Barclays PLC v. Erik BjĂ❡rklund / LivingTree Charities, Inc.
Claim Number: FA1902001830621
Complainant is Barclays PLC (“Complainant”), represented by Eric J. Shimanoff of Cowan, Liebowitz & Latman, P.C., New York, USA. Respondent is Erik BjĂ❡rklund / LivingTree Charities, Inc. (“Respondent”), Georgia, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <barclayshomegroup.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.
Kenneth L. Port as Panelist.
Complainant submitted a Complaint to the Forum electronically on February 20, 2019; the Forum received payment on February 20, 2019.
On February 21, 2019, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <barclayshomegroup.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 27, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 19, 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@barclayshomegroup.com. Also on February 27, 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 25, 2019, 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, Barclays PLC, uses their mark BARCLAYS in connection with banking and financial services. Complainant has rights in the BARCLAYS mark based on registration with the United States Patent and Trademark Office (“USPTO”) (e.g. Reg. No. 3,049,848, registered Jan. 24, 2006). See Amend. Compl. Ex. 5. Respondent’s <barclayshomegroup.com> domain name is confusingly similar to Complainant’s BARCLAYS mark, as it incorporates the mark in its entirety, merely adding generic terms “home” and “group,” and the generic top-level domain (“gTLD”) “.com.”
Respondent has no rights or legitimate interests in the <barclayshomegroup.com> domain name. Respondent is not commonly known by the disputed domain name, nor has Complainant authorized Respondent to use the BARCLAYS mark in any manner. 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, the disputed domain name resolves to a website purporting to offer similar services to that of the Complainant.
Respondent registered and is using the <barclayshomegroup.com> domain name in bad faith. Respondent intentionally seeks to attract Internet users to its website by creating a likelihood of confusion with Complainant’s marks as to the source, sponsorship, affiliation, or endorsement of Respondent’s website. Further, Respondent’s bad faith is indicated by its use of the disputed domain name to offer similar services to that of the Complainant, thereby disrupting Complainant’s business. Moreover, Respondent’s use of the disputed domain name causes initial interest confusion. Additionally, Respondent failed to respond to Complainant’s cease and desist letter. Finally, Respondent had actual knowledge of Complainant’s rights in the BARCLAYS mark prior to registering the disputed domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding. The disputed domain name was registered on April 16, 2018
The Panel finds that the disputed domain name is confusingly similar to Complainant’s valid and subsisting trademark; that Respondent lacks any 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, <barclayshomegroup.com>, is confusingly similar to complainant’s valid and subsisting trademark, BARCLAYS. Complainant has adequately plead its rights and interests in and this trademark. Respondent arrives at the disputed domain name by merely appending the generic English words “home” and “group” with the gTLD “.com” to the end of 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 lacks any rights or legitimate interests in and to the disputed domain name. Respondent has no right, permission or license to register the disputed domain name. Respondent is not commonly known by the disputed domain name. Further, 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, the disputed domain name resolves to a website purporting to offer similar services to that of the Complainant.
As such, the Panel finds that Respondent lacks any rights or legitimate interests in or to the disputed domain name.
Finally, the Panel finds that Respondent has engaged in bad faith use and registration of the disputed domain name. Complainant argues that Respondent’s bad faith is indicated by its use of the disputed domain name to offer competing services to that of the Complainant’s business. Use of a disputed domain name to offer services that directly compete with a complainant demonstrates bad faith per Policy ¶¶ 4(b)(iii) and (iv). See LoanDepot.com, LLC v. Kaolee (Kay) Vang-Thao, FA1762308 (Forum January 9, 2018) (Finding that Respondent’s use of the disputed domain name to offer competing loan services disrupts Complainant’s business under Policy ¶ 4(b)(iii)). Complainant provides screenshots of the disputed domain name’s resolving webpage, which appears to offer financing services. See Amend. Compl. Ex. 7. Therefore, the Panel finds that Respondent registered and uses the disputed domain name in bad faith under Policy ¶ 4(b)(iii) and/or (iv).
The Panel further finds that Respondent had actual knowledge of Complainant’s prior rights and interests in and to the trademark BARCLAYS. Here, Complainant contends that Respondent’s actual knowledge is shown by its use of the BARCLAYS mark, as shown in screenshots of the web pages associated with the disputed domain name. See Amend. Compl. Ex. 7. Given the fame of Complainant’s mark and the totality of the circumstances, the Panel finds that Respondent had actual knowledge of Complainant’s rights and interests in and to its trademark.
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 <barclayshomegroup.com> domain name be transferred from Respondent to Complainant.
Kenneth L. Port, Panelist
Dated: March 27, 2019
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page