United States Postal Service v. Carolina Rodrigues / Fundacion Comercio Electronico
Claim Number: FA1902001828644
Complainant is United States Postal Service (“Complainant”), represented by Jennifer A. Van Kirk of Lewis Roca Rothgerber Christie LLP, Arizona, USA. Respondent is Carolina Rodrigues / Fundacion Comercio Electronico (“Respondent”), Panama.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <wwwinformeddelivery.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.
The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Complainant submitted a Complaint to the Forum electronically on February 5, 2019; the Forum received payment on February 5, 2019.
On February 6, 2019, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <wwwinformeddelivery.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 February 8, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 28, 2019 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@wwwinformeddelivery.com. Also on February 8, 2019, 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 1, 2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed the Honorable Charles K. McCotter, Jr. (Ret.) 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, United States Postal Service, uses their mark INFORMED DELIVERY in connection with mail tracking and delivery services. Complainant has rights in the INFORMED DELIVERY mark based on registration with the United States Patent and Trademark Office (“USPTO”) (e.g. Reg. No. 5,125,923, registered Jan. 17, 2017). Respondent’s <wwwinformeddelivery.com> domain name is confusingly similar to Complainant’s INFORMED DELIVERY mark, as it incorporates the entire mark, merely adding generic prefix “www” and the generic top-level domain (“gTLD”) “.com.”
Respondent has no rights or legitimate interests in the <wwwinformeddelivery.com> domain name. Respondent is not commonly known by the disputed domain name, nor has Complainant authorized Respondent to use the INFORMED DELIVERY mark. Respondent’s use of the disputed domain name does not amount to a bona fide offering of goods or services or a legitimate noncommercial or fair use. Rather, Respondent is using the disputed domain name to direct internet traffic to a website using pay-per-click links that are related to Complainant’s business.
Respondent registered and is using the <wwwinformeddelivery.com> domain name in bad faith. Respondent intentionally seeks to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website. Respondent creates this confusion to host pay-per-click links related to Complainant’s business.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant, United States Postal Service, uses their mark INFORMED DELIVERY in connection with mail tracking and delivery services. Complainant has rights in the INFORMED DELIVERY mark based on registration with the USPTO (e.g. Reg. No. 5,125,923, registered Jan. 17, 2017). Respondent’s <wwwinformeddelivery.com> domain name is confusingly similar to Complainant’s INFORMED DELIVERY mark.
Respondent registered the <wwwinformeddelivery.com> domain name on May 18, 2018.
Respondent has no rights or legitimate interests in the <wwwinformeddelivery.com> domain name. Respondent is using the disputed domain name to direct internet traffic to a website using pay-per-click links that are related to Complainant’s business.
Respondent registered and is using the <wwwinformeddelivery.com> domain name 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.”).
Complainant has rights in the INFORMED DELIVERY mark under Policy ¶ 4(a)(i) based upon registration of the mark with the USPTO. See DIRECTV, LLC v. The Pearline Group, FA 1818749 (Forum Dec. 30, 2018) (Complainant’s ownership of a USPTO registration for DIRECTV shows its rights in the mark for the purposes of Policy ¶ 4(a)(i)).
Respondent’s <wwwinformeddelivery.com> domain name is confusingly similar to the INFORMED DELIVERY mark as it incorporates the entire mark, deletes a space, and adds the generic prefix “www” and the gTLD “.com.”
Respondent lacks rights or legitimate interests in the <wwwinformeddelivery.com> domain name.
Complainant has not authorized Respondent to use Complainant’s mark. The WHOIS information for the disputed domain name lists the registrant as “Carolina Rodrigues / Fundacion Comercio Electronico.” Where a response is lacking, WHOIS information can be used to determine whether a respondent is commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Amazon Technologies, Inc. v. LY Ta, FA 1789106 (Forum June 21, 2018) (concluding a respondent has no rights or legitimate interests in a disputed domain name where the complainant asserted it did not authorize the respondent to use the mark, and the relevant WHOIS information indicated the respondent is not commonly known by the domain name). Additionally, lack of authorization to use a complainant’s mark may indicate that the respondent is not commonly known by the disputed domain name. See Emerson Electric Co. v. golden humble / golden globals, FA 1787128 (Forum June 11, 2018) (“lack of evidence in the record to indicate a respondent is authorized to use [the] complainant’s mark may support a finding that [the] respondent does not have rights or legitimate interests in the disputed domain name per Policy ¶ 4(c)(ii)”). Therefore, Respondent is not commonly known by the disputed domain name.
Respondent fails to use the <wwwinformeddelivery.com> domain name to make a bona fide offering of goods and services or for a legitimate or noncommercial or fair use. The name resolves to a website displaying pay-per-click links related to Complainant’s business. See The Toronto-Dominion Bank v. GEORGE WASHERE, FA 1785311 (Forum June 7, 2018) (“Respondent’s confusingly similar <esecuretdbank.com> domain name references a website displaying links to competing third parties as well as links to Complainant and various unrelated third parties. Using the domain name in this manner shows neither a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).”).
Respondent registered and uses the <wwwinformeddelivery.com> domain name in bad faith. Use of a confusingly similar domain name to host pay-per-clicks links to third-party websites related to a complainant’s business shows bad faith per Policy ¶ 4(b)(iv). See Clark Equipment Company v. Namase Patel / Mumbai Domains, FA1406001566288 (Forum July 30, 2014) (“The Panel observes that the Respondent’s disputed domain name leads to a website that features links to products that directly compete with Complainant’s products. The Panel determines that Respondent is attempting to mislead consumers as to Complainant’s affiliation with the disputed domain name, and Respondent likely profits from the resulting confusion. Therefore, the Panel finds evidence of bad faith pursuant to Policy ¶ 4(b)(iv).”).
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <wwwinformeddelivery.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: March 12, 2019
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