eBay Inc. v. Mohd. mohd.Danish / westernenterprises
Claim Number: FA1711001756923
Complainant is eBay Inc. ("Complainant"), represented by Beth Cooperstein of Holland & Hart LLP, Colorado, USA. Respondent is Mohd. mohd.Danish / westernenterprises ("Respondent"), India.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <ebayoffers.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 November 2, 2017; the Forum received payment on November 2, 2017.
On November 3, 2017, GoDaddy.com, LLC confirmed by email to the Forum that the <ebayoffers.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 November 6, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 27, 2017 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@ebayoffers.com. Also on November 6, 2017, 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.
The Forum received email correspondence from Respondent on November 12, 2017, and November 15, 2017.
On November 27, 2017, 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 a formal response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant describes itself as a global leader in the field of online commerce and shopping. Complainant uses the EBAY mark in connection with its online marketplace, the 10th most visited website in the United States and the 36th most visited globally, with 168 million global active buyers and 1 billion active listings. Complainant asserts that its mark has become famous worldwide as a result of extensive use and growth for over 20 years.
Respondent registered the disputed domain name <ebayoffers.com> in March 2015. The domain name is being used for an online retail website displays the EBAY mark in a font and color scheme similar to that used by Complainant, with a site design similar to that of Complainant's site. Complainant states that the retail components of the site are nonfunctional, and asserts that the site is actually being used for a phishing scheme aimed at gathering information from consumers.
B. Respondent
In email correspondence, Respondent stated that he purchased the disputed domain name, that he is not using it, and that it is different from Complainant's name and mark.
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 has been 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.
The disputed domain name <ebayoffers.com> appends the generic term "offers" and the ".com" top-level domain to Complainant's registered EBAY mark. These additions do not substantially diminish the similarity between the domain name and Complainant's mark. See, e.g., ER Marks, Inc. & QVC, Inc. v. Lin Yanxiao, FA 1430698 (Forum Apr. 13, 2012) (finding <qvcoffers.com> confusingly similar to QVC); America Online, Inc. v. Adosi Ltd. a/k/a This Name Is For Sale - Make An Offer To: bdomains@yahoo.com, FA 237570 (Forum Mar. 29, 2004) (finding <aoloffers.com> confusingly similar to AOL); eBay Inc. v. SGR Enterprises & Joyce Ayers, D2001-0259 (WIPO Apr. 11, 2001) (finding <ebaylive.com> and <ebaystores.com> confusingly similar to EBAY). The Panel therefore considers the disputed domain name to be confusingly similar to a mark in which Complainant has rights.
Under the Policy, Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name, and then the burden shifts to Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm't Commentaries, FA 741828 (Forum Aug. 18, 2006).
The disputed domain name incorporates Complainant's famous registered mark without authorization, and is being used for what appears to be a fraudulent website that imitates Complainant’s own site. See, e.g., UBS AG v. Mr.uncle Mr.uncle, FA 1754571 (Forum Nov. 17, 2017) (finding lack of rights or legitimate interests under similar circumstances).
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's registration and use of a domain name obviously intended to create confusion with Complainant is indicative of bad faith under the Policy. See, e.g., UBS AG v. Mr.uncle Mr.uncle, supra (finding bad faith registration and use under similar circumstances). Respondent clearly was aware of Complainant and its mark, considering the fame of the mark and Respondent's use of a similar font, color scheme, and website design. See id. The Panel finds that the disputed domain name was registered and is being used in bad faith.
Having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <ebayoffers.com> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: December 1, 2017
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