United States Postal Service v. Dursun BAYRAK
Claim Number: FA1805001788459
Complainant is United States Postal Service (“Complainant”), represented by Jennifer A. Van Kirk of Lewis Roca Rothgerber Christie LLP, Arizona, USA. Respondent is Dursun BAYRAK (“Respondent”), Turkey.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <usps.info>, registered with Dynadot, 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.
Paul M. DeCicco, as Panelist.
Complainant submitted a Complaint to the Forum electronically on May 24, 2018; the Forum received payment on May 24, 2018.
On May 29, 2018, Dynadot, LLC confirmed by e-mail to the Forum that the <usps.info> domain name is registered with Dynadot, LLC and that Respondent is the current registrant of the name. Dynadot, LLC has verified that Respondent is bound by the Dynadot, 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 May 30, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 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@usps.info. Also on May 30, 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 June 20, 2018, 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 States Postal Service, is an independent establishment of the United States Government and sets the global industry standard for mailing and shipping related goods and services.
Complainant uses its USPS mark to promote its products and services and established rights in the mark through registration with the United States Patent and Trademark Office (USPTO).
Respondent’s <usps.info> domain name is identical to Complainant’s mark because it merely appends the “.info” generic top-level domain (“gTLD”).
Respondent does not have rights or legitimate interests in the <usps.info> domain name. Complainant has not licensed or otherwise authorized Respondent to use its USPS mark in any fashion. Respondent is also not commonly known by the disputed domain name as the WHOIS information of record lists “Dursun BAYRAK” as the registrant. Respondent is not using the <usps.info> domain name in connection with any bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent uses the domain name to resolve to various unsecure websites that distribute malware or are used to phish for Internet users’ information.
Respondent registered and is using the disputed domain name in bad faith. Respondent attempts to disrupt Complainant’s business and create confusion with Complainant’s mark for Respondent’s commercial gain. Moreover, Respondent registered the disputed domain name with full knowledge of Complainant’s rights in the USPS mark due to the fame of the mark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has rights in the USPS mark through its registration of such mark with the USPTO.
Respondent is not affiliated with Complainant and had not been authorized to use Complainant’s trademark in any capacity.
Respondent registered the at‑issue domain name after Complainant acquired rights in its relevant trademarks.
Respondent uses the at-issue domain name to address a variety of unsecure websites that distribute malware or are used to phish for internet users’ private information.
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 at-issue domain name is confusingly similar to a trademark in which Complainant has rights.
Complainant’s ownership of a USPTO registration for the USPS mark demonstrates its rights in such mark for the purposes of Policy ¶ 4(a)(i). See Humor Rainbow, Inc. v. James Lee, FA 1626154 (Forum Aug. 11, 2015) (“There exists an overwhelming consensus amongst UDRP panels that USPTO registrations are sufficient in demonstrating a complainant’s rights under Policy ¶ 4(a)(i) and its vested interests in a mark. . . . Due to Complainant’s attached USPTO registration on the principal register …, the Panel agrees that it has sufficiently demonstrated its rights per Policy ¶ 4(a)(i).”).
Respondent’s <usps.info> domain name contains Complainant’s USPS mark followed by the top-level domain name “.info.” The slight alteration to Complainant’s trademark made by adding a top-level domain name is insufficient to distinguish the at-issue domain name from Complainant’s mark for the purposes of the Policy ¶ 4(a)(i). Therefore, the Panel finds that Respondent’s <usps.info> domain name is identical to Complainant’s USPS trademark. See Morgan Stanley v. Eugene Sykorsky / private person, FA 1651901 (Forum Jan. 19, 2016) (concluding that the addition of a generic term and top level domain to a trademark is inconsequential under a Policy ¶ 4(a)(i) analysis.).
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 is not authorized to use Complainant’s trademark in any capacity and as discussed below there is no evidence supporting a finding pursuant to Policy 4(c) that Respondent has rights or interests in the at-issue domain name, Complainant’s prima facie showing acts conclusively.
WHOIS information for the at-issue domain name identifies the domain name’s registrant as “Dursun BAYRAK.” The record before the Panel contains no evidence that might otherwise tend to prove, contrary to the WHOIS information, that Respondent is commonly known by the at-issue domain name. The Panel therefore concludes that for the purposes of Policy ¶ 4(c)(ii) Respondent is not commonly known by the <usps.info> domain name. See Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Forum July 17, 2006) (concluding that the respondent was not commonly known by the <coppertown.com> domain name where there was no evidence in the record, including the WHOIS information, suggesting that the respondent was commonly known by the disputed domain name).
What is more, Respondent uses the domain name in furtherance of distributing malware and facilitating a phishing scheme aimed at fraudulently collecting personal private information. Such uses of the domain name indicate neither a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use of the domain name under Policy ¶ 4(c)(iii). See Harry Winston, Inc. v. Domain Admin / Whois Privacy Corp., FA 1749276 (Forum, Oct, 18, 2017) (holding that use of a domain name to redirect Internet users to a rotating series of third-party websites, some of which attempt to install malware on users’ computers, does not show the respondent has rights or legitimate interests in the domain name.); 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 conclusively demonstrates Respondent’s lack of rights and lack of interests in respect of the at-issue domain name pursuant to Policy ¶ 4(a)(ii).
Respondent’s <usps.info> domain name was registered and used in bad faith. As discussed below without limitation, Policy ¶ 4(b) specific bad faith circumstances as well as other circumstance are present which compel the Panel to conclude that Respondent acted in bad faith pursuant to paragraph 4(a)(iii) of the Policy.
As mentioned above regarding rights and legitimate interests, Respondent uses the at-issue domain name to reference various third party websites designed to distribute malware and perpetrate phishing schemes. For instance, on arrival at one of these websites visitors are presented with a notifications pretending to be from tech support that indicates that there are issues with the visitor’s PC that requires a payment to be fixed. Another pop-up window declares that “your computer has alerted us that it has been infected with a trojan and spyware” and that personal information has been stolen. Fraudulent tech support services are offered to fix the contrived problems. Respondent’s use of the domain name is thus disruptive to Complainant’s business and indicates Respondent’s bad faith per Policy ¶¶ 4(b)(iii) and (iv), and otherwise. See Harry Winston, Inc. v. Domain Admin / Whois Privacy Corp., FA 1749276 (Forum, Oct, 18, 2017) (finding the respondent acted in bad faith by using “a technique known as FFDNS to divert internet users to a rotating series of webpages unrelated to or in competition with Complainant’s business, some of which attempt to install malware onto users’ computers.”); see also, Google Inc. v. Domain Admin / Whois Privacy Corp., FA1506001622862 (Forum Aug. 10, 2015) (finding that the respondent’s apparent use of the disputed domain name in furtherance of a ‘phishing’ scheme further established its bad faith registration and use of the disputed domain name under Policy ¶ 4(a)(iii)). Moreover, Complainant’s USPS trademark is strongly associated with Complainant. Therefore, Respondent’s unauthorized use of such mark in the at-issue domain name can be characterized as “opportunistic bad faith.” See Christian Dior v. Quintas, WIPO D2000-0226 (May 17, 2000) (“The Domain Names are so obviously connected with such a well-known name and products that its very use by someone with no connection with the products suggests opportunistic bad faith.”)
Lastly, Respondent registered the <usps.info> domain name knowing that Complainant had trademark rights in <usps.info>. Respondent’s prior knowledge is evident from Respondent’s use of <usps.info> domain name as discussed above, as well as from the notoriety of Complainant’s USPS trademark. It is therefore clear that Respondent intentionally registered the at-issue domain name to improperly exploit its trademark value, rather than for some benign reason. Respondent’s prior knowledge of Complainant's trademark further indicates that Respondent registered and used the <usps.info> domain name in 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 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 <usps.info> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: June 24, 2018
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page