in connection with the mark and gTLDs, do not distinguish the domain name from the mark incorporated therein per Policy ¶ 4(a)(i).”); see also, Blue Cross and Blue Shield Association v. Shi Lei aka Shilei, FA 1784643 (Forum June 18, 2018) (“A TLD (whether a gTLD, sTLD or ccTLD) is disregarded under a Policy ¶4(a)(i) analysis because domain name syntax requires TLDs.”).
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. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006). Since Respondent failed to respond, Complainant’s prima facie showing acts conclusively.
Respondent lacks both rights and legitimate interests in respect of the <upsgloballogistic.com> domain name. Respondent is not authorized to use Complainant’s trademark in any capacity and, as discussed below, there are no Policy ¶ 4(c) circumstances from which the Panel might find that Respondent has rights or interests in respect of the at‑issue domain name.
The WHOIS information for the at-issue domain name identifies the registrant of <upsgloballogistic.com> as “max alvin” and the record before the Panel contains no evidence that otherwise tends to show that Respondent is commonly known by the <upsgloballogistic.com> domain name. Notably, UPS is a famous trademark that is well-known in the United States and throughout the world. United Parcel Serv. of Am., Inc. v. upsgroundmap.com, Case No. D2008-1925 (WIPO Feb. 11, 2009) (“Complainant’s distinctive trademark UPS is widely known.”). The Panel therefore concludes that Respondent is not commonly known by the at-issue domain name under Policy ¶ 4(c)(ii). See Bittrex, Inc. v. Operi Manaha, FA 1815225 (Forum Dec. 10, 2018) (concluding that the respondent was not commonly known by the <appbittrex.com> domain name where the WHOIS information listed Respondent as “Operi Manaha,” and nothing else in the record suggested Respondent was authorized to use the BITTREX mark.); see also, Chevron Intellectual Property LLC v. CHLEO TEMPLE, FA 1731844 (Forum June 16, 2017) (acknowledging the likelihood of a respondent’s lack of legitimate interests in an at-issue domain name when the name incorporates a famous mark belonging to another entity).
Additionally, Respondent uses the confusingly similar at-issue domain name to address a website that pretends to be sponsored by or affiliated with Complainant. Respondent’s website prominently displays Complainant’s UPS trademark along with advertising for services identical to those offered by UPS. Furthermore, the bogus website purports to allow consumers to track UPS packages. It is thus apparent that Respondent is using or intending to use the domain name and its related website for fraudulent activities. Respondent’s use of the at-issue domain name to pass itself off as Complainant in furtherance of phishing is indicative of neither a bona fide offering of goods or services per Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use per Policy ¶ 4(c)(iii). See Ripple Labs Inc. v. Jessie McKoy / Ripple Reserve Fund, FA 1790949 (Forum July 9, 2018) (finding the respondent did not use the domain name to make a bona fide offering of goods or services per Policy ¶ 4(c)(i) or for a legitimate noncommercial or fair use per Policy ¶ 4(c)(iii) where the website resolving from the disputed domain name featured the complainant’s mark and various photographs related to the complainant’s business); see also Blackstone TM L.L.C. v. Mita Irelant Ltd., FA 1314998 (Forum Apr. 30, 2010) (“The Panel finds that Respondent’s attempt to “phish” for users’ personal information is neither a bona fide offering of goods and services pursuant to Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).”).
Given the forgoing, Complainant satisfies its initial burden and demonstrates Respondent’s lack of rights and lack of interests in respect of the at-issue domain name pursuant to Policy ¶ 4(a)(ii).
The at-issue domain name was registered and is being used in bad faith. As discussed below without limitation, there is substantial evidence from which the Panel may conclude that Respondent acted in bad faith under Policy ¶ 4(a)(iii).
First and as discussed above, Respondent uses the at-issue domain name to pass itself off as Complainant in support of phishing. Respondent’s use of <upsgloballogistic.com> in this manner is evidence of bad faith per Policy ¶¶ 4(b)(iii) and (iv). See Amazon Technologies, Inc. v. jaskima smith, FA 1750160 (Forum Oct. 26, 2017) (finding the respondent registered and used the disputed domain name in bad faith to pass off as the complainant in an attempt to gain personal information from users who mistakenly access the website); see also, Morgan Stanley v. Bruce Pu, FA 1764120 (Forum Feb. 2, 2018) (“[T]he screenshot of the resolving webpage allows users to input their name and email address, which Complainant claims Respondent uses to fraudulently phish for information. Thus, the Panel agrees that Respondent phishes for information and finds that Respondent does so in bad faith under Policy ¶ 4(a)(iii).”); see also, LoanDepot.com, LLC v. Kaolee (Kay) Vang-Thao, FA1762308 (Forum Jan. 9, 2018) (Finding that Respondent’s use of the disputed domain name to offer competing loan services disrupts Complainant’s business under Policy ¶ 4(b)(iii)).
Next, Respondent has suffered one or more adverse UDRP decisions. Respondent’s history of cybersquatting indicates a pattern of domain name abuse and suggests Respondent’s bad faith in the instant case pursuant to Policy ¶ 4(b)(ii). See Webster Financial Corporation and Webster Bank, National Association v. Above.com Domain Privacy, FA1209001464477 (Forum Nov. 30, 2012) (finding where the record reflected that the respondent had been a respondent in other UDRP proceedings in which it was ordered to transfer disputed domain names to various complainants established a pattern of bad faith registration and use of domain names and stood as evidence of bad faith in the registration and use of domain names under Policy ¶ 4(b)(ii)).
Moreover, Respondent had actual knowledge of Complainant’s rights in the UPS mark when it registered <upsgloballogistic.com> as a domain name. Respondent’s actual knowledge is evident given the notoriety of Complainant’s UPS trademark and from Respondent’s use of <upsgloballogistic.com> to pass itself off as Complainant as discussed elsewhere herein. Respondent’s registration of <upsgloballogistic.com> with knowledge of Complainant’s trademark rights in UPS further indicates Respondent’s bad faith pursuant to Policy ¶ 4(a)(iii). See Minicards Vennootschap Onder FIrma Amsterdam v. Moscow Studios, FA 1031703 (Forum Sept. 5, 2007) (holding that respondent registered a domain name in bad faith under Policy ¶ 4(a)(iii) after concluding that respondent had actual knowledge of Complainant's mark when registering the at-issue domain name); see also, Univision Comm'cns Inc. v. Norte, FA 1000079 (Forum Aug. 16, 2007) (rejecting the respondent's contention that it did not register the disputed domain name in bad faith since the panel found that the respondent had knowledge of the complainant's rights in the UNIVISION mark when registering the disputed domain name).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <upsgloballogistic.com> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: June 7, 2022
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