AvalonBay Communities, Inc. v. Kamal Furmi
Claim Number: FA2306002048385
Complainant is AvalonBay Communities, Inc. (“Complainant”), represented by Candice Kim of Greenberg Traurig, LLP, California, USA. Respondent is Kamal Furmi (“Respondent”), Bangladesh.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <avalon-access.org>, registered with Porkbun 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.
Paul M. DeCicco, as Panelist.
Complainant submitted a Complaint to Forum electronically on June 9, 2023; Forum received payment on June 9, 2023.
On June 9, 2023, Porkbun LLC confirmed by e-mail to Forum that the <avalon-access.org> domain name is registered with Porkbun LLC and that Respondent is the current registrant of the name. Porkbun LLC has verified that Respondent is bound by the Porkbun 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 June 13, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 3, 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@avalon-access.org. Also on June 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 July 11, 2023, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Paul M. DeCicco 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 contends as follows:
Complainant, AvalonBay Communities, Inc. offers a variety of goods and services in the real estate management services field including the provision of multi-family housing and management services.
Complainant asserts rights to the AVALON mark based upon registration with the United States Patent and Trademark Office (“USPTO”).
Respondent’s <avalon-access.org> domain name is confusingly similar to Complainant’s mark as it contains the AVALON mark in its entirety, merely adding the descriptive term “access”, a hyphen, and the generic top-level domain (“gTLD”) “.org” to form the disputed domain name.
Respondent does not have rights or legitimate interests in the <avalon-access.org> domain name. Respondent is not licensed or authorized to use the AVALON mark and is not commonly known by the at-issue domain name. Respondent does not use the at-issue domain name for any bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent uses the domain name to pass off as Complainant.
Respondent registered and uses the <avalon-access.org> domain name in bad faith. Respondent registered and uses the at-issue domain name to pass off as Complainant. Additionally, Respondent’s use of a privacy service in registering the at-issue domain name shows bad faith registration and use. Finally, Respondent registered and uses the at-issue domain name with constructive and/or actual knowledge of Complainant’s rights in the AVALON mark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has trademark rights in the AVALON mark.
Respondent is not affiliated with Complainant and had not been authorized to use Complainant’s trademark in any capacity.
Respondent registered the at‑issue domain name after Complainant acquired rights in the AVALON trademark.
Respondent uses the at-issue domain name to pass itself off as Complainant by posing as an equity real estate investment trust and deceptively requests sensitive information from site visitors, and further directs visitors to Complainant’s <avalonaccess.com> website, presumably for pecuniary gain.
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 at-issue domain name is confusingly similar to a trademark in which Complainant has rights.
Complainant’s USPTO trademark registration for AVALON demonstrates Complainant’s rights in a mark under Policy ¶ 4(a)(i). See DIRECTV, LLC v. The Pearline Group, FA 1818749 (Forum Dec. 30, 2018) (“Complainant’s ownership of a USPTO registration for DIRECTV demonstrate its rights in such mark for the purposes of Policy ¶ 4(a)(i).”).
Respondent’s <avalon-access.org> domain name contains Complainant’s AVALON trademark followed by an inconsequential hyphen and the suggestive term “access” with all followed by the “.org” top-level domain name. The differences between Complainant’s trademark and Respondent’s at-issue domain name fail to distinguish the domain name from Complainant’s mark under Policy ¶ 4(a)(i). Therefore, the Panel finds that Respondent’s <avalon-access.org> domain name is confusingly similar to Complainant’s AVALON trademark. See Ant Small and Micro Financial Services Group Co., Ltd. v. Ant Fin, FA 1759326 (Forum Jan. 2, 2018) (“Respondent’s <antfinancial-investorrelations.com> Domain Name is confusingly similar to Complainant’s ANT FINANCIAL mark. It incorporates the mark entirely. It adds a hyphen, the descriptive terms “investor relations,” and the “.com” gTLD, but these additions are insufficient to distinguish the Domain name from complainant’s mark for the purposes of Policy ¶ 4(a)(i).”).
Rights or Legitimate Interests
Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006). Since Respondent failed to respond, Complainant’s prima facie showing acts conclusively.
Respondent lacks both rights and legitimate interests in respect of the <avalon-access.org> domain name. Respondent is not authorized to use Complainant’s trademark in any capacity and, as discussed below, there are no Policy ¶ 4(c) circumstances from which the Panel might find that Respondent has rights or interests in respect of the at‑issue domain name. See Charter Communications Holding Company, LLC v. Taha Shaikh / Tskdesigners, FA 1814475 (Forum Nov. 25, 2018) (finding no rights or legitimate interests in <spectrumfeature.com> because complainant never gave respondent permission to use the mark in any manner and “Panels may use these assertions as evidence that no rights or legitimate interests exist in a disputed domain name.”).
The WHOIS information for the at-issue domain name shows that the domain name’s registrant is “Kamal Furmi” and the record before the Panel contains no evidence that otherwise tends to show that Respondent is commonly known by the <avalon-access.org> domain name. The Panel therefore concludes that Respondent is not commonly known by the at-issue domain name for the purposes of Policy ¶ 4(c)(ii). See Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Forum July 17, 2006) (concluding that the respondent was not commonly known by the <coppertown.com> domain name where there was no evidence in the record, including the WHOIS information, suggesting that the respondent was commonly known by the disputed domain name).
Respondent uses the <avalon-access.org> domain name to address a website that that displays Complainant’s trademark and logo and otherwise mimics Complainant’s genuine website. The website requests sensitive information from website visitors and directs such visitors to Complainant’s genuine website. Respondent’s use of <avalon-access.org> in this manner is neither a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor a legitimate non-commercial or fair use under Policy ¶ 4(c)(iii). See Mortgage Research Center LLC v. Miranda, FA 993017 (Forum July 9, 2007) (“Because [the] respondent in this case is also attempting to pass itself off as [the] complainant, presumably for financial gain, the Panel finds the respondent is not using the <mortgageresearchcenter.org> domain name for 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 Crow v. LOVEARTH.net, FA 203208 (Forum Nov. 28, 2003) (“It is neither a bona fide offerings [sic] of goods or services, nor an example of a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) & (iii) when the holder of a domain name, confusingly similar to a registered mark, attempts to profit by passing itself off as Complainant . . . .”).
Given the forgoing, Complainant satisfies its initial burden and demonstrates Respondent’s lack of rights and lack of legitimate interests in respect of the at-issue domain name pursuant to Policy ¶ 4(a)(ii).
As discussed below without being exhaustive, bad faith circumstances are present which allow the Panel to conclude that Respondent acted in bad faith pursuant to paragraph 4(a)(iii) of the Policy.
First, Respondent uses <avalon-access.org> to deceive internet users into believing that the domain name and its website are sponsored by or associated with Complainant, The website can extract sensitive information from website visitors and also can direct visitors to Complainant’s genuine website. Respondent’s use of the confusingly similar domain name to attract internet users and capitalize on their confusion via the misappropriation of sensitive material, pay-per-click fees, or otherwise shows Respondent’s bad faith registration and use of <avalon-access.org> under Policy ¶ 4(b)(iii) and Policy ¶ 4(b)(iv). See Monsanto Co. v. Decepticons, FA 101536 (Forum Dec. 18, 2001) (finding that the respondent's use of <monsantos.com> to misrepresent itself as the complainant and to provide misleading information to the public supported a finding of bad faith); see also DaimlerChrysler Corp. v. Bargman, D2000-0222 (WIPO May 29, 2000) (finding that the respondent’s use of the title “Dodgeviper.com Official Home Page” gave consumers the impression that the complainant endorsed and sponsored the respondent’s website).
Moreover, Respondent had actual knowledge of Complainant’s rights in the AVALON mark when Respondent registered <avalon-access.org> as a domain name. Respondent’s actual knowledge is evident given the mark’s notoriety and given Respondent’s use of the domain name to address a website that poses as Complainant’s genuine website. Respondent’s registration of <avalon-access.org> with knowledge of Complainant’s trademark rights in AVALON further shows Respondent’s bad faith registration and use pursuant to Policy ¶ 4(a)(iii). See Minicards Vennootschap Onder FIrma Amsterdam v. Moscow Studios, FA 1031703 (Forum Sept. 5, 2007) (holding that respondent registered a domain name in bad faith under Policy ¶ 4(a)(iii) after concluding that respondent had actual knowledge of Complainant's mark when registering the disputed domain name); see also, Univision Comm'cns Inc. v. Norte, FA 1000079 (Forum Aug. 16, 2007) (rejecting the respondent's contention that it did not register the disputed domain name in bad faith since the panel found that the respondent had knowledge of the complainant's rights in the UNIVISION mark when registering the disputed domain name).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <avalon-access.org> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: July 12, 2023
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page