Wabash National, L.P. v. stan chris
Claim Number: FA1802001773748
Complainant is Wabash National, L.P. (“Complainant”), represented by David A.W. Wong of Barnes & Thornburg LLP, Indiana, USA. Respondent is stan chris (“Respondent”), North Carolina, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <wabashnati0nal.com>, registered with NameSilo, LLC.
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 February 27, 2018; the Forum received payment on February 27, 2018.
On, February 27, 2018, NameSilo, LLC confirmed by e-mail to the Forum that the <wabashnati0nal.com> domain name is registered with NameSilo, LLC and that Respondent is the current registrant of the name. NameSilo, LLC has verified that Respondent is bound by the NameSilo, 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 February 27, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 19, 2018 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@wabashnati0nal.com. Also on February 27, 2018, 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 March 26, 2018, 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 name be transferred from Respondent to Complainant.
A. Complainant
Complainant, Wabash National, L.P., uses its WABASH NATIONAL mark to provide and market its trailers and retail store services. Complainant has rights in the mark based upon registration with the United States Patent and Trademark Office (“USPTO”). (e.g. Reg. No. 3,043,990, registered on Jan. 17, 2006.) See Compl. Ex. B. Respondent’s <wabashnati0nal.com> is confusingly similar to Complainant’s WABASH NATIONAL mark, as it contains Complainant’s mark in its entirety, merely misspelling of the word “national.”
Respondent does not have rights or legitimate interests in the <wabashnati0nal.com> domain name. Respondent is not commonly known by the disputed domain name. Respondent is not using the disputed domain name to make a bona fide offering of goods or services or for a legitimate non-commercial or fair use. Rather, Respondent is attempting to impersonate Complainant and Complainant’s individual employees to send falsified invoices requesting payment in the name of Complainant for Respondent commercial gain. See Compl. Ex. D.
Respondent has registered and used the <wabashnati0nal.com> domain name in bad faith. Respondent uses the disputed domain name to confuse Internet users as to the source, sponsorship, affiliation, or endorsement of Respondent’s website to defraud Complainant’s customers for its own commercial gain. In addition, Respondent had actual knowledge of Complainant’s WABASH NATIONAL mark when it registered the <wabashnati0nal.com> domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding. The disputed domain name was created on November 26, 2017.
The Panel finds that the disputed domain name is confusingly similar to Complainant’s valid and subsisting trademark; that Respondent has no rights or legitimate interests in or to the disputed domain name; and that Respondent has engaged in bad faith use and registration of the disputed domain name.
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 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 (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 Panel finds that the disputed domain name, <wabashnati0nal.com>, is confusingly similar to Complainant’s valid and subsisting trademark, WABASH NATIONAL. Complainant has adequately plead its rights and interests in and to this trademark. Respondent arrives at the disputed domain name by merely changing an “o” to a “0” and adding “.com” to the Complainant’s trademark. This is insufficient to distinguish the disputed domain name from Complainant’s trademark.
As such, the Panel finds that the disputed domain name is confusingly similar to Complainant’s trademark.
The Panel further finds that Respondent has no rights or legitimate interests in or to the disputed domain name. Respondent has no permission, right or license to register the disputed domain name. Respondent is also not commonly known by the disputed domain name. Respondent is not using the disputed domain name to make a bona fide offering of goods or services or for a legitimate non-commercial or fair use. Rather, Respondent is attempting to impersonate Complainant and Complainant’s individual employees to send falsified invoices requesting payment in the name of Complainant for Respondent commercial gain. See Compl. Ex. D.
As such, Respondent has no rights or legitimate interests in or to the disputed domain name.
The Panel further finds that Respondent has engaged in bad faith use and registration of the disputed domain name. Respondent uses the disputed domain name in bad faith as Respondent intentionally attempts to confuse Internet users as to the source, sponsorship, affiliation, or endorsement of Respondent’s website to defraud Complainant’s customers for its own commercial gain. Use of a domain name that appropriates a complainant’s mark to send fraudulent emails for a respondent’s commercial gain evinces a finding of bad faith per 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 provides screenshot evidence of emails it asserts Respondent sent to Complainant’s customers in which Respondent passes off as Complainant and Complainant’s employees for Respondent’s commercial gain. See Compl. Ex. D. The Panel finds that Respondent registered and used the <wabashnati0nal.com> domain name in bad faith per Policy ¶ 4(b)(iv).
Last, Complainant contends Respondent had actual knowledge of Complainant’s WABASH NATIONAL mark when it registered the <wabashnati0nal.com> domain name. Given the nature of Respondent’s actions and the totality of the circumstances, the Panel finds that Respondent had actual knowledge of Complainant’s prior rights and interests in the trademark WABASH NATIONAL.
As such, the Panel finds that Respondent engaged in bad faith use and registration of 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 <wabashnati0nal.com> domain name be transferred from Respondent to Complainant.
Kenneth L. Port, Panelist
Dated: March 26, 2018
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