WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Ameren Services Company v. Neil McGarry
Case No. D2014-2110
1. The Parties
The Complainant is Ameren Services Company of St. Louis, Missouri, United States of America, represented by Senniger Powers LLP, United States of America.
The Respondent is Neil McGarry of Draper, Utah, United States of America.
2. The Domain Name and Registrar
The disputed domain name <amerencorp.com> is registered with GoDaddy.com, LLC (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 3, 2014. On December 3, 2014, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On December 5, 2014, the Registrar 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 the Complainant on December 8, 2014 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on December 16, 2014.
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 the Respondent of the Complaint, and the proceedings commenced on December 16, 2014. In accordance with the Rules, paragraph 5(a), the due date for Response was January 5, 2015. The Respondent did not submit any response. Accordingly, the Center notified the Respondent of its default on January 6, 2015.
The Center appointed Dennis A. Foster as the sole panelist in this matter on January 16, 2015. 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
The Complainant is a large company that supplies electric and gas power in the United States of America. The Complainant conducts its operations under its AMEREN service mark, for which the Complainant has obtained United States Patent and Trademark Office (“USPTO”) registrations (e.g., Registration No. 2,162,874; registered on June 2, 1998).
The disputed domain name <amerencorp.com> was registered on November 30, 2014. The disputed domain name leads to an inactive, parked webpage, and the Respondent has created an email address connected to the disputed domain name that, without authorization from the Complainant, corresponds to the name of one of the Complainant’s employees.
5. Parties’ Contentions
- The Complainant is an electric and gas supply company located in the city of St. Louis in the Untied States of America. It has approximately 9,300 employees and 2.4 million or more customers in the immediate vicinity.
- The Complainant operates under the AMEREN service mark, which the Complainant has registered with the USPTO. The Complainant also provides access to its services through the domain name <ameren.com>.
- The disputed domain name, <amerencorp.com>, is confusingly similar to the AMEREN service mark, as the mark is fully incorporated within the disputed domain name. Registration of the mark predates registration of the disputed domain name by sixteen years.
- The Respondent has no rights or legitimate interests in the disputed domain name. The Respondent has not been granted permission by the Complainant to use its service mark for any purpose.
- The disputed domain name has not been placed in use, but merely hosts a parked webpage. Moreover, the Respondent has used an email address connected to the disputed domain name and involving one of the Complainant’s employees, without authority to do so, in a fraudulent scheme to obtain computer equipment. Such activity is neither a bona fide offering of goods or services nor a legitimate noncommercial or fair use.
- The Respondent registered and is using the disputed domain name in bad faith. The Respondent is using the disputed domain name to cause confusion, to trade on the goodwill of the Complainant’s mark, and to steal from the Complainant. Moreover, attachment of the disputed domain name to a parked page demonstrates a level of nonuse that constitutes bad faith. Finally, the Respondent registered the disputed domain name anonymously through “Domains By Proxy, LLC”, a deception indicative of bad faith.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
Pursuant to paragraphs 4(a)(i) – (iii) of the Policy, the Panel may find for the Complainant and order a transfer of the disputed domain name, <amerencorp.com>, provided that the Complainant can demonstrate that:
- The disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
- The Respondent has no rights or legitimate interests in respect of the disputed domain name; and
- The disputed domain name has been registered and is being used in bad faith.
A. Identical or Confusingly Similar
The clear presentation to the Panel of evidence (Annex 4) supporting the Complainant’s contention that it owns a valid USPTO registration for the AMEREN service mark causes the Panel to conclude that the Complainant has sufficient rights in that mark to meet the requirements of Policy paragraph 4(a)(i). See, The Schneider Group, Inc. v. Jack Mann, WIPO Case No. D2010-0448 (“The Panel finds that Complainant has established rights in the PROTEK mark under Policy paragraph 4(a)(i) through its registration with the USPTO.”); and Intagent LLC v. Dominor LLC, WIPO Case No. D2008-1878 (“Complainant has demonstrated rights in the service mark INTAGENT based on use in commerce and as evidenced by registration at the USPTO.”).
The disputed domain name, <amerencorp.com>, differs only inconsequentially from the AMEREN service mark. In the Panel’s opinion, the addition of the suffix “corp” and generic Top-Level Domain (gTLD) “.com” provide immaterial distinction because “corp” is a mere abbreviation of the second term of the Complainant’s parent company’s name ― i.e., “Ameren Corporation” ― while a gTLD is required of all domain names. As a result, the Panel finds that the disputed domain name is confusingly similar to the Complainant’s service mark. See Terex Corporation v. Texas International Property Associates - NA NA, WIPO Case No. D2008-0733 (finding <terexcorp.com> to be confusingly similar to the TEREX mark, stating “...the added generic abbreviation for ‘corporation’, ‘corp’, and the gTLD suffix ‘.com’...will not alter the fact that the domain name at issue is confusingly similar to the mark in question”).
Accordingly, the Complainant has satisfied the requirements of Policy paragraph 4(a)(i).
B. Rights or Legitimate Interests
The Respondent has presented neither contentions nor evidence in this case. On the other hand, the Complainant has contended that the disputed domain name leads to a parked webpage that is inoperative. Moreover, the Complainant has furnished the Panel with strong evidence (Complaint Annex 9) that the Respondent has attached to the disputed domain name a bogus email address that mimics the legitimate email address of an employee of the Complainant. The Panel does not consider such activity ― or lack thereof ― to be a bona fide offering of goods or services per Policy paragraph 4(c)(i) or a legitimate noncommercial or fair use of the disputed domain name per Policy paragraph 4(c)(iii). See, TVS Motor Company Limited v. Vistaprint Technologies Limited, WIPO Case No. DCO2014-0007 (finding that the creation of unauthorized email addresses associated with a disputed domain name does not qualify as a bona fide offering of goods); and Graybar Services Inc. v. Lawrence Giglio, Grssbar Electric Inc., WIPO Case No. D2009-0993. Finally, Policy paragraph 4(c)(ii) is also inapplicable because there is no reason for the Panel to conclude that the Respondent, Neil McGarry, is commonly known by the disputed domain name, <amerencorp.com>, as there is absolutely no correspondence between the two names.
Since the Panel believes that the Complainant has submitted a prima facie case that Respondent has no rights or legitimate interests in the disputed domain name, i.e., the disputed domain name is confusingly similar to the Complainant’s mark and the Complainant has not granted permission for the Respondent to use the mark, the Panel finds for the Complainant as to this element of the Policy. The Respondent has provided no evidence to rebut the prima facie case, and there is no other evidence in the record to support a finding in favor of the Respondent based upon the criteria found in Policy paragraph 4(c) or otherwise.
Accordingly, the Complainant has satisfied the requirements of Policy paragraph 4(a)(ii).
C. Registered and Used in Bad Faith
The Complainant contends that the disputed domain name leads to a blank webpage and that the Respondent has used the disputed domain name to create a fake email address that utilizes the name of one of the Complainant’s employees. The Complainant believes that such use, or nonuse, of the disputed domain name constitutes registration and use in bad faith. The Panel is inclined to agree with the Complainant. There is no evidence to contradict the Complainant’s contentions and submissions, and the Panel can cite numerous previous UDRP decisions that have found nonuse of a domain name to be conclusive evidence of bad faith registration and use. See, for example, Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003.
The additional activity of the Respondent ― the creation of a deceptive email address attached to the disputed domain name ― serves only to increase the Panel’s belief that the Respondent has acted in bad faith in registering and using the disputed domain name. See, TVS Motor Company Limited, supra; and Graybar Services Inc., supra (“Complainant’s submission that Respondent has registered the Domain Name for an illegal purpose; namely to create email accounts designed to create a likelihood of confusion with the Trademark and deceive Internet users such as Complainant’s suppliers and vendors into believing emails sent from such accounts were legitimate emails from Complainant point strongly towards bad faith conduct.”).
Accordingly, the Complainant has satisfied the requirements of Policy paragraph 4(a)(iii).
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 name <amerencorp.com> be transferred to the Complainant.
Dennis A. Foster
Date: January 30, 2015