WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Appliancepartspros.com Inc. v. Moniker Privacy Services/ Registrant 3652916
Case No. D2011-1137
1. The Parties
Complainant is Appliancepartspros.com Inc., of Encino, California, United States of America, represented by Stowel, Zeilenga, Ruth, Vaughn & Treiger LLP, United States of America.
The Respondent is Moniker Privacy Services, of Pompano Beach, Florida, United States of America; Registrant 3652916, of Grand Cayman, Cayman Islands, Overseas Territory of the United Kingdom of Great Britain and Northern Ireland.
2. The Domain Name and Registrar
The disputed domain name <applianceproparts.com> is registered with Moniker Online Services, LLC.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 5, 2011. On July 6, 2011, the Center transmitted by email to Moniker Online Services, LLC. a request for registrar verification in connection with the disputed domain name. On July 6, 2011, Moniker Online Services, LLC. transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to Complainant on July 7, 2011 providing the registrant and contact information disclosed by the Registrar, and inviting Complainant to submit an amendment to the Complaint. Complainant filed an amended Complaint on July 8, 2011.
The Center verified that the Complaint together with the amended Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).
In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified Respondent of the Complaint, and the proceedings commenced on July 13, 2011. In accordance with the Rules, paragraph 5(a), the due date for Response was August 2, 2011. Respondent did not submit any response. Accordingly, the Center notified Respondent of its default on August 3, 2011.
The Center appointed Maxim H. Waldbaum as the sole panelist in this matter on August 9, 2011. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.
4. Factual Background
Complainant is a California corporation that offers appliance parts for sale through its Internet website, “www.appliancepartspros.com” (“Complainant’s website”). Complainant’s website hosted seven million visitors and executed 300,000 online sales in 2010.
Complainant’s predecessor in interest has commercially used the mark “Appliancepartspros” for eleven years.
Complainant registered its mark with the United States Patent & Trademark office in November 2008 -eighteen months prior to Respondent’s registration of the disputed domain name.
Respondent Moniker Privacy Services/Registrant 3652916 is the registrant of the disputed domain name.
5. Parties’ Contentions
Complainant possesses trademark rights in Appliancepartspros, Registration No. 3,526,659.
Respondent created the disputed domain name <applianceproparts.com> to route Complainant’s customers to Complainant’s competitors’ websites.
Upon discovery of Respondent’s misuse of Complainant’s mark in January 2011, Complainant sent a cease and desist letter to Respondent demanding a transfer of ownership over the disputed domain name.
Respondent refused to transfer ownership of the disputed domain name.
Respondent’s continued use of the disputed domain name constitutes a violation of UDRP Policy, paragraph 4.
Respondent did not reply to Complainant’s contentions.
6. Discussion and Findings
To prevail on its Complaint, the Complainant must prove that: (i) The disputed domain name is identical or confusingly similar to the trademark; (ii) The Respondent has no right or legitimate interests in respect of the disputed domain name; and (iii) the disputed domain name has been registered and is being used in bad faith. Sony Kabushiki Kaisha aka Sony Corp. v. Sony Holland, WIPO Case No. D2008-1025.
In view of the lack of a Response filed by Respondent as required under paragraph 5 of the Rules, this proceeding has proceeded by way of default. Thus, “[i]n considering those three matters,” this Panel “is entitled to draw such inferences as it considers appropriate from the failure by a Respondent to respond to a Complaint.” Debevoise & Plimpton LLP v. Marketing Total S.A., WIPO Case No. D2007-0451. In that regard, and without deciding this proceeding solely on the basis of Respondent’s default, the Panel makes the following specific findings.
A. Identical or Confusingly Similar
The Panel finds that the disputed domain name is confusingly similar to Complainant’s mark.
The disputed domain name (<applicanceproparts.com>) contains sufficient identity to the Complainant’s mark (Appliancepartspros) to be identical and confusingly similar. Panels have consistently concluded that a domain name’s inclusion of a registered mark in its entirety results in confusing similarity for purposes of paragraph 4(a)(i) of the Policy. See Oki Data Americas, Inc. v. ASD, Inc., WIPO Case No. D2001-0903 (November 6, 2001) (“[T]he fact that a Domain Name wholly incorporates a Complainant's registered Mark is sufficient to establish identity or confusing similarity for purposes of the Policy despite the addition of other words to such Marks”); Playboy Enterprises International, Inc. v. Sookwan Park, WIPO Case No. D2001-0778, October 1, 2001, (<playboysportsbook.com> was found confusingly similar to the PLAYBOY Mark); Adaptive Molecular Technologies, Inc. v. Piscilla Woodward S Charles R Thorton, d/b/a Machines & More, WIPO Case No. D2000-0006, (February 28, 2000) (the distinctive features of the domain name were the complainant's mark).
Respondent’s transposition of words (“proparts” instead of “partspro”) does nothing to undermine the identity or confusing similarity. “It is well-established that the transposition of words from a word Mark and the addition of generic terms is insufficient to avoid confusion.” La Société des Bains de Mer et du cercle des etrangers à Monaco v. 24-7 Home And Leisure, WIPO Case No. D2008-1597 (citing cases).
Respondent’s use of a top-level domain (“.com”) is irrelevant to paragraph 4(a)’s “confusing similarity” inquiry and is thus disregarded. Altria Group v. Daniel Cheng, WIPO Case No. D2009-1764.
B. Rights or Legitimate Interests
The Panel concludes that Respondent lacks rights or legitimate interests in the disputed domain name.
Although complainant bears the ultimate burden of proof, UDRP panels recognize that strict compliance often requires the impossible task of proving a negative because such information is frequently within the sole possession of the respondent. See Altria Group, Inc. v. Steven Co., WIPO Case No. D2010-1762. Accordingly, Complainant needs only make out a prima facie case that Respondent lacks rights or legitimate interests in the domain name. Id. Upon such a showing, the burden shifts to Respondent to demonstrate its rights or legitimate interests in the disputed domain name. Id.
Complainant has made a prima facie showing of its ownership interests in the mark, Appliancepartspros. Complainant has averred, and Respondent has not contested, that the disputed domain name’s use of the mark is without authorization from the mark’s owner. It is therefore incumbent upon Respondent to demonstrate its rights or legitimate interests in the disputed domain name. Altria Group, Inc. v. Steven Co., WIPO Case No. D2010-1762 (upon a prima facie showing, the burden shifts to respondent to demonstrate its rights or legitimate interests in the domain name); id. (Failure to satisfy its burden of proof is sufficient for a determination in favor of complainants, pursuant to 4(a)(ii) of the UDRP. Id. (citing WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Question 2.1.)).
Respondent has offered no rebuttal. The rules governing this Panel permit the use of negative inferences in light of a respondent’s default. See id. (citing WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Question 4.6). The record contains no evidence that Respondent has ever been commonly known by the disputed domain name. Nor does the record support a finding that Respondent operates the disputed domain name for a legitimate noncommercial or fair use, or in connection with a bona fide offering of goods or services.
Thus, based on the evidence of record here, the Panel finds that no basis exists which would appear to legitimize a claim by Respondent, were it to have made one, for the disputed domain name under paragraph 4(c) of the Policy.
C. Registered and Used in Bad Faith
The Panel concludes that Respondent’s registration of the disputed domain name was in bad faith.
The trademark registration of record confirms Complainant's contention that it had long been using its mark and its corresponding domain name when the disputed domain name was registered. The undisputed evidence shows that Respondent has effectively used the domain name to attract, for commercial gain, Internet users to its website or other on-line location, by creating a likelihood of confusion with Complainant's mark. ACCOR v. Nick V, ActionStudio, WIPO Case No. D2008-0644 (finding bad faith).
Respondent’s failure to respond to the Complainant’s January 2011 cease and desist letter is further evidence of bad faith. Intex Recreation Corp. v. RBT, Inc., Ira Weinstein, WIPO Case No. D2010-0119.
In the absence of a Response, Respondent’s apparent intent in registering and using the disputed domain name appears to be to disrupt the relationship between Complainant and its current and potential customers by creating a likelihood of confusion with Complainant’s Mark as to the source, sponsorship, affiliation, or endorsement of the Respondent’s website at the disputed domain name. Therefore, the Panel concludes that Respondent registered and used the domain name in bad faith.
Accordingly, under paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name <applianceproparts.com> be transferred to Complainant.
Maxim H. Waldbaum
Dated: August 23, 2011