United States Postal Service v. Uspsx Account / USpsx
Claim Number: FA1805001786048
Complainant is United States Postal Service ("Complainant"), represented by Jennifer A. Van Kirk of Lewis Roca Rothgerber Christie LLP, Arizona. Respondent is Uspsx Account / USpsx ("Respondent"), Nigeria.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <uspsx.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.
David E. Sorkin as Panelist.
Complainant submitted a Complaint to the Forum electronically on May 10, 2018; the Forum received payment on May 10, 2018.
On May 11, 2018, NameCheap, Inc. confirmed by email to the Forum that the <uspsx.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 14, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 4, 2018 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@uspsx.com. Also on May 14, 2018, 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.
On June 8, 2018, 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 any response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant has used the USPS mark throughout the U.S. and around the world for more than forty-six years in connection with a wide array of products and services, including packaging, domestic and international mailing and shipping services, tracking of documents and parcels, express mailing and shipping services, electronic cash and financial transactions, retail store services, philatelic products, passport application services, postcards, envelopes, stationery, novelty items, and other merchandise. Complainant owns numerous registrations for USPS as a standard character word mark in the United States and many other jurisdictions, and asserts that the mark is famous around the world.
Respondent registered the disputed domain name <uspsx.com> through a privacy registration service in September 2017. The domain name is being used for a website that is a nearly exact replica of Complainant's own mobile website, displaying the USPS mark together with Complainant's other marks and trade dress, and incorporating material copied from Complainant's site. Complainant accuses Respondent of using Complainant's mark to create confusion among consumers, thereby inducing them to purchase services from or provide personal information to Respondent. Complainant states that Respondent is not an authorized vendor or licensee of Complainant, and has not been authorized to use the USPS mark.
Complainant contends on the above grounds that the disputed domain name <uspsx.com> is confusingly similar to a mark in which Complainant has rights; that Respondent lacks rights or legitimate interests in the domain name; and that the domain name was registered and is being used in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
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 is being 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.
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 disputed domain name <uspsx.com> adds the letter "X" and the ".com" top-level domain to Complainant's registered USPS mark. These additions do not substantially diminish the similarity between the domain name and Complainant's mark for purposes of the Policy. See, e.g., United States Postal Service v. Gary Wiggin / JY, FA 1708540 (Forum Jan. 30, 2017) (finding <usps6.com> confusingly similar to USPS); Google Inc. v David Miller, FA 1067791 (Forum Oct. 24, 2007) (finding <youtubex.com> confusingly similar to YOUTUBE). The Panel finds that the disputed domain name is confusingly similar to a mark in which Complainant has rights.
Under the Policy, the Complainant must first make a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain name, and then the burden shifts to the 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 mark without authorization, and is being used for a website that mimics Complainant's own site for the apparent purpose of promoting competing services, collecting personal information from users, or both. Such use does not give rise to rights or legitimate interests under the Policy. See, e.g., Home Depot Product Authority, LLC v. Proxy Protection LLC, FA 1786278 (Forum June 7, 2018) (finding lack of rights or legitimate interests where domain name incorporating trademark was used for website imitating complainant's trade dress and offering competing products for sale); United States Postal Service v. Gary Wiggin / JY, supra (same, where domain name incorporating USPS trademark was used for website offering competing services for sale).
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 has been 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 is using a domain name that incorporates Complainant's famous trademark for a website that mimics Complainant's own site for the apparent purpose of promoting competing services, collecting personal information from users, or both. See, e.g., H-D U.S.A., LLC v. Ridwan Katob, FA 1747798 (Forum Oct. 4, 2017) (finding bad faith registration and use where domain name was used for website displaying complainant's mark and trade dress and promoting competing products and services). The domain name was registered through a privacy service, and the underlying registration data provided by Respondent is of questionable veracity. (The address in the whois domain registration record, verified by the registrar, includes a street address in Silver Spring, Maryland, accompanied by the country code for Nigeria and a United Kingdom telephone number.) See id. (noting that use of a privacy registration service may also be indicative of bad faith). 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 <uspsx.com> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: June 8, 2018
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