WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
American Homes 4 Rent, L.P. v. Barry Mcdaniel
Case No. D2020-3472
1. The Parties
The Complainant is American Homes 4 Rent, L.P., United States of America (“United States” or “U.S.”), represented by Cislo and Thomas LLP, United States.
The Respondent is Barry Mcdaniel, United States.
2. The Domain Name and Registrar
The disputed domain name <ah4r.info> (the “Domain Name”) is registered with Ascio Technologies Inc. (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 19, 2020. On December 21, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On December 21, 2020, 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 the Complainant on December 28, 2020 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 31, 2020.
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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on January 12, 2021. In accordance with the Rules, paragraph 5, the due date for Response was February 1, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on February 3, 2021.
The Center appointed Ellen B Shankman as the sole panelist in this matter on February 17, 2021. 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 date of the Domain Name registration is November 26, 2020.
The Complainant commenced using the trademark AH4R in commerce at least as early as January 2014 in connection with rental home services (the “AH4R Mark”). The AH4R Mark is the subject of U.S. Registration No. 4,769,607 issued by the United States Patent and Trademark Office on July 7, 2015. The AH4R Mark has been used in connection with such goods continuously from the time adopted until the present, and predates the date of the Domain Name registration.
The Complainant provided evidence that the Domain Name has resolved to a website relating to housing services. The Panel also conducted an independent search to determine that the Domain Name currently resolves to an error page.
5. Parties’ Contentions
The Complaint contends that the Complainant American Homes 4 Rent, also known as AH4R, and its affiliated companies specialize in investing in well-located single family rental homes, and has been in business since 2012. The Complainant develops and builds new communities, as well as acquires and renovates existing homes, and maintaining and leasing the homes, providing services for families that wish to live in a single-family home in a desirable neighborhood. The Complainant is a publicly traded company with annual revenues exceeding USD 1 billion, and is the second largest publicly traded real estate investment trust in single family home rentals. At the end of 2019, AH4R had over USD 13 billion total market capitalization, with geographic coverage with over 53,000 homes in 22 states in the United States. The Complainant enjoys extensive unsolicited media coverage of the company and its activities.
The Complaint alleges that the Respondent’s website resolving from the Domain Name uses the Complainant’s AH4R trademark to attract consumers looking for the Complainant. In a further attempt to deceive consumers and pass off as the Complainant, the website at the Domain Name not only uses the Complainant’s AH4R trademark in the Domain Name, but also displays additional trademarks of the Complainant. The Respondent’s website references “single family home” in the upper left-hand corner and seeks to collect what one would assume is potential customer’s information. This collection of information is especially concerning. When selecting the menu on the Respondent’s website, images are shown of what appears to be single family homes with rental information at the bottom of the page. A search of the email address at the top of the page, results in two “rental listings”. Of note, is that the Complainant also appears in the search results.
The Complainant argues that, as a consequence of the Respondent’s use of the Domain Name and other AH4R Marks, it is being damaged in several ways. First, the company is likely losing Internet traffic to a fraudulent website. Second, current renters and potential customers may believe this website is associated and/or affiliated with the Complainant, which is false and misleading. Third, the Complainant has no knowledge regarding what the Respondent is doing with the information it collects, and argues that it could be collecting, selling and contacting people fraudulently, and as such, the Complainant will continue to suffer damage to its business and its reputation.
To summarize the Complaint, the Complainant is the owner of registrations for the trademark AH4R, in respect of rental housing services. The Domain Name is confusingly similar to the trademark owned by the Complainant. By registering the Domain Name that comprises the Complainant’s AH4R trademark in its entirety, with the mere addition of the generic Top-Level Domain (“gTLD”) “.info”, the Respondent has created a domain name that is confusingly similar to the Complainant’s trademark. Further, the Respondent has utilized the Complainant’s logos in its website, and as such, the Respondent has demonstrated a knowledge of and familiarity with the Complainant’s brand and business. The addition of the gTLD “.info” to the AH4R mark does not prevent a finding of confusing similarity. Therefore, the Domain Name could be considered virtually identical and/or confusingly similar to the Complainant’s trademark. The Complainant contends that the Respondent has no rights or legitimate interests in respect of the Domain Name. The Respondent may be maliciously collecting user information, which is evidence of bad faith. The Domain Name was registered and is being used in bad faith. Thus, the Respondent’s registration and use of the Domain Name constitutes bad faith registration and use under the Policy, and the Complainant requests transfer of the Domain Name.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
The burden for the Complainant under paragraph 4(a) of the Policy is to prove:
(i) 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;
(ii) that the Respondent has no rights or legitimate interests in respect of the Domain Name; and
(iii) that the Domain Name has been registered and used in bad faith
The Complainant must prove in this administrative proceeding that each of the aforementioned three elements is present in order to obtain the transfer of the Domain Name.
In accordance with paragraph 14(a) of the Rules, if the Respondent does not submit a Response, in the absence of exceptional circumstances, the Panel shall decide the dispute based upon the Complaint. Since the Respondent did not respond to this Complaint, the facts regarding the use and reputation of the Complainant’s mark are taken from the Complaint and are generally accepted as true in the circumstances of this case.
A. Identical or Confusingly Similar
The Panel finds that the Complainant has satisfactorily proven that it has registered trademark rights for AH4R.
Further, the Panel finds that the Domain Name integrates the Complainant’s mark AH4R in its entirety and that the Domain Name is identical to the Complainant’s trademark. See Pfizer Inc. v. Asia Ventures, Inc., WIPO Case No. D2005-0256.
Accordingly, the Panel finds that the Complainant has satisfied the first requirement that the Domain Name is identical or confusingly similar to the Complainant’s registered trademark, under paragraph 4(a)(i) of the Policy.
B. Rights or Legitimate Interests
Paragraph 4(c) of the Policy in turn identifies three means through which a respondent may establish rights or legitimate interests in a domain name. Although the complainant bears the ultimate burden of establishing all three elements of paragraph 4(a) of the Policy, UDRP panels have recognized that this could result in the often-impossible task of proving a negative, requiring information that is primarily, if not exclusively, within the knowledge of the respondent. Thus, the consensus view is that paragraph 4(c) shifts the burden of production to the respondent to come forward with evidence of rights or legitimate interests in the disputed domain name, once the complainant has made a prima facie showing. See, e.g., Document Technologies, Inc. v. International Electronic Communications Inc., WIPO Case No. D2000-0270.
The Complainant asserts that the Respondent has no rights or legitimate interests in respect of the Domain Name and that it is not related to or affiliated in any way with the Complainant, nor has the Complainant authorized the Respondent to use its trademarks.
Furthermore, the nature of the Domain Name, being identical to the Complainant’s AH4R Mark, carries a high risk of implied affiliation. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”) at section 2.5.1.
Based on the available record, the Panel finds that the Complainant has established a prima facie case, which was not refuted, that the Respondent lacks rights or legitimate interests in the Domain Name.
Therefore, the Complainant has satisfied the second requirement that the Respondent has no rights or legitimate interests in the Domain Name, under paragraph 4(a)(ii) of the Policy.
C. Registered and Used in Bad Faith
By registering the Domain Name that comprises the Complainant’s AH4R trademark in its entirety, together with providing evidence of prior links that resolve to single family rental properties, the Respondent has demonstrated a knowledge of and familiarity with the Complainant’s brand and business. In light of the facts set forth within this Complaint, the Panel finds that it is “[…] not possible to conceive of a plausible situation in which the Respondent would have been unaware of” the Complainant’s brand at the time the Domain Name was registered. See Telstra Corp. Ltd. v. Nuclear Marshmallows, WIPO Case No. D2000-0003. Further, “[…] it defies common sense to believe that Respondent coincidentally selected the precise domain without any knowledge of Complainant and its trademarks.” See Asian World of Martial Arts Inc. v. Texas International Property Associates, WIPO Case No. D2007-1415. The Panel agrees with the Complainant’s contention that the Respondent’s purpose in registering the Domain Name was probably to capitalize on the reputation of the Complainant’s trademark by diverting Internet users seeking information about this distinctive sign to its own website, where sponsored/competitive links had been published. See Hoffmann-La Roche Inc. v. Doroven, WIPO Case No. D2010-1196.
A respondent’s use of a complainant’s mark — for said respondent’s commercial benefit — to attract Internet users otherwise seeking said complainant evinces a finding of bad faith is also consistent with the Policy 4(b)(iv). See WIPO Overview 3.0 at section 3.1.4 (“Panels have moreover found the following types of evidence to support a finding that a respondent has registered a domain name to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with the complainant’s mark: (i) actual confusion, (ii) seeking to cause confusion (including by technical means beyond the domain name itself) for the respondent’s commercial benefit, even if unsuccessful, (iii) the lack of a respondent’s own rights to or legitimate interests in a domain name, (iv) redirecting the domain name to a different respondent-owned website, even where such website contains a disclaimer, (v) redirecting the domain name to the complainant’s (or a competitor’s) website, and (vi) absence of any conceivable good faith use.”). These criteria apply in the present case, which supports that Panel’s finding that the Respondent registered and is using the Domain Name in bad faith.
The Panel’s view that when considering the balance of probabilities, it is more likely than not that the Respondent not only had actual or constructive knowledge of the Complainant’s trademarks and that registration of the Domain Name would be identical or confusingly similar to the Complainant’s trademarks, but that the use was intended to ride on the reputation of the Complainant. Although no direct evidence was provided that the Respondent sent malicious and fraudulent emails to third parties, the Panel thinks that it is “more likely than not” that there could not be any legitimate use of this Domain Name.
In light of the facts set forth within this Complaint, the Panel finds that it is “[…] not possible to conceive of a plausible situation in which the Respondent would have been unaware of” the Complainant’s brand at the time the Domain Name was registered. See Telstra Corp. Ltd. v. Nuclear Marshmallows, supra. Further, “it defies common sense to believe that Respondent coincidentally selected the precise domain without any knowledge of Complainant and its trademarks.” See Asian World of Martial Arts Inc. v. Texas International Property Associates, supra.
Furthermore, the use of the Domain Name to resolve to a website intending to create a false association with the Complainant, also appearing to be used to phish personal details or sensitive information from Internet consumers, supports a finding of bad faith in these circumstances.
Given the evidence of the Complainant’s prior rights in the trademark, the timing of the registration of the Domain Name with apparent full knowledge of the Complainant by evidence of use of its trademarks in the website, and the use of the Domain Name, the Panel finds that the Complainant has satisfied the third requirement that the Respondent has registered and is using the Domain Names in bad faith, under paragraph 4(a)(iii) of the Policy.
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 <ah4r.info> be transferred to the Complainant.
Ellen B Shankman
Date: March 3, 2021