Yahoo Inc. v. ahmed miloudi / KHALIL89
Claim Number: FA2302002031340
Complainant is Yahoo Inc. (“Complainant”), represented by Griffin Barnett of Perkins Coie LLP, District of Columbia. Respondent is ahmed miloudi / KHALIL89 (“Respondent”), TN.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <engadget1.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.
Richard Hill as Panelist.
Complainant submitted a Complaint to Forum electronically on February 10, 2023; Forum received payment on February 10, 2023.
On February 13, 2023, GoDaddy.com, LLC confirmed by e-mail to Forum that the <engadget1.com> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the names. 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 13, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 6, 2023 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@engadget1.com. Also on February 13, 2023, 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, Forum transmitted to the parties a Notification of Respondent Default.
On March 11, 2023, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Richard Hill 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 states that it is a well-known Internet and online content services company, and the owner of the ENGADGET technology blog network, which was founded in 2004. The ENGADGET blogs provide daily coverage relating to consumer electronics and other technology products. ENGADGET reaches over 20 million readers per month, and its social media accounts have millions of followers, including 2.4 million on Twitter, 1.65 million on Facebook, 1.34 million on YouTube, and 365,000 on Instagram. Its website received nearly 13 million visits in August 2022 alone, and its site is ranked 84th most visited in the U.S. in the Computers Electronics and Technology category according to SimilarWeb. ENGADGET is the official online news source for CES, a trade show for consumer electronics held each year in Las Vegas in January. In addition, in 2020, [x]cube LABS ranked ENGADGET in its top 10 tech news websites to follow, in 2021 ENGADGET was ranked as one of the 15 expert-recommended resources for keeping up with the latest tech news by Forbes, and as of September 2022, ENGADGET ranks number 16 on the list of 20 best tech websites and blogs by Grafdom. Complainant has rights in the ENGADGET mark through its registration of the mark in the United States in 2007.
Complainant alleges that the disputed domain name is virtually identical and confusingly similar to its ENGADGET mark because it incorporates the mark in its entirety and merely adds the numeral “1” and the “.com” generic top-level domain (“gTLD”).
According to Complainant, Respondent has no legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name and Complainant has not authorized or licensed to Respondent any rights in the ENGADGET mark. Respondent does not use the disputed domain name for a bona fide offering of goods or services or a legitimate noncommercial or fair use. Instead, the resolving website directly competes with Complainant’s tech blog websites. Respondent engages in typosquatting.
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith. The disputed domain name resolves to a page offering competing goods and services. Respondent registered the disputed domain name with actual knowledge of Complainant’s rights in the ENGADGET mark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns the mark ENGADGET and uses it to provide a technology blog.
Complainant’s rights in its mark date back to 2007.
The disputed domain name was registered in 2022.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
The resolving website offers 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 incorporates Complainant’s ENGADGET mark in its entirety and merely adds the numeral “1” and the “.com” generic top-level domain (“gTLD”). The addition of a number and gTLD fails sufficiently to distinguish a domain name from a mark per Policy ¶ 4(a)(i). See Bloomberg Finance L.P. v. network admin, FA 1622138 (Forum July 11, 2015) (“The addition, deletion, and switching of . . . numbers in domain names do not remove Respondent’s domain names from the realm of confusing similarity in relation to Complainant’s BLOOMBERG mark pursuant to Policy ¶ 4(a)(i).”). Therefore the Panel finds that the disputed domain name is confusingly similar to Complainant’s mark per Policy ¶ 4(a)(i).
Complainant has not licensed or otherwise authorized Respondent to use its ENGADGET mark. Respondent is not commonly known by the disputed domain name: under Policy ¶ 4(c)(ii), WHOIS information may be used to determine whether a respondent is commonly known by the disputed domain name. See Amazon Technologies, Inc. v. LY Ta, FA 1789106 (Forum June 21, 2018) (concluding a respondent has no rights or legitimate interests in a disputed domain name where the complainant asserted it did not authorize the respondent to use the mark, and the relevant WHOIS information indicated the respondent is not commonly known by the domain name). Here, the WHOIS information for the disputed domain name lists the registrant as “ahmed miloudi / KHALIL89”. Therefore the Panel finds that Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii).
The resolving website offers services that compete with those of Complainant. Where the respondent uses a disputed domain name to redirect users to another site offering competing goods or services, the Panel may find the respondent fails to make a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii). See Yahoo Inc. v. Micael Celestino, FA2208002010209 (Forum Oct. 4, 2022) (“Complainant provides evidence showing that Respondent provides technology-related news including product reviews, resources, buying guides, informative videos, tips, and tutorials, all of which overlap with Complainant’s products and services…. Use of a confusingly similar domain name 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).”); see also Summit Group, LLC v. LSO, Ltd., FA 758981 (Forum Sept. 14, 2006) (finding that the respondent’s use of the complainant’s LIFESTYLE LOUNGE mark to redirect Internet users to respondent’s own website for commercial gain does not constitute either 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)). Therefore the Panel finds that Respondent fails to use the disputed domain name to make a bona fide offering of goods or services or legitimate noncommercial or fair use under Policy ¶ 4(c)(i) or (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 offers services that compete with those of Complainant. Use of a disputed domain name to offer competing goods or services can be evidence of bad faith disruption of a complainant’s business under Policy ¶ 4(b)(iii) and an attempt to attract users for commercial gain under Policy ¶ 4(b)(iv). See LoanDepot.com, LLC v. Kaolee (Kay) Vang-Thao, FA1762308 (Forum January 9, 2018) (Finding that Respondent’s use of the disputed domain name to offer competing loan services disrupts Complainant’s business under Policy ¶ 4(b)(iii)); see also AT&T Corp. v. RealTime Internet.com Inc., D2001-1487 (WIPO May 1, 2002) (“[U]se of domain names to sell Complainant’s goods and services without Complainant's authority . . . is bad faith use of a confusingly similar domain name.”); see also Am. Univ. v. Cook, FA 208629 (Forum Dec. 22, 2003) (“Registration and use of a domain name that incorporates another's mark with the intent to deceive Internet users in regard to the source or affiliation of the domain name is evidence of bad faith.”). Therefore the Panel finds that Respondent registered and uses the disputed domain name in bad faith per Policy ¶ 4(b)(iii) and/or (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 <engadget1.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: March 11, 2023
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