Apple Inc. v. Evelyn Seidman
Claim Number: FA1912001875767
Complainant is Apple Inc. (“Complainant”), represented by Georges Nahitchevansky of Kilpatrick Townsend & Stockton LLP, United States of America. Respondent is Evelyn Seidman (“Respondent”), Nevada, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <icloudnv.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 Honourable Neil Anthony Brown QC as Panelist.
Complainant submitted a Complaint to the Forum electronically on December 18, 2019; the Forum received payment on December 18, 2019.
On December 19, 2019, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <icloudnv.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 December 26, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 15, 2020 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@icloudnv.com. Also on December 26, 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 January 17, 2020, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed The Honourable Neil Anthony Brown QC 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 made the following contentions.
Complainant, Apple Inc., designs, manufactures, and markets mobile communication and media devices and personal computers, and sells a variety of related software, services, accessories, and third-party digital content and applications. Complainant has rights in the ICLOUD mark based upon the registration with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 3,744,821, registered Feb. 2, 2010). Respondent’s <icloudnv.com> domain name is confusingly similar to Complainant’s mark as Respondent merely adds the geographic abbreviation “nv” and the “.com” generic top-level domain (“gTLD”) to Complainant’s mark.
Respondent does not have rights or legitimate interests in the <icloudnv.com> domain name. Respondent is not permitted or licensed to use Complainant’s ICLOUD mark and is not commonly known by the disputed domain name. Additionally, 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 uses the <icloudnv.com> domain name to deceive consumers into accessing Respondent’s website in order to offer competing services.
Respondent has registered and uses the <icloudnv.com> domain name in bad faith. Respondent is attempting to attract Internet users to its competing website for commercial gain. Further, Respondent uses the disputed domain name to conduct a phishing scam. Additionally, Respondent used a privacy service to conceal its identity. Finally, Respondent had actual knowledge or constructive notice of Complainant’s ICLOUD mark prior to registering the <icloudnv.com> domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
1. Complainant is a United States company that designs, manufactures, and markets mobile communication and media devices and personal computers, and sells a variety of related software, services, accessories, and third-party digital content and applications.
2. Complainant has established its trademark rights in the ICLOUD mark based upon the registration of the mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 3,744,821, registered Feb. 2, 2010).
3. Respondent registered the <icloudnv.com> domain name on September 8, 2017.
4. Respondent uses the <icloudnv.com> domain name to deceive consumers into accessing Respondent’s website in order to offer competing services and to conduct a phishing scam.
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 set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
The first question that arises is whether Complainant has rights in a trademark or service mark on which it may rely. Complainant submits that it has rights to the ICLOUD mark based upon registration with the USPTO. Registration with USPTO sufficiently establishes rights in a mark under Policy ¶ 4(a)(i). See Haas Automation, Inc. v. Jim Fraser, FA 1627211 (Forum Aug. 4, 2015) (finding that Complainant’s USPTO registrations for the HAAS mark sufficiently demonstrate its rights in the mark under Policy ¶ 4(a)(i)). Complainant provides screenshots of TESS search results for its USPTO registrations for the ICLOUD mark (e.g., Reg. No. 3,744,821, registered Feb. 2, 2010). Therefore, the Panel finds that Complainant has rights in the ICLOUD mark per Policy ¶ 4(a)(i).
The next question that arises is whether the disputed domain name is identical or confusingly similar to Complainant’s ICLOUD mark. Complainant submits that that Respondent’s <icloudnv.com> domain name is confusingly similar to Complainant’s ICLOUD mark as Respondent merely adds a geographic modifier, “nv”, and a gTLD to the mark. Additions of a geographic designations and a gTLD to a complainant’s mark does not negate any confusing similarity between a disputed domain name and mark under Policy ¶ 4(a)(i). See Doosan Corporation v. philippe champain, FA 1636675 (Forum Oct. 13, 2015) (finding that geographic designations or terms descriptive of a complainant’s business operations do not remove a domain name from the realm of confusing similarity.); see alsoTrip Network Inc. v. Alviera, FA 914943 (Forum Mar. 27, 2007) (concluding that the affixation of a gTLD to a domain name is irrelevant to a Policy ¶ 4(a)(i) analysis). Complainant argues Respondent merely adds the geographic designation “nv”, which stands for Nevada and a “.com” gTLD to Complainant’s ICLOUD mark. Complaint also submits that Complainant runs a well-known data center for its ICLOUD services in Nevada and that, therefore, the addition of “nv” actually adds to the confusion. The Panel agrees with Complainant and finds that the <icloudnv.com> domain name is confusingly similar to the ICLOUD mark per Policy ¶ 4(a)(i).
Complainant has thus made out the first of the three elements that it must establish.
It is now well established that Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), then the burden shifts to Respondent to show it does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“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”).
The Panel finds that Complainant has made out a prima facie case that arises from the following considerations:
(a) Respondent has chosen to take Complainant’s ICLOUD trademark and to use it in its domain name, incorporating the mark in its entirety, along with a geographic modifier, “nv”, that does not negate the confusing similarity with Complainant’s trademark;
(b) Respondent registered the <icloudnv.com> domain name on September 8, 2017;
(c) Respondent uses the <icloudnv.com> domain name to deceive consumers into accessing Respondent’s website in order to offer competing services and to conduct a phishing scam;
(d) Respondent has engaged in these activities without the consent or approval of Complainant;
(e) Complainant argues that Respondent has no rights or legitimate interests in the <icloudnv.com> domain name as Respondent is not authorized to use Complainant’s ICLOUD mark and is not commonly known by the disputed domain name. Where a response is lacking, WHOIS information can support a finding that a respondent is not commonly known by the disputed domain name, especially where a privacy service has been engaged, under Policy ¶ 4(c)(ii). See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum Sept. 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark.); see also Kohler Co. v. Privacy Service, FA1505001621573 (Forum July 2, 2015) (holding that the respondent was not commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii) where “Privacy Service” was listed as the registrant of the disputed domain name). Additionally, lack of evidence in the record to indicate that the respondent has been authorized to register a domain name using a complainant’s mark supports a finding that respondent does not have rights or legitimate interests in the disputed domain name. See Navistar International Corporation v. N Rahmany, FA1505001620789 (Forum June 8, 2015) (finding that the respondent was not commonly known by the disputed domain name where the complainant had never authorized the respondent to incorporate its NAVISTAR mark in any domain name registration). The Panel notes that a privacy service was used by Respondent, but was lifted as a result of this proceeding. As a result, the Panel notes that the WHOIS information of record identifies the registrant as “Evelyn Seidman.” Furthermore, there is no evidence in the record to suggest Respondent was authorized to use Complainant’s ICLOUD mark. The Panel therefore finds under Policy ¶ 4(c)(ii) that Respondent has not been commonly known by the disputed domain name;
(f) Complainant argues that Respondent uses the <icloudnv.com> domain name to redirect users to Respondent’s competing website. Use of a disputed domain name to offer competing products and services may not amount to a bona fide offering of goods or services or a legitimate noncommercial or fair use of the name under Policy ¶¶ 4(c)(i) & (iii). See General Motors LLC v. MIKE LEE, FA 1659965 (Forum Mar. 10, 2016) (finding that “use of a domain to sell products and/or services that compete directly with a complainant’s business does not constitute a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).”). Complainant argues that Respondent references Complainant’s mark at the top of the webpage and offers services in direct competition with Complainant. The Panel finds that Respondent’s use of the <icloudnv.com> domain name to offer competing services is not a bona fide offering of goods or services or legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) & (iii).
All of these matters go to make out the prima facie case against Respondent. As Respondent has not filed a Response or attempted by any other means to rebut the prima facie case against it, the Panel finds that Respondent has no rights or legitimate interests in the disputed domain name.
Complainant has thus made out the second of the three elements that it must establish.
It is clear that to establish bad faith for the purposes of the Policy, Complainant must show that the disputed domain name was registered in bad faith and has been used in bad faith. It is also clear that the criteria set out in Policy ¶ 4(b) for establishing bad faith are not exclusive, but that Complainants in UDRP proceedings may also rely on conduct that is bad faith within the generally accepted meaning of that expression.
Having regard to those principles, the Panel finds that the disputed domain name was registered and used in bad faith. That is so for the following reasons.
First, Complainant argues that Respondent registered and uses the <icloudnv.com> domain name in bad faith because Respondent is disrupting Complainant’s business and diverting users to the disputed domain name to offer competing goods and services. Using a disputed domain name to mislead users and redirect them to a competing website may indicate bad faith per Policy ¶¶ 4(b)(iii) and (iv). See ZIH Corp. v. ou yang lin q, FA1761403 (Forum Dec. 29, 2017) (Finding bad faith where Respondent used the infringing domain name to disrupt Complainant’s business by diverting Internet users from Complainant’s website to Respondent’s website where it offered competing printer products); see also Citadel LLC and its related entity, KCG IP Holdings, LLC v. Joel Lespinasse / Radius Group, FA1409001579141 (Forum Oct. 15, 2014) (“Here, the Panel finds evidence of Policy ¶ 4(b)(iv) bad faith as Respondent has used the confusingly similar domain name to promote its own financial management and consulting services in competition with Complainant.”). The Panel recalls Complainant’s contention that Respondent uses the <icloudnv.com> domain name to divert potential customers of Complainant’s business to a webpage that offer services in direct competition with Complainant’s ICLOUD services. Therefore, the Panel finds that Respondent registered and uses the disputed domain name in bad faith pursuant Policy ¶¶ 4(b)(iii) and (iv).
Secondly, Complainant contends Respondent uses the disputed domain name to host a phishing scheme. Use of a disputed domain name in connection with a phishing scheme does not represent good faith per Policy ¶ 4(a)(iii). See Klabzuba Oil & Gas, Inc. v. LAKHPAT SINGH BHANDARI, FA1506001625750 (Forum July 17, 2015) (“Respondent uses the <klabzuba-oilgas.com> domain to engage in phishing, which means Respondent registered and uses the domain name in bad faith under Policy ¶ 4(a)(iii).”). Complainant contends Respondent hosts a website that is visually identical to that hosted by Complainant in an attempt to gain the personal login information of Internet users that mistake Respondent’s resolving website for Complainant’s own. Furthermore, Complainant provides copies of numerous complaints provided by consumers that accuse Respondent of being a “scam” that solicits personal information. The Panel agrees with Complainant and finds Respondent registered or used the disputed domain name in bad faith per Policy ¶ 4(a)(iii).
Thirdly, Complainant argues that Respondent registered the <icloudnv.com> domain name with actual knowledge of Complainant’s rights in the ICLOUD mark. Registering a domain name with knowledge of another’s rights therein may be indicative of bad faith under Policy ¶4(a)(iii). See Norgren GmbH v. Domain Admin / Private Registrations Aktien Gesellschaft, FA1501001599884 (Forum Feb. 25, 2014) (holding that the respondent had actual knowledge of the complainant and its rights in the mark, thus demonstrating bad faith registration under Policy ¶ 4(a)(iii), where the respondent was using the disputed domain name to purposely host links related to the complainant’s field of operation); see also Yahoo! Inc. v. Butler, FA 744444 (Forum Aug. 17, 2006) (finding bad faith where the respondent was "well-aware of the complainant's YAHOO! mark at the time of registration). Here, Complainant argues that Respondent’s knowledge of Complainant’s mark prior to registering <icloudnv.com> is apparent from the notoriety of Complainant’s trademark and from Respondent’s use of the disputed domain name to host a competing website which features Complainant’s mark and products. See Compl. Ex. W. Therefore, the Panel finds that Respondent registered the <icloudnv.com> domain name with actual knowledge of Complainant’s ICLOUD mark, thus demonstrating bad faith per Policy ¶4(a)(iii).
Finally, in addition and having regard to the totality of the evidence, the Panel finds that, in view of Respondent’s registration of the disputed domain name using the ICLOUD mark and in view of the conduct that Respondent has engaged in when using the disputed domain name, Respondent registered and used it in bad faith within the generally accepted meaning of that expression.
Complainant has thus made out the third of the three elements that it must establish.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <icloudnv.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honourable Neil Anthony Brown QC
Panelist
Dated: January 18, 2020
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