T-Mobile USA, Inc. dba MetroPCS v. Ryan G Foo / PPA Media Services
Claim Number: FA1507001627542
Complainant is T-Mobile USA, Inc. dba MetroPCS (“Complainant”), represented by James F. Struthers of Richard Law Group, Inc., Texas, USA. Respondent is Ryan G Foo / PPA Media Services (“Respondent”), Chile.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <metropcsjobs.com>, registered with Internet.bs Corp.; and <emetropcs.com>, registered with TLD Registrar Solutions Ltd.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Kenneth L. Port as Panelist.
Complainant submitted a Complaint to the Forum electronically on July 7, 2015; the Forum received payment on July 7, 2015.
On July 14, 2015, Internet.bs Corp. confirmed by e-mail to the Forum that the <metropcsjobs.com> domain name is registered with Internet.bs Corp. and that Respondent is the current registrant of the name. Internet.bs Corp. has verified that Respondent is bound by the Internet.bs Corp. 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 July 14, 2015, TLD Registrar Solutions Ltd. confirmed by e-mail to the Forum that the <emetropcs.com> domain name is registered with TLD Registrar Solutions Ltd. and that Respondent is the current registrant of the name. TLD Registrar Solutions Ltd. has verified that Respondent is bound by the TLD Registrar Solutions Ltd. 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 July 14, 2015, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 3, 2015 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@metropcsjobs.com, postmaster@emetropcs.com. Also on July 14, 2015, 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 5th, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Kenneth L. Port 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 names be transferred from Respondent to Complainant.
A. Complainant
Complainant alleges that it uses the METROPCS mark in conjunction with its services as one of the largest providers of mobile communications in the United States. Complainant has rights in the METROPCS mark through its registration with the United States Patent and Trademark Office (“USPTO”) (e.g. Reg. No. 2,784,778, registered on November 18, 2003). Respondent’s <metropcsjobs.com> and <emetropcs.com> domain names are confusingly similar to the METROPCS mark because they each contain the entirety of the mark, and are differentiated by only the additions of either the letter “e” or the word “jobs” and the generic top-level domain (“gTLD”) “.com.”
Complainant asserts that Respondent has no rights or legitimate interests in or to the disputed domain names. Respondent is not commonly known by the <metropcsjobs.com> and <emetropcs.com> domain names, as the available WHOIS information lists “Ryan G Foo” as Registrant. Respondent fails to use the <metropcsjobs.com> and <emetropcs.com> domain names to provide a bona fide offering of goods or services or a legitimate noncommercial or fair use because the resolving websites each attempt to download malware onto the computers of Internet users, or else redirect to a direct competitor of Complainant. See Compl., at Attached Exs. D-H (evidence of Respondent’s use and redirection of <metropcsjobs.com> and <emetropcs.com> domain names). In addition, Respondent lacks rights or legitimate interests in the <metropcsjobs.com> and <emetropcs.com> domain names because each is offered for sale.
Complainant also asserts that Respondent registered and uses the <metropcsjobs.com> and <emetropcs.com> domain names in bad faith because Respondent offers each domain name for sale and because Respondent has demonstrated a pattern of bad faith registration and use through prior UDRP decisions decided against it. Respondent’s use of the <metropcsjobs.com> and <emetropcs.com> domain names includes the disruptive use of redirecting Internet users to a competitor of Complainant, as well as attempting to download malware onto the computers of visitors to the websites, both of which are presumably done for profit. Additionally, Respondent registered the domain names with actual knowledge of Complainant’s rights in the METROPCS mark.
B. Respondent
Respondent failed to submit a Response in this proceeding. The <metropcsjobs.com> domain name was created on January 1, 2006 and the <emetropcs.com> domain name was created on April 5, 2014.
FINDINGS
As the Respondent has failed to file a Response in this matter, the Panel shall makes its determination based on the reasonable and undisputed assertions of the Complainant. As such, the Panel finds that the disputed domain names are confusingly similar to Complainants registered trademark, that the Respondent has no rights or legitimate interests in or to the disputed domain names, and that the Respondent has engaged in bad faith use and registration of the disputed domain names.
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(e), 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 and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
The disputed domain names are confusingly similar to the Complainant’s registered trademark. Complainant has rights in the METROPCS mark through its registration with the USPTO (e.g. Reg. No. 2,784,778, registered on November 18, 2003). Complainant has provided documentation of this registration in Exhibit C. Registration with the USPTO suffices to demonstrate rights in a mark under Policy ¶ 4(a)(i). Past panels have also found that registration in a respondent’s country of operation is not required, so long as rights can be established somewhere. See Koninklijke KPN N.V. v. Telepathy Inc., D2001-0217 (WIPO May 7, 2001) (finding that the Policy does not require that the mark be registered in the country in which the respondent operates and it is sufficient that the complainant can demonstrate a mark in some jurisdiction). Accordingly, the Panel finds that Complainant has rights in the METROPCS mark under Policy ¶ 4(a)(i).
Complainant alleges that Respondent’s <metropcsjobs.com> and <emetropcs.com> domain names are confusingly similar to Complainant’s METROPCS mark because they each contain the entirety of the mark combined with the gTLD “.com.” gTLDs are irrelevant to Policy ¶ 4(a)(i) analysis. Complainant argues that the <metropcsjobs.com> domain name is differentiated by only the addition of the generic word “jobs.” Complainant also argues that the <emetropcs.com> domain name is different only in that it contains the letter “e.” None of these changes are sufficient to adequately distinguish the disputed domain names from the Complainant’s registered trademark.
Therefore, the Panel finds that Respondent’s <metropcsjobs.com> and <emetropcs.com> domain names are confusingly similar to Complainant’s METROPCS mark pursuant to Policy ¶ 4(a)(i).
The Respondent has no rights or legitimate interests in or to the disputed domain name. Complainant alleges that Respondent is not commonly known by the <metropcsjobs.com> and <emetropcs.com> domain names. The WHOIS information lists “Ryan G Foo” as Registrant. Respondent has failed to provide further evidence to indicate being commonly known by the domain names. Complainant asserts that Respondent is neither licensed to use Complainant’s METEROPCS mark, nor otherwise associated with Complainant. As such, respondent is not commonly known by a domain name under Policy ¶ 4(c)(ii).
Accordingly, the Panel finds that Respondent is not commonly known by the <metropcsjobs.com> and <emetropcs.com> domain names under Policy ¶ 4(c)(ii).
Complainant alleges that Respondent fails to use the <metropcsjobs.com> and <emetropcs.com> domain names to provide a bona fide offering of goods or services or a legitimate noncommercial or fair use because Respondent uses the resolving websites to redirect Internet users to a competitor of Complainant, or else to attempt to download malware onto the computers of visitors to the websites. Complainant has provided evidence of such redirection in Exhibits D and E, along with documentation of Complainant’s competitive nature with Sprint in Exhibit F. Complainant has also provided evidence of the resolving websites attempting to deliver malware in Exhibits G and H. Either use, malware or competitive redirection, suffices to show a lack of bona fide offering of goods or services or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(i) and Policy ¶ 4(c)(iii). As the Respondent is engaged in competitive use of the disputed domain names and attempts to download malware onto unsuspecting users’ computers, the Panel finds that Respondent fails to provide a bona fide offering of goods or services or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(i) and Policy ¶ 4(c)(iii).
Additionally, Complainant alleges that Respondent lacks rights or legitimate interests in the <metropcsjobs.com> and <emetropcs.com> domain names because Respondent offers them for sale. Complainant has provided evidence of Respondent’s offer for sale in Exhibit I, showing <metropcsjobs.com> offered for $5,650 and offers being accepted for <emetropcs.com>. A willingness to dispose of a domain name is indicative of a lack of rights or legitimate interests in that domain name under Policy ¶ 4(a)(ii). Therefore, the Panel finds that Respondent lacks rights or legitimate interests in the <metropcsjobs.com> and <emetropcs.com> domain names under Policy ¶ 4(a)(ii).
Complainant alleges that Respondent registered and uses the <metropcsjobs.com> and <emetropcs.com> domain names in bad faith because Respondent offers each domain name for sale. Complainant has provided evidence of this intent to sell in Exhibit I, showing <metropcsjobs.com> offered for $5,650 and offers being accepted for <emetropcs.com>. Past panels have found similar offers of sale sufficient to show bad faith under Policy ¶ 4(b)(i). See Bank of Am. Corp. v. Nw. Free Cmty. Access, FA 180704 (Nat. Arb. Forum Sept. 30, 2003) (“Respondent's general offer of the disputed domain name registration for sale establishes that the domain name was registered in bad faith under Policy ¶ 4(b)(i).”); see also Randstad Gen. Partner, LLC v. Domains For Sale For You, D2000-0051 (WIPO Mar. 24, 2000) (finding bad faith where the respondent offered the domain name for sale on its website <internetdomains4u.com> for $24,000). Accordingly, the Panel finds that Respondent registered and is using the disputed domain names in bad faith under Policy ¶ 4(b)(i).
Complainant alleges that Respondent has demonstrated a pattern of bad faith registrations through prior UDRP decisions decided against it. Complainant refers to several prior UDRP decisions to establish this pattern including Homer TLC, Inc. v. PPA Media Services / Ryan G Foo, FA1111001416637 (Nat. Arb. Forum Jan 13, 2012); American Sports Lic., Inc. v. PPA Media Services / Ryan G Foo, FA1201001426016 (Nat. Arb. Forum March 2, 2012); and American Sports Lic., Inc. v. PPA Media Services / Ryan G Foo, FA1201001426024 (Nat. Arb. Forum March 6, 2012). Complainant refers to additional prior decisions on page nine of the Complaint. Past panels have found prior decisions decided against a respondent sufficient to show a pattern of bad faith registration and use under Policy ¶ 4(b)(ii). See Westcoast Contempo Fashions Ltd. v. Manila Indus., Inc., FA 814312 (Nat. Arb. Forum Nov. 29, 2006) (finding bad faith registration and use pursuant to Policy ¶ 4(b)(ii) where the respondent had been subject to numerous UDRP proceedings where panels ordered the transfer of disputed domain names containing the trademarks of the complainants). Therefore, the Panel finds that Respondent has demonstrated a pattern of bad faith registration and use under Policy ¶ 4(b)(ii).
Complainant alleges that Respondent registered and uses the <metropcsjobs.com> and <emetropcs.com> domain names for the purpose of disrupting Complainant’s business operations by redirecting Internet users to its competitor, Sprint. Complainant has provided Exhibits D and E to demonstrate this use. Redirecting users to a competitor constitutes disruption under Policy ¶ 4(b)(iii), thereby showing bad faith use. See Puckett, Individually v. Miller, D2000-0297 (WIPO June 12, 2000) (finding that the respondent has diverted business from the complainant to a competitor’s website in violation of Policy ¶ 4(b)(iii)). As the Respondent here is engaged in disruptive use of the disputed domain names, the Panel finds that Respondent uses the <metropcsjobs.com> and <emetropcs.com> domain names in bad faith under Policy ¶ 4(b)(iii).
Complainant also alleges that Respondent’s use of the <metropcsjobs.com> and <emetropcs.com> domain names is intended to attract Internet users for commercial gain. In addition to the competitive redirecting use described above, Complainant argues that Respondent uses the resolving websites to deliver malware. Complainant has provided documentation of this in Exhibits G and H. Past panels have found either use sufficient to find use pursuant to Policy ¶ 4(b)(iv). See Gardens Alive, Inc. v. D&S Linx, FA 203126 (Nat. Arb. Forum Nov. 20, 2003) (“Respondent registered and used the <my-seasons.com> domain name in bad faith pursuant to Policy ¶¶ 4(b)(iii) and (iv) because Respondent is using a domain name that is confusingly similar to the MYSEASONS mark for commercial benefit by diverting Internet users to the <thumbgreen.com> website, which sells competing goods and services.”); see also Google, Inc. v. Petrovich, FA 1339345 (Nat. Arb. Forum September 23, 2010) (finding that disputed domain names which distribute malware to Internet users’ computers demonstrate Respondent’s bad faith under Policy ¶ 4(b)(iv)).
As the Respondent uses the disputed domain names to disrupt legitimate Internet traffic to the Complainant and attempts to download malware to unsuspecting users’ computers, apparently for profit, the Panel finds that Respondent has registered and uses the <metropcsjobs.com> and <emetropcs.com> domain names in bad faith pursuant to Policy ¶ 4(b)(iv).
Additionally, Complainant alleges that Respondent registered the disputed domain names with actual knowledge of Complainant’s rights in the METROPCS mark. Complainant argues that its METROPCS mark is a famous mark, and that the use of the domain names, redirecting Internet users to a competitor of Complainant, shows that Respondent was aware of that fame at the time of registration. Past panels have found that when respondents have actual knowledge of a complainant’s rights in a mark, the registration of a confusingly similar domain name is done in bad faith under Policy ¶ 4(a)(iii). See Bluegreen Corp. v. eGo, FA 128793 (Nat. Arb. Forum Dec. 16, 2002) (finding bad faith where the method by which the respondent acquired the disputed domain names indicated that the respondent was well aware that the domain names incorporated marks in which the complainant had rights).
As the Respondent had actual knowledge of Complainant’s rights in the METROPCS mark at the time of registration, the Panel finds that Respondent registered the <metropcsjobs.com> and <emetropcs.com> domain names in 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 <metropcsjobs.com> and <emetropcs.com> domain names transferred from the Respondent to the Complainant.
Kenneth L. Port, Panelist
Dated: August 9, 2015
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