Postmates Inc. v. Aaron Polos
Claim Number: FA2002001885464
Complainant is Postmates Inc. (“Complainant”), represented by Chelsea E. Carbone of Wilson Sonsini Goodrich & Rosati, California, USA. Respondent is Aaron Polos (“Respondent”), Tennessee, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <postmatehelp.online>, registered with GoDaddy.com, LLC.
The undersigned certifies that he has acted independently and impartially, and, to the best of his knowledge, has no conflict of interests in serving as Panelist in this proceeding.
Terry F. Peppard as Panelist.
Complainant submitted a Complaint to the Forum electronically on February 24, 2020; the Forum received payment on February 24, 2020.
On February 25, 2020, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <postmatehelp.online> 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 26, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 17, 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@postmatehelp.online. Also on February 26, 2020, 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 20, 2020, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Terry F. Peppard as sole Panelist in this proceeding.
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 a response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Operating under the POSTMATES mark, Complainant runs an on-demand delivery service facilitated by mobile apps available for iOS and Android as well as a hosted webpage.
Complainant holds a registration for the POSTMATES trademark and service mark, which is on file with the United States Patent and Trademark Office (“USPTO”) as Registry No. 4,548,033, registered June 10, 2014.
Respondent registered the domain name <postmatehelp.online> on January 17, 2020.
The domain name is confusingly similar to Complainant’s POSTMATES mark.
Respondent has not been known by the domain name.
Complainant has not licensed or otherwise authorized Respondent to use the POSTMATES mark in any way.
Respondent fails to make a bona fide offering of goods or services or a legitimate noncommercial or fair use of the domain name.
Instead, Respondent resolves the domain name to a scam website that purports to offer services similar to those marketed by Complainant.
Respondent has no rights to or legitimate interests in the domain name.
Respondent’s use of the domain name is intended to confuse Internet users into believing that Respondent is affiliated with Complainant.
Respondent also employs the domain name to attempt to gather Internet users’ sensitive personal information.
Respondent seeks to profit from this employment of the domain name.
Respondent knew of Complainant’s rights in the POSTMATES mark when it registered the domain name.
Respondent registered and uses the domain name in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
(1) the domain name registered by Respondent is confusingly similar to a trademark and service mark in which Complainant has rights; and
(2) Respondent has no rights to or legitimate interests in respect of the domain name; and
(3) the same domain name was registered and is being used by Respondent 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:
i. the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
ii. Respondent has no rights to or legitimate interests in respect of the domain name; and
iii. the domain name has been registered and is being used by Respondent in bad faith.
In view of Respondent's failure to submit a response, the Panel will, pursuant to paragraphs 5(f), 14(a) and 15(a) of the Rules, decide this proceeding on the basis of Complainant's undisputed representations, and, pursuant to paragraph 14(b) of the Rules, draw such inferences as it deems appropriate. The Panel is entitled to accept as true all reasonable claims and inferences set out in the Complaint unless the supporting evidence is manifestly contradictory. See, for example, Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Forum July 31, 2000) (finding that a respondent’s failure to respond allows all reasonable inferences of fact in the allegations of a UDRP complaint to be deemed true).
Complainant has rights in the POSTMATES trademark and service mark sufficient for purposes of Policy ¶ 4(a)(i) by reason of its registration of the mark with a national trademark authority, the USPTO. See, for example, Liberty Global Logistics, LLC v. damilola emmanuel / tovary services limited, FA 1738536 (Forum August 4, 2017):
Registration of a mark with the USPTO sufficiently establishes the required rights in the mark for purposes of the Policy.
Turning to the central question posed by Policy ¶ 4(a)(i), we conclude from a review of the record that Respondent’s <postmatehelp.online> domain name is confusingly similar to Complainant’s POSTMATES trademark and service mark. The domain name incorporates the mark in its entirety, merely adding the generic term “help” and the generic Top Level Domain (“gTLD”) “.online,” which together describe an aspect of Complainant’s business. These alterations of the mark, made in forming the domain name, do not save it from the realm of confusing similarity under the standards of the Policy.
See, for example, Kurk Wasserman Consulting, L.L.C. v. ming li, FA 1782613 (Forum May 29, 2018):
Respondent’s … domain name is confusingly similar to the … mark as [, in the domain name,] Respondent merely adds the descriptive term “serum” and the “.us” ccTLD to the mark.
See also Allianz of Am. Corp. v. Bond, FA 680624 (Forum June 2, 2006) (finding that adding to a mark the generic term “finance,” which described a UDRP complainant’s financial services business, as well as a gTLD, did not sufficiently distinguish a respondent’s domain name from that complainant’s mark under Policy ¶ 4(a)(i)). As to the latter point, this is because every domain name requires a gTLD or other TLD.
Under Policy ¶ 4(a)(ii), Complainant must make out a prima facie showing that Respondent lacks rights to and legitimate interests in the contested <postmatehelp.online> domain name, whereupon the burden shifts to Respondent to show that it does have such rights or interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum August 18, 2006) (finding that a UDRP complainant must make a prima facie case that a respondent lacks rights to or legitimate interests in a disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to that respondent to show that it does have such rights or interests). See also AOL LLC v. Gerberg, FA 780200 (Forum September 25, 2006):
Complainant must … make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, … the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.
Complainant has made a sufficient prima facie showing under this head of the Policy. Respondent’s failure to respond to the Complaint therefore permits us to infer that Respondent does not have rights to or legitimate interests in the disputed domain name. See Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO December 21, 2000) (finding that a respondent’s failure to respond to a UDRP complaint allows a presumption that a complainant’s allegations are true unless they are clearly contradicted by the evidence). Nonetheless, we will examine the record before us, in light of the considerations set out in Policy ¶ 4(c)(i)-(iii), to determine whether there is in it any basis for concluding that Respondent has rights to or legitimate interests in the contested domain name that are cognizable under the Policy.
We begin by noting that Complainant contends, and Respondent does not deny, that Respondent has not been commonly known by the challenged <postmatehelp.online> domain name, and that Complainant has not licensed or otherwise authorized Respondent to use the POSTMATES trademark and service mark in any way. Moreover, the pertinent WHOIS information identifies the registrant of the domain name only as “Aaron Polos,” which does not resemble the domain name. On this record, we conclude that Respondent has not been commonly known by the disputed domain name so as to have acquired rights to or legitimate interests in it within the ambit of Policy ¶ 4(c)(ii). See, for example, Google LLC v. Bhawana Chandel / Admission Virus, FA 1799694 (Forum September 4, 2018) (concluding that a respondent was not commonly known by a disputed domain name incorporating the GOOGLE mark where the relevant WHOIS record identified that respondent as “Bhawana Chandel,” and nothing in the record showed that that respondent was authorized to use a UDRP Complainant’s mark in any manner); see also Navistar International Corporation v. N Rahmany, FA 620789 (Forum June 8, 2015) (finding, under Policy ¶ 4(c)(ii), that a respondent was not commonly known by a disputed domain name where a UDRP complainant had not authorized that respondent to incorporate its mark in a domain name).
We next observe that Complainant also asserts, without objection from Respondent, that the <postmatehelp.online> domain name resolves to a website that, for profit, purports to offer services similar to those marketed by Complainant. This employment is neither a bona fide offering of goods or services by means of the domain name under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use of it under Policy ¶ 4(c)(iii) such as would confirm in Respondent rights to or legitimate interests in the domain name as provided in those subsections of the Policy. See, for example, Ripple Labs Inc. v. Jessie McKoy / Ripple Reserve Fund, FA 1790949 (Forum July 9, 2018) (finding that a respondent did not use a domain name to make a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii) where the website resolving from that domain name sought commercial advantage by featuring a UDRP complainant’s mark and other indicia of complainant’s business).
The Panel therefore finds that Complainant has satisfied the proof requirements of Policy ¶ 4(a)(ii).
It appears from the evidence that Respondent’s <postmatehelp.online> domain name, which we find to be confusingly similar to Complainant’s POSTMATES trademark and service mark, is an attempt by Respondent to profit from the confusion thus caused among Internet users as to the possibility of Complainant’s affiliation with the domain name. Under Policy ¶ 4(b)(iv), this stands as proof of Respondent’s bad faith in registering and using the domain name. See, for example, BBY Solutions, Inc. v. Grant Ritzwoller, FA 1703389 (Forum December 21, 2016) (finding bad faith registration and use where a domain name was obviously derived from a UDRP complainant’s mark, thus creating a likelihood of confusion among Internet users for the benefit of its respondent-registrant).
We are also convinced by the evidence that Respondent employs the <postmatehelp.online> domain name to attempt fraudulently to obtain Internet users’ sensitive personal information, and to profit it, in an illicit process commonly called “phishing.” This too demonstrates Respondent’s bad faith in registering and using the domain name. See, for example, United States Postal Service v. kyle javier, FA 1787265 (Forum June 12, 2018):
Use of a domain name to phish for Internet users’ personal information is evidence of bad faith [registration and use of that domain name].
Finally, under this head of the Policy, it is plain from the record that Respondent knew of Complainant and its rights in the POSTMATES mark when it registered the <postmatehelp.online> domain name. This further illustrates Respondent’s bad faith in registering it. See, for example, Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum February 6, 2014):
The Panel … here finds actual knowledge [by a respondent of the mark of another when a confusingly similar domain name was registered, and thus that respondent’s bad faith in registering it] through the name used for the domain and the use made of it.
The Panel thus finds that Complainant has met its obligations of proof under Policy ¶ 4(a)(iii).
Complainant having established all three elements required to be proven under the ICANN Policy, the Panel concludes that the relief requested must be, and it is hereby, GRANTED.
Accordingly, it is Ordered that the <postmatehelp.online> domain name be TRANSFERRED forthwith from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: March 23, 2020
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