Archer Systems LLC v. Roderick Gaines / Archer Systems Secondary Domains / Repossessed by Go Daddy
Claim Number: FA2002001882329
Complainant is Archer Systems LLC (“Complainant”), represented by Steven L. Rinehart, Utah, USA. Respondents are Roderick Gaines / Archer Systems Secondary Domains / Repossessed by Go Daddy (“Respondents”), USA.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <archersysterms.com>, registered with Google LLC; <archersytems.com>, <archerxystems.com>, and <archerystems.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.
Alan L. Limbury, as Panelist.
Complainant submitted a Complaint to the Forum electronically on February 6, 2020 and the Forum received payment that day.
On February 7, 2020, Google LLC confirmed by e-mail to the Forum that the <archersysterms.com> domain name is registered with Google LLC and that Roderick Gaines is the current registrant of the <archersysterms.com> name.
On February 7, 2020, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <archerxystems.com>, <archerystems.com> and <archersytems.com>, domain names are registered with GoDaddy.com, LLC; that Archer Systems Secondary Domains is the current registrant of the <archerxystems.com>, and <archerystems.com> domain names and that Repossessed by Go Daddy is the current registrant of the <archersytems.com> domain name. In doing so, GoDaddy.com, LLC noted:
“ARCHERSYTEMS.COM has been Repossessed By GoDaddy, we are willing to give it to the complainant with a signed suspension and settlement.”
Google LLC and GoDaddy.com, LLC have verified that Respondents are bound by the Google LLC and GoDaddy.com, LLC registration agreements and have 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 13, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 4, 2020 by which Respondents could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondents’ registrations as technical, administrative, and billing contacts, and to postmaster@archersysterms.com, postmaster@archersytems.com, postmaster@archerxystems.com and postmaster@archerystems.com. Also on February 13, 2020, the Written Notice of the Complaint, notifying Respondents of the e-mail addresses served and the deadline for a Response, was transmitted to Respondents via post and fax, to all entities and persons listed on Respondents’ registrations as technical, administrative and billing contacts.
Having received no responses from Respondents, the Forum transmitted to the parties a Notification of Respondent Default.
On March 10, 2020, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Alan L. Limbury 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[s]" 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 Respondents.
Complainant requests that the domain names be transferred from Respondents to Complainant.
PRELIMINARY ISSUE – MULTIPLE RESPONDENTS
While the Panel is satisfied that the domain names <archersysterms.com>, <archerxystems.com> and <archerystems.com> are effectively under the control of the same person or entity, it is not satisfied that this is so in relation to the domain name <archersytems.com>, which is currently under the control of GoDaddy.com, LLC. Accordingly, pursuant to the Forum's Supplemental Rule 4(c)(iv) the <archersytems.com> domain name will not be subject to further consideration by the Panel and the Complaint in relation to that domain name will be dismissed.
Henceforth this decision will refer to Roderick Gaines / Archer Systems Secondary Domains as Respondent and will refer to the <archersysterms.com>, <archersytems.com> and <archerxystems.com> domain names as the Domain Names.
A. Complainant
Complainant provides settlement planning services to clients across the United States. It has common law rights in the ARCHER SYSTEMS trademark through its use of that mark in commerce. The Domain Names are confusingly similar to Complainant’s ARCHER SYSTEMS mark.
Respondent has no rights or legitimate interests in the Domain Names. Respondent is not licensed or authorized to use Complainant’s ARCHER SYSTEMS mark. Respondent is not using the Domain Names in connection with any bona fide offering of goods or services or legitimate noncommercial or fair use.
Respondent registered and uses the Domain Names in bad faith as Respondent attempts to impersonate Complainant in order to conduct a phishing scheme. Respondent also had actual knowledge of Complainant’s rights in the ARCHER SYSTEMS mark due to the similarity between the mark and the Domain Names.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has established all the elements entitling it to relief in relation to the Domain Names.
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 Domain Names are confusingly similar to Complainant’s ARCHER SYSTEMS mark since each incorporates the mark in its entirety and changes one letter in the “SYSTEMS” portion of the mark, adding the inconsequential “.com” generic top-level domain (“gTLD”), which may be ignored.
Complainant has established this element.
Paragraph 4(c) of the Policy sets out three illustrative circumstances as examples which, if established by Respondent, shall demonstrate rights to or legitimate interests in the domain names for purposes of paragraph 4(a)(ii) of the Policy, i.e.
(i) before any notice to Respondent of the dispute, the use by Respondent of, or demonstrable preparations to use, the domain names or names corresponding to the domain names in connection with a bona fide offering of goods or services; or
(ii) Respondent (as an individual, business or other organization) has been commonly known by the domain names, even if Respondent has acquired no trademark or service mark rights; or
(iii) Respondent is making a legitimate noncommercial or fair use of the domain names, without intent for commercial gain to misleadingly divert customers or to tarnish the trademark or service mark at issue.
Complainant submits that Respondent lacks rights and legitimate interests in the domain names because Respondent engages in typosquatting. See Webster Financial Corporation and Webster Bank, National Assocation v. Pham Dinh Nhut, FA1502001605819 (Forum Apr. 17, 2015) (“Respondent’s acts of typosquatting provide additional evidence that respondent lacks rights and legitimate interests in the disputed domain names pursuant to Policy ¶ 4(a)(ii).”).
Each of the Domain Names involves a misspelling of Complainant’s well-known mark. <archersysterms.com> was registered on September 3, 2019. Both <archerxystems.com> and <archerystems.com> were registered on September 18, 2019. The Domain Names do not resolve to active web pages. These circumstances, coupled with Complainant’s assertions, are sufficient to constitute a prima facie showing of absence of rights or legitimate interests in respect of the Domain Names on the part of Respondent. The evidentiary burden therefore shifts to Respondent to show that it does have rights or legitimate interests in the Domain Names. See 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”).
Respondent has made no attempt to do so.
In the circumstances of this case, the Panel finds that Respondent has no rights or legitimate interests in respect of the Domain Names.
Complainant has established this element.
The Panel can conceive of no bona fide basis on which Respondent could have registered the Domain Names. The Panel is satisfied, from the typosquatted nature of the Domain Names, each being a slight misspelling of Complainant’s well-known trademark and registered within two weeks of each other, two of them on the same day, that Respondent must have had knowledge of Complainant and its well-known mark when registering the Domain Names and must have known that any use would amount to impersonation of Complainant.
Further, the Panel is satisfied that Respondent is holding the Domain Names, as alleged by Complainant and not denied by Respondent, in order to carry out a phishing exercise by impersonating Complainant for commercial gain, as had happened to Complainant’s predecessor-in-interest.
See Coupang Corporation v. Song Hagyun, FA 1883977 (Forum Mar.19, 2020) (“We are persuaded by the evidence that the <coopangkorea.com> domain name is an instance of typo-squatting, i.e.: the deliberate misspelling of the mark of another in creating a domain name in order to take advantage of common spelling errors made by Internet users in entering into their web browsers the names of enterprises with which they wish to do business online) Typo-squatting, without more, is evidence of bad faith registration and use of a domain name. See, for example, Under Armour, Inc. v. JEFF RANDALL, FA1585022 (Forum November 18, 2014) (finding that a UDRP respondent’s <unerarmour.com> domain name constituted typo-squatting of a complainant’s UNDER ARMOUR mark, which stood as evidence of bad faith registration and use of that domain name under Policy ¶ 4(a)(iii)).”
For these reasons the Panel finds that Respondent registered and is using the Domain Names in bad faith under Policy ¶ 4(a)(iii).
Complainant has established this element.
In relation to the <archersytems.com> domain name the Complaint is dismissed because Repossessed by Go Daddy, the current holder of that domain name, is not under the control of Respondent.
In relation to the <archersysterms.com>, <archerxystems.com>, and <archerystems.com> domain names, 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 <archersysterms.com>, <archerxystems.com>, and <archerystems.com> domain names be TRANSFERRED from Respondent to Complainant.
Alan L. Limbury, Panelist
Dated: March 22, 2020
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