DECISION

 

Generac Power Systems, Inc. v. Carolina Rodrigues / Fundacion Comercio Electronico

Claim Number: FA2309002061980

 

PARTIES

Complainant is Generac Power Systems, Inc. ("Complainant"), represented by William Schultz of Merchant & Gould, P.C., Minnesota, USA. Respondent is Carolina Rodrigues / Fundacion Comercio Electronico ("Respondent"), Panama.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <genmerac.com>, registered with GoDaddy.com, LLC.

 

PANEL

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.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to Forum electronically on September 15, 2023; Forum received payment on September 15, 2023.

 

On September 18, 2023, GoDaddy.com, LLC confirmed by email to Forum that the <genmerac.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 September 19, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 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@genmerac.com. Also on September 19, 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 October 11, 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.

 

RELIEF SOUGHT

Complainant requests that the domain name be transferred from Respondent to Complainant.

 

PARTIES' CONTENTIONS

A. Complainant

Complainant uses GENERAC and related marks in connection with a variety of communications products and services, and has used the mark in this manner since at least as early as 1959. Complainant owns longstanding United States trademark registrations for GENERAC in standard character and stylized form.

 

The disputed domain name <genmerac.com> was registered in September 2023. The name is registered in the name of a privacy registration service on behalf of Respondent. The domain name resolves to a parked web page composed of pay-per-click links. Complainant alleges that Respondent is a serial cybersquatter who has engaged in a pattern of bad faith domain name registrations. Complainant states that Respondent is not commonly known by the domain name and is not authorized or licensed to use Complainant's mark.

 

Complainant contends on the above grounds that the disputed domain name <genmerac.com> is confusingly similar to its GENERAC 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.

 

FINDINGS

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.

 

DISCUSSION

Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted and 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").

 

Identical and/or Confusingly Similar

The disputed domain name <genmerac.com> incorporates Complainant's registered GENERAC trademark, inserting a letter "M" 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., Generac Power Systems, Inc. v. Matias Prieto, FA 2048017 (Forum July 16, 2023) (finding <gerenac.com> confusingly similar to GENERAC); Tommy Bahama Group, Inc. v. Registration Private, Domains by Proxy, LLC / Carolina Rodrigues, Fundacion Comercio Electronico, D2019-0198 (WIPO Apr. 3, 2019) (finding <tommmybahama.com> confusingly similar to TOMMY BAHAMA). The Panel considers the disputed domain name to be confusingly similar to a mark in which Complainant has rights.

 

Rights or Legitimate Interests

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, and its sole apparent use has been to display a parked page composed of pay-per-click links. Such use does not give rise to rights or legitimate interests under the Policy. See, e.g., Securian Financial Group, Inc. v. Carolina Rodrigues / Fundacion Comercio Electronico, FA 1991732 (Forum May 17, 2022) (finding lack of rights or interests in similar circumstances); Webster Financial Corp. v. Carolina Rodrigues / Fundacion Comercio Electronico, FA 1929755 (Forum Feb. 22, 2021) (same); Tommy John, Inc. v. Carolina Rodrigues / Fundacion Comercio Electronico, FA 1880644 (Forum Feb. 25, 2020) (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.

 

Registration and Use in Bad Faith

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."

 

Respondent used a privacy registration service to register a domain name corresponding to a misspelling of Complainant's registered mark, in what the Panel considers to be an instance of typosquatting, and is using the domain name for a parked page composed of pay-per-click links. Such circumstances are indicative of bad faith registration and use under the Policy. See, e.g., Securian Financial Group, Inc. v. Carolina Rodrigues / Fundacion Comercio Electronico, supra (finding bad faith registration and use in similar circumstances); Webster Financial Corp. v. Carolina Rodrigues / Fundacion Comercio Electronico, supra (same); Tommy John, Inc. v. Carolina Rodrigues / Fundacion Comercio Electronico, supra (same). The Panel is also mindful of Respondent's extensive history of similar conduct. See, e.g., Rocket Mortgage, LLC v. Carolina Rodrigues / Fundacion Comercio Electronico, FA 1989376 (Forum May 2, 2022) (noting "hundreds of UDRP decisions" adverse to Respondent). The Panel finds that the disputed domain name was registered and is being used in bad faith.

 

DECISION

Having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.

 

Accordingly, it is Ordered that the <genmerac.com> domain name be TRANSFERRED from Respondent to Complainant.

 

 

 

David E. Sorkin, Panelist

Dated: October 12, 2023