Mears Destination Services, Inc. and Mears Transportation Group, LLC v. Domain Administrator / Fundacion Privacy Services LTD
Claim Number: FA2210002015080
Complainant is Mears Destination Services, Inc. and Mears Transportation Group, LLC ("Complainant"), represented by Michael K. Dixon of Greenberg Traurig, Florida, USA. Respondent is Domain Administrator / Fundacion Privacy Services LTD ("Respondent"), Panama.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <mearstranportation.com>, registered with Media Elite Holdings Limited.
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.
David E. Sorkin as Panelist.
Complainant submitted a Complaint to Forum electronically on October 6, 2022; Forum received payment on October 6, 2022.
On October 7, 2022, Media Elite Holdings Limited confirmed by email to Forum that the <mearstranportation.com> domain name is registered with Media Elite Holdings Limited and that Respondent is the current registrant of the name. Media Elite Holdings Limited has verified that Respondent is bound by the Media Elite Holdings Limited 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 October 10, 2022, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 31, 2022 by which Respondent could file a Response to the Complaint, via email to all entities and persons listed on Respondent's registration as technical, administrative, and billing contacts, and to postmaster@mearstranportation.com. Also on October 10, 2022, the Written Notice of the Complaint, notifying Respondent of the email 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, Forum transmitted to the parties a Notification of Respondent Default.
On November 7, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed David E. Sorkin as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that 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, 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[i] has offered services under MEARS, MEARS TRANSPORTATION GROUP, and related marks since at least as early 1985. Complainant provides ground transportation services in the Central Florida area, operating a large fleet of passenger transportation vehicles. Complainant also provides resort concierge services at several convention resorts in Orlando, Florida. Complainant owns various United States trademark registrations for MEARS, MEARS TRANSPORTATION GROUP, and related marks; its corporate website can be accessed at <mearstransportation.com>.
Respondent is the registrant of the disputed domain name <mearstranportation.com>, which was registered in March 2005. Complainant characterizes the domain name as an instance of purposeful misspelling, or typosquatting. The domain name is being used for a parking page composed of links to services similar or identical to those offered by Complainant. Complainant states that Respondent is not commonly known by the domain name and is not licensed or otherwise authorized to use Complainant's mark.
Complainant contends on the above grounds that the disputed domain name <mearstranportation.com> is confusingly similar to its MEARS TRANSPORTATION GROUP mark; that Respondent lacks rights or legitimate interests in the disputed domain name; and that the disputed domain name was registered and is being used in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that the disputed domain name is confusingly similar to a mark in which Complainant has rights; that Respondent lacks rights or legitimate interests in respect of the disputed domain name; and that the disputed domain name was registered and is being used 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:
(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 Overview of WIPO Panel Views on Selected UDRP Questions, § 4.3 (3d ed. 2017), available at http://www.wipo.int/amc/en/domains/search/overview3.0/; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (dismissing complaint where complainant failed to "produce clear evidence to support its subjective allegations").
The disputed domain name <mearstranportation.com> corresponds to Complainant's registered MEARS TRANSPORTATION GROUP trademark, omitting a letter "S," the word "GROUP," and a space, and adding the ".com" top-level domain. These alterations do not substantially diminish the similarity between the domain name and Complainant's mark. See, e.g., DD IP Holder LLC v. Domain Administrator / Fundacion Privacy Services LTD, FA 1917909 (Forum Nov. 30, 2020) (finding <dunkindouts.com> confusingly similar to DUNKIN' DONUTS); The Boston Consulting Group, Inc v. Rodney Thomas, D2005-0259 (WIPO May 2, 2005) (finding <bostonconsults.com> confusingly similar to THE BOSTON CONSULTING GROUP). The Panel considers the disputed domain name to be confusingly similar to a mark in which Complainant has rights.
Under the Policy, the Complainant must first make a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain name, and then the burden shifts to the Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Productions, Inc. v. Entertainment Commentaries, FA 741828 (Forum Aug. 18, 2006).
The disputed domain name incorporates most of Complainant's registered mark without authorization, and its sole apparent use has been to display what the Panel infers to be pay-per-click links to competing services. Such use does not give rise to rights or legitimate interests. See, e.g., Transamerica Corp. v. Domain Admin / Domain Privacy Ltd, FA 1949722 (Forum June 30, 2021) (finding lack of rights or interests in similar circumstances).
Complainant has made a prima facie case that Respondent lacks rights and legitimate interests in the domain name, and Respondent has failed to come forward with any evidence of such rights or interests. Accordingly, the Panel finds that Complainant has sustained its burden of proving that Respondent lacks rights or legitimate interests in respect of the disputed domain name.
Finally, Complainant must show that the disputed domain name was registered and is being used in bad faith. Under paragraph 4(b)(iii) of the Policy, bad faith may be shown by evidence that Respondent registered the disputed domain name "primarily for the purpose of disrupting the business of a competitor." Under paragraph 4(b)(iv), bad faith may be shown by evidence that "by using the domain name, [Respondent] intentionally attempted to attract, for commercial gain, Internet users to [Respondent's] web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of [Respondent's] web site or location or of a product or service on [Respondent's] web site or location."
The disputed domain name is registered in the name of what the Panel infers to be a privacy registration service, likely in an effort to conceal the identity of the beneficial registrant. The domain name corresponds to a misspelling of the distinctive portion of Complainant's mark, and the only apparent use to which it has been put is to display pay-per-click links to services that compete with those offered by Complainant. Such circumstances are indicative of bad faith registration and use under the Policy. See, e.g., Transamerica Corp. v. Domain Admin / Domain Privacy Ltd, supra (finding bad faith registration and use in similar circumstances). The Panel so finds.
Having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <mearstranportation.com> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: November 8, 2022
[i] Complainant Mears Destination Services, Inc., and Complainant Mears Transportation Group LLC are affiliated companies; the Panel considers it appropriate to treat them as a single entity for purposes of this proceeding.
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