WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Groupon, Inc. v. Hector Miller
Case No. D2014-1105
1. The Parties
Complainant is Groupon, Inc. of Chicago, Illinois, United States of America.
Respondent is Hector Miller of San Jose, California, United States of America.
2. The Domain Names and Registrar
The disputed domain names <groupon-best.com>, <groupon-share.com> and <groupon-top.com> are registered with Name.com LLC (the "Registrar").
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on June 25, 2014. On June 26, 2014, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain names. On June 26, 2014, the Registrar transmitted by email to the Center its verification response confirming that Respondent is listed as the registrant and providing the contact details.
The Center verified that the 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 11, 2014. In accordance with the Rules, paragraph 5(a), the due date for Response was July 31, 2014. Respondent did not submit any response. Accordingly, the Center notified Respondent's default on August 4, 2014.
The Center appointed M. Scott Donahey as the sole panelist in this matter on August 13, 2014. 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 an online company involved in a largely online program primarily offering reduced price goods and services to groups of buyers responding to online offers. Complainant currently has 44.9 million active customers and 200 million subscribers worldwide in more than 48 countries and works with 500,000 merchants in its discount promotions, including customers, subscribers and merchants in San Jose, California, where Respondent resides. Complainant attracts more than 15 million visitors to its web site on a monthly basis. Complaint, Annexes, 4, 5, and 6. In 2013 Complainant had 2.6 billion dollars in revenue. Complaint, Annex 7.
Complainant is the registrant of many trademarks, including GROUPON. Respondent first registered the mark GROUPON with the United States Patent and Trademark Office, and the registration issued on September 22, 2009. The registration claims a first use in commerce on October 21, 2008. Complaint, Annex 1.
Complainant sent Respondent a series of cease and desist letters and emails, dated May 14, 2014, May 22, 2014, and June 5 2014, to which Respondent failed to reply. Complaint, Annex 9.
Respondent registered the disputed domain name <groupon-share.com> on April 13, 2014, and registered the disputed domain names <groupon-best.com> and <groupon-top.com> on April 17, 2014. Complaint, Annex 2. The disputed domain names resolve to blank pages lacking any content whatsoever. Complaint, Annex 3.
5. Parties' Contentions
Complainant alleges that the disputed domain names are at least confusingly similar to Complainant's GROUPON mark, in that each contains Complainant's GROUPON mark followed by a dash and a common English word. Complainant further contends that Respondent has no rights or legitimate interests in respect of the disputed domain names in that Complainant has never authorized Respondent to use Complainant's GROUPON trademark in any way, and Respondent is not apparently known by the "groupon" name. Finally, Complainant alleges that Respondent has registered and is using the disputed domain names in bad faith since Respondent failed to reply to the cease and desist letters sent by Complainant, Respondent has failed to make any allegedly good faith use of the disputed domain names, and there is no conceivable good faith use to which the disputed names could be put without violating Complainant's well-known and unique mark.
Respondent did not reply to Complainant's contentions.
6. Discussion and Findings
Paragraph 15(a) of the Rules instructs the Panel as to the principles the Panel is to use in determining the dispute: "A Panel shall 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 directs that the complainant must prove each of the following:
1) that the domain name registered by the respondent is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and,
2) that the respondent has no rights or legitimate interests in respect of the domain name; and,
3) that the domain name has been registered and is being used in bad faith.
A. Identical or Confusingly Similar
Where a domain name incorporates the Complainant's mark in its entirety, the domain name is generally confusingly similar to the Complainant's mark, despite the addition of other words in the domain name and despite the fact that common words may be appended or common words inserted therein. This is the so-called "objective test" adopted by the majority of UDRP panelists. See Wal-Mart Stores, Inc. v. MacLeod d/b/a For Sale, WIPO Case No. D2000-0662. Therefore the panel finds that the disputed domain names, all of which incorporate Complainant's GROUPON mark, are confusingly similar to Complainant's mark.
B. Rights or Legitimate Interests
The consensus view of UDRP panelists concerning the burden of establishing no rights or legitimate interests in respect of the domain name is as follows:
While the overall burden of proof rests with the complainant, panels have recognized that this could result in the often impossible task of proving a negative, requiring information that is often primarily within the knowledge of the respondent. Therefore a complainant is required to make out an initial prima facie case that the respondent lacks rights or legitimate interests. Once such prima facie case is made, respondent carries the burden of demonstrating rights or legitimate interests in the domain name. If the respondent fails to come forward with such appropriate allegations or evidence, a complainant is generally deemed to have satisfied paragraph 4(a)(ii) of the UDRP.
WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition ("WIPO Overview, 2.0"), Section 2.1.
In the present case Complainant alleges that Respondent has no rights or legitimate interests in respect of the disputed domain names. Complainant's arguments in this regard are set out in paragraph 5.A., supra, and the Panel finds that these are sufficient to establish Complainant's prima facie case. Respondent has failed to assert any such rights. Accordingly, the Panel finds that Respondent has no rights or legitimate interests in respect of the disputed domain names.
C. Registered and Used in Bad Faith
Complainant's trademark and business is well-known in the United States, especially in the online environment, an environment for which domain names were created to act as the easier to remember address for the Internet Protocol Number with which online "locations" such as web sites are associated. The primary purpose for which people register domain names is to use them in the online environment for which they were intended. Complainant's well-known GROUPON trademark is in use and well-known in the online environment throughout the United States, including in San Jose California, where Respondent resides. The disputed domain names registered by Respondent are for use as addresses in this online environment.
Complainant sent Respondent a series of letters, requesting that Respondent cease and desist the use of the disputed domain names, because the disputed domain names were confusingly similar to Complainant's GROUPON mark. Respondent failed to reply to these demand letters. Complainant filed a Complaint in this matter, alleging that the disputed domain names were confusingly similar to Complainant's GROUPON mark, that Respondent had no rights or legitimate interests in respect of the disputed domain names, and that Respondent was effectively using the disputed domain names in bad faith by using them to resolve to blank web pages, devoid of any content. Respondent failed to reply to these allegations.
Accordingly, under all of the facts and circumstances, the Panel finds that Respondent has registered and is using the disputed domain names in bad faith. Telstra Corporation Limited vs. Nuclear Marshmallows, WIPO Case No. D2000-0003.
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain names <groupon-best.com>, <groupon-share.com>, <groupon-top.com> be transferred to the Complainant.
M. Scott Donahey
Date: August 14, 2014