Micro Electronics, Inc. v. Fatih Yilmaz / shopify online store
Claim Number: FA2102001931089
Complainant is Micro Electronics, Inc. (“Complainant”), represented by David A. Einhorn of Scarinci Hollenbeck LLC, New York, USA. Respondent is Fatih Yilmaz / shopify online store (“Respondent”), New Jersey, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <microcenter.shop>, 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.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on February 5, 2021; the Forum received payment on February 5, 2021.
On February 8, 2021, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <microcenter.shop> 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 15, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 8, 2021 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@microcenter.shop. Also on February 15, 2021, 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 11, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Richard Hill 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 states that it is a nation-wide company, with an excess of a one billion dollars in sales, which is in the business of selling computers, computer software and networking products and services, electronic hardware, accessories and related services, such as computer repair, on line and in several brick and mortar locations, including those in California, Colorado, Georgia, Illinois, Kansas, Massachusetts, Maryland, Michigan, Minnesota, Missouri, New Jersey, New York, Ohio, Pennsylvania, Texas and Virginia under the MICRO CENTER trademark and trade name. In 2014, Complainant was ranked number 93 in the list of 100 hottest retailers in the United States, compiled by the National Retail Federation. In 2015, the industry trade journal Dealerscope ranked it as the 18th largest consumer electronics retailer in the United States and Canada. In 2016, Forbes magazine ranked it 195th among America's largest private companies, with a staff of 2,750. In October 2016, Complainant’s stores won first and second prizes in Intel's "Score with Intel Core" competition, and donated their prize money to local schools. Complainant has rights in the MICRO CENTER through its registration in the United States in 1989. The mark is well known.
Complainant alleges that the disputed domain name is identical to its MICRO CENTER mark, merely adding the “.shop” generic top-level domain (“gTLD) to the mark. Complainant cites UDRP precedents to support its position.
According to Complainant, Respondent lacks rights and legitimate interests in the disputed domain name as it is not commonly known by the disputed domain name and is neither an authorized user nor a licensee of the MICRO CENTER mark. Additionally, Respondent does not use the disputed domain name for any bona fide offering of goods or services, nor for any legitimate noncommercial or fair use. Instead, Respondent hosts a parking page which offers advertising links to goods which compete with Complainant’s business. Complainant cites UDRP precedents to support its position.
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith. Respondent hosts a parked website which hosts advertising links to goods which compete with Complainant’s business, demonstrating bad faith disruption and attraction to commercial gain. Additionally, Respondent registered the disputed domain name with actual knowledge of Complainant’s rights in the MICRO CENTER mark. Complainant cites UDRP precedents to support its position.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has rights in the mark MICRO CENTER dating back to at least 1989 and uses it to market computer products and services.
The disputed domain name was registered in 2020.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
Respondent is using the disputed domain names to resolve to a web site that displays advertising links for products and services that compete with those of Complainant.
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 disputed domain name is identical to Complainant’s MICRO CENTER mark, only differing by the addition of the “.shop” gTLD. Merely adding a gTLD to a recognized mark does not sufficiently distinguish a domain name from a mark under Policy ¶ 4(a)(i). See Bittrex, Inc. v. Privacy protection service - whoisproxy.ru, FA 1759828 (Forum Jan. 12, 2018) (“The Panel here finds that the <bittrex.market> domain name is identical to the BITTREX mark under Policy ¶4(a)(i).”). The Panel therefore finds that the disputed domain name is identical to Complainant’s mark under Policy ¶ 4(a)(i).
Complainant has not licensed or otherwise authorized Respondent to use its mark. Respondent is not commonly known by the disputed domain name: when no response is submitted, relevant WHOIS information may demonstrate that a Respondent is not commonly known by a disputed domain name under Policy ¶ 4(c)(ii). See Chevron Intellectual Property LLC v. Fred Wallace, FA1506001626022 (Forum July 27, 2015) (finding that the respondent was not commonly known by the <chevron-europe.com> domain name under Policy ¶ 4(c)(ii), as the WHOIS information named “Fred Wallace” as registrant of the disputed domain name). Here, the WHOIS information of record identifies the registrant as “Fatih Yilmaz / shopify online store”. The Panel therefore finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).
The disputed domain name resolves to a parked page which provides advertising links to goods which compete with Complainant’s business. Previous panels have held that such use of a disputed domain does not qualify as a bona fide offering of goods or services, nor a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii). See Provide Commerce, Inc. v. e on Craze, FA1506001626318 (Forum Aug. 11, 2015) (holding that the respondent was not making a bona fide offering of goods or services, or a legitimate noncommercial or fair use of the disputed domain name under Policy ¶¶ 4(c)(i) and 4(c)(iii) where the respondent was using the disputed domain name to host generic links to third-party websites, some of which directly competed with the complainant’s business). Thus, the Panel finds that Respondent fails to use the disputed domain name to make a bona fide offering of goods or services, or a legitimate noncommercial or fair use of the disputed domain name under Policy ¶¶ 4(c)(i) and 4(c)(iii). And the Panel finds that Respondent does not have rights or legitimate interests in the disputed domain name.
Respondent (who did not reply to Complainant’s contentions) has not presented any plausible explanation for its use of Complainant’s mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain name.
Indeed, as already noted, the resolving website displays advertising links to competing goods and services. This can evince bad faith attraction for commercial gain pursuant to Policy ¶ 4(b)(iv). See American Council on Education and GED Testing Service LLC v. Anthony Williams, FA1760954 (Forum Jan. 8, 2018) (“Respondent’s hosting of links to Complainant’s competitors demonstrates bad faith registration and use of the <geddiploma.org> domain name pursuant to Policy ¶ 4(b)(iv)”). Thus the Panel finds that Respondent registered and uses the disputed domain name in bad faith under Policy ¶ 4(b)(iv).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <microcenter.shop> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: March 11, 2021
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