WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
3 Men Movers, Ltd. v. Registration Private, Domains By Proxy, LLC / Eric Weathersby, The Weathersby Group, Inc
Case No. D2017-1858
1. The Parties
Complainant is 3 Men Movers of Houston, Texas, United States of America (“United States”), represented by Robinson Law Office, PLLC, United States.
Respondent is Registration Private, Domains By Proxy, LLC of Scottsdale, Arizona, United States / Eric Weathersby, The Weathersby Group, Inc of Merrillville, Indiana, United States.
2. The Domain Name and Registrar
The disputed domain name <3menmovershouston.com> (the “Domain Name”) 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 September 22, 2017. On September 25, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On September 26, 2017, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the Domain Name, which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to Complainant on September 29, 2017, 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 October 2, 2017.
The Center verified that the Complaint and 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 and 4, the Center formally notified Respondent of the Complaint and amended Complaint, and the proceedings commenced on October 4, 2017. In accordance with the Rules, paragraph 5, the due date for Response was October 24, 2017. Apart from an email communication received on October 4, 2017, no formal Response was filed with the Center.
The Center appointed Robert A. Badgley as the sole panelist in this matter on November 17, 2017. 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 moving services provider based in Houston, Texas, United States. Complainant holds multiple registered trademarks for the mark 3-MEN MOVERS, including United States Patent and Trademark Office Registration No. 3,191,921 with a registration date of January 2, 2007, and a first use in commerce of October 19, 1988.
The Domain Name was registered on February 8, 2017. For a time, the Domain Name resolved to a website where one of Complainant’s competitors, Pro Movers Houston, offers moving services. It is not clear from the record whether Respondent has any relationship with Pro Movers Houston.
5. Parties’ Contentions
Complainant contends that it has satisfied all three elements required under the Policy for a transfer of the Domain Name.
The Center received an email communication from an email address that appears to be connected with A-Star Movers, a company that Complainant alleges is related to Pro Movers Houston. This email address differs from the one reflected in the WhoIs record, and the content of the email – although nominally addressed to the Center – does not clarify the sender’s relationship with Respondent. The email appears to be directed to Complainant and states:
“In response to this letter I’m just asking you guys to be clear in your request because you been calling and calling about not to used your name in any shape. But I specifically ask you guys one time about the domain if you guys have any problem with that and the respond was No. so I don’t understand why now it is a problem? We did what you guys ask us to do and now you're coming up with something else, do guys have nothing else to do then just bothering? Don't worry we'll take action right of way we don’t need this harassment from you guys.”
Respondent did not otherwise reply to Complainant’s contentions.
6. Discussion and Findings
Paragraph 4(a) of the Policy lists the three elements which Complainant must satisfy with respect to the Domain Name:
(i) the Domain Name is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(ii) Respondent has no rights or legitimate interests in respect of the Domain Name; and
(iii) the Domain Name has been registered and is being used in bad faith.
A. Identical or Confusingly Similar
The Panel concludes that Complainant has rights in the mark 3-MEN MOVERS through registration and use. The Domain Name is confusingly similar to Complainant’s mark, since it incorporates the mark 3-MEN MOVERS in its entirety and adds the geographical indicator “Houston”, where Complainant is a major provider of moving services.
Complainant has established Policy, paragraph 4(a)(i).
B. Rights or Legitimate Interests
Pursuant to paragraph 4(c) of the Policy, Respondent may establish its rights or legitimate interests in the Domain Name by, among other circumstances, showing any of the following elements:
(i) before any notice to you [Respondent] of the dispute, your use of, or demonstrable preparations to use, the Domain Name or a name corresponding to the Domain Name in connection with a bona fide offering of goods or services; or
(ii) you [Respondent] (as an individual, business, or other organization) have been commonly known by the Domain Name, even if you have acquired no trademark or service mark rights; or
(iii) you [Respondent] are making a legitimate noncommercial or fair use of the Domain Name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
The Panel concludes that Respondent lacks rights or legitimate interests in respect of the Domain Name.
Respondent has not come forward to explain its bona fides, if any, with respect to the Domain Name. The Domain Name resolves to a website where services in direct competition with Complainant’s trademarked services are offered. These circumstances plainly do not confer upon Respondent any rights or legitimate interests in respect of the Domain Name.
Complainant has established Policy, paragraph 4(a)(ii).
C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy provides that the following circumstances, “in particular but without limitation,” are evidence of the registration and use of the Domain Name in “bad faith”:
(i) circumstances indicating that Respondent has registered or has acquired the Domain Name primarily for the purpose of selling, renting, or otherwise transferring the Domain Name registration to Complainant who is the owner of the trademark or service mark or to a competitor of that Complainant, for valuable consideration in excess of its documented out of pocket costs directly related to the Domain Name; or
(ii) that Respondent has registered the Domain Name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that Respondent has engaged in a pattern of such conduct; or
(iii) that Respondent has registered the Domain Name primarily for the purpose of disrupting the business of a competitor; or
(iv) that by using the Domain Name, Respondent has intentionally attempted to attract, for commercial gain, Internet users to Respondent’s website or other online location, by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website or location or of a product or service on Respondent’s website or location.
The Panel concludes that Respondent has registered and is using the Domain Name in bad faith. Respondent clearly had Complainant’s mark in mind when registering the Domain Name, because the Domain Name entirely incorporates Complainant’s mark and adds the geographical indicator “Houston”, where Complainant provides its services.
With respect to bad faith use, it is not clear whether Respondent is somehow affiliated with Pro Movers Houston or is acting on its own behalf. As such, it is not clear whether Respondent can be found in bad faith under Policy, paragraph 4(b)(iii), quoted above, for seeking to disrupt the business of a competitor.
Nonetheless, it is clear Respondent is in bad faith under Policy, paragraph 4(b)(iv), as the Domain Name resolves to a commercial website where services are offered. On this record, the Panel can find no conceivable good faith basis for appropriating another party’s trademark in a domain name and pointing that domain name to a website offering services in direct competition with the trademark owner. This is a clear case of abusive domain name registration and use.
Complainant has established 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 Domain Name <3menmovershouston.com> be transferred to Complainant.
Robert A. Badgley
Date: December 1, 2017