Micro Electronics, Inc. v. Carolina Rodrigues / Fundacion Comercio Electronico
Claim Number: FA2303002035946
Complainant is Micro Electronics, Inc. ("Complainant"), United States, represented by Joseph M. Manak of Scarinci Hollenbeck LLC, United States. Respondent is Carolina Rodrigues / Fundacion Comercio Electronico ("Respondent"), Panama.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <microcenterr.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.
David E. Sorkin as Panelist.
Complainant submitted a Complaint to Forum electronically on March 15, 2023; Forum received payment on March 15, 2023.
On March 16, 2023, GoDaddy.com, LLC confirmed by email to Forum that the <microcenterr.com> 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 March 20, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 10, 2023 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@microcenterr.com. Also on March 20, 2023, 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 April 16, 2023, 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 is a nationwide seller of computers and related products and services online and in 25 brick and mortar locations across the United States, with annual sales exceeding $1 billion. Complainant uses the MICRO CENTER mark in connection with its products and services, and does business online using the domain name <microcenter.com>. Complainant owns longstanding United States trademark registrations for MICRO CENTER in standard character form.
The disputed domain name <microcenterr.com> was registered in November 2018. The name is registered in the name of a privacy registration service on behalf of Respondent. Complainant characterizes Respondent's registration of a misspelled version of Complainant's mark and domain name as an instance of typosquatting, and notes that a similar domain name registration by Respondent was the subject of a previous proceeding under the Policy. See Micro Electronics, Inc. v. Carolina Rodrigues / Fundacion Comercio Electronico, FA 1908882 (Forum Sept. 21, 2020) (ordering transfer of <microcennter.com>). The disputed domain name redirects to various other websites, some of which offer for sale products and services that compete with those sold by Complainant, and one that triggers a security warning, likely because it attempts to install malware on the user's computer. In addition, a statement on the registrar's website indicates that Respondent is offering to sell the domain name for $1,319. Complainant states that Respondent is not commonly known by the domain name, has no legitimate connection to Complainant, and is not authorized to use Complainant's mark.
Complainant contends on the above grounds that the disputed domain name <microcenterr.com> is confusingly similar to its MICRO CENTER 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 <microcenterr.com> incorporates Complainant's registered MICRO CENTER trademark, omitting the space, adding an additional letter "R" at the end, and appending the ".com" top-level domain. These alterations do not substantially diminish the similarity between the domain name and Complainant's mark. See, e.g., Micro Electronics, Inc. v. Milen Radumilo, FA 2033522 (Forum Apr. 4, 2023) (finding <microcoenter.com> confusingly similar to MICRO CENTER); Micro Electronics, Inc. v. Zhichao Yang, FA 2024806 (Forum Jan. 25, 2023) (finding <mmicrocenter.com> confusingly similar to MICRO CENTER); Micro Electronics, Inc. v. Zhang Wei, FA 2015197 (Forum Nov. 8, 2022) (finding <microcnter.com> confusingly similar to MICRO CENTER); Micro Electronics, Inc. v. Carolina Rodrigues / Fundacion Comercio Electronico, FA 1928372 (Forum Feb. 12, 2021) (finding <microcenterpc.com> confusingly similar to MICRO CENTER); Micro Electronics, Inc. v. Carolina Rodrigues / Fundacion Comercio Electronico, FA 1908882, supra (finding <microcennter.com> confusingly similar to MICRO CENTER). 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 Complainant's registered mark without authorization. It is being used to promote competing and unrelated goods and to disseminate malware. Such use does not give rise to rights or legitimate interests under the Policy. See, e.g., Micro Electronics, Inc. v. Milen Radumilo, supra (finding lack of rights or interests in similar circumstances); Micro Electronics, Inc. v. Zhichao Yang, supra (same); Micro Electronics, Inc. v. Zhang Wei, supra (same); Micro Electronics, Inc. v. Carolina Rodrigues / Fundacion Comercio Electronico, FA 1928372, supra (same); Micro Electronics, Inc. v. Carolina Rodrigues / Fundacion Comercio Electronico, FA 1908882, supra (same).
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)(i) of the Policy, bad faith may be shown by evidence that a domain name was acquired "primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of [Respondent's] documented out-of-pocket costs directly related to the domain name." Under paragraph 4(b)(iii), 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."
Respondent used a privacy registration service to register a domain name corresponding to Complainant's mark and domain name but for the addition of one letter, in an obvious instance of typosquatting; is using the domain name to promote competing and unrelated goods and to disseminate malware; and is offering the domain name for sale at what the Panel infers to be a substantial premium over Complainant's out-of-pocket costs. Such circumstances are indicative of bad faith registration and use under the Policy. See, e.g., Micro Electronics, Inc. v. Milen Radumilo, supra (finding bad faith registration and use in similar circumstances); Micro Electronics, Inc. v. Zhichao Yang, supra (same); Micro Electronics, Inc. v. Zhang Wei, supra (same); Micro Electronics, Inc. v. Carolina Rodrigues / Fundacion Comercio Electronico, FA 1928372, supra (same); Micro Electronics, Inc. v. Carolina Rodrigues / Fundacion Comercio Electronico, FA 1908882, supra (same). In addition, the Panel notes that Respondent has targeted Complainant and its mark with similar conduct on at least two previous occasions. See Micro Electronics, Inc. v. Carolina Rodrigues / Fundacion Comercio Electronico, FA 1928372, supra (ordering transfer of <microcenterpc.com>); Micro Electronics, Inc. v. Carolina Rodrigues / Fundacion Comercio Electronico, FA 1908882, supra (ordering transfer of <microcennter.com>). The Panel finds that the disputed domain name was registered and is being used in bad faith.
Having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <microcenterr.com> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: April 16, 2023
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