WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Neovia Logistics IP Holdings LLC v. Marc McFetridge
Case No. D2014-1323
1. The Parties
Complainant is Neovia Logistics IP Holdings LLC of Irving, Texas, United States of America, represented by Lewis Silkin LLP, United Kingdom of Great Britain and Northern Ireland ("United Kingdom")
Respondent is Marc McFetridge of San Diego, United States of America ("United States").
2. The Domain Names and Registrar
The disputed domain names <neovia-logistic.com> and <neovia-logistic.net> are registered with PDR Ltd. d/b/a PublicDomainRegistry.com (the "Registrar").
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on August 4, 2014. On August 5, 2014, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain names. On August 6, 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 August 7, 2014. In accordance with the Rules, paragraph 5(a), the due date for Response was August 27, 2014. Respondent did not submit any response. Accordingly, the Center notified Respondent's default on August 28, 2014.
The Center appointed Lorelei Ritchie as the sole panelist in this matter on September 2, 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 a limited liability company registered in Delaware, United States. As a global logistics provider, it supports companies in automotive and industrial goods manufacturing, as well as retail and other sectors.
Complainant is the owner of several registrations for the mark NEOVIA, including European Community mark No. 01109338 (Registered in 2014); and United States Registration No. 4438782 (Registered in 2013).
Complainant has also registered various domain names, including <neovialogistics.com> (on July 4, 2012) and <neovialogistics.net> (on July 4, 2012), which Complainant uses to inform consumers about its products and services.
Respondent registered both disputed domain names on March 28, 2014. Respondent has linked the disputed domain names to websites that are exact copies of Complainant's website, except that the contact information differs. Respondent has also apparently used an email address associated with the disputed domain names to contact consumers and divert them on Respondent's behalf. In this way, Respondent has used the disputed domain names for his own apparent financial gain.
5. Parties' Contentions
Complainant contends that (i) the disputed domain names are identical or confusingly similar to Complainant's trademarks; (ii) Respondent has no rights or legitimate interest in the disputed domain names; and (iii) Respondent registered and is using the disputed domain names in bad faith.
Respondent did not reply to Complainant's contentions.
6. Discussion and Findings
A. Identical or Confusingly Similar
This Panel must first determine whether the disputed domain names are "identical or confusingly similar to a trademark or service mark in which the Complainant has rights" in accordance with paragraph 4(a)(i) of the Policy. The Panel finds that they are. Each of the disputed domain names incorporates in full Complainant's strong and fanciful mark, NEOVIA.
The Panel finds that the added word "logistics" in the disputed domain names would be perceived by Internet users as descriptive of a website where they could find information about Complainant's logistics services. This is especially so where, as here, Complainant itself has domain name registrations that include the same term, which describes the "logistics" service that it offers to consumers. Numerous UDRP panels have agreed that supplementing or modifying a trademark with generic or descriptive words does not make a domain name any less "identical or confusingly similar" for purposes of satisfying this first element of paragraph 4(a)(i) of the Policy. See, for example, Microsoft Corporation v. Step Web, WIPO Case No. D2000-1500; Wal-Mart Stores, Inc. v. Horoshiy, Inc., WIPO Case No. D2004-0620; General Electric Company v. Recruiters, WIPO Case No. D2007-0584.
This Panel therefore finds that the disputed domain names are identical or confusingly similar to a trademark in which Complainant has rights in accordance with paragraph 4(a)(i) of the Policy.
B. Rights or Legitimate Interests
The Policy provides some guidance to respondents on how to demonstrate rights or legitimate interests in the domain names in a UDRP dispute. For example, paragraph 4(c) of the Policy gives examples that might show rights or legitimate interests in a domain name. These examples include: (i) use of the domain name "in connection with a bona fide offering of goods or services"; (ii) demonstration that Respondent has been "commonly known by the domain name"; or (iii) "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".
Respondent did not reply to the Complaint, however, and no evidence has been presented to this Panel that might support a claim of Respondent's rights or legitimate interests in the disputed domain names. Rather, as mentioned in Section 4 of this Panel's decision, Respondent has apparently used an email address associated with the disputed domain names to divert Internet users for fraudulent purposes for Respondent's financial gain.
Therefore, this Panel finds that Complainant has provided sufficient evidence of Respondent's lack of "rights or legitimate interests" in accordance with paragraph 4(a)(ii) of the Policy.
C. Registered and Used in Bad Faith
There are several ways that a complainant can demonstrate that domain names were registered and used in bad faith. For example, paragraph 4(b)(iv) of the Policy states that bad faith can be shown where "by using the domain name [Respondent has] intentionally attempted to attract, for commercial gain, Internet users to [Respondent's] web site or other on-line location, by creating a likelihood of confusion with the Complainant's mark as to the source, sponsorship, affiliation, or endorsement of [Respondent's] website or location or of a product or service on [the] web site or location". As noted in Section 4 of this Panel's decision, Respondent has used an email address associated with the disputed domain names to divert Internet users. Specifically, Complainant has asserted that Respondent has perpetuated a scheme to divert consumers by posting fraudulent job opportunities in Complainant's name in order to mislead potential job seekers. In so doing, Respondent is trading on the goodwill of Complainant's trademarks to attract Internet users, presumably for Respondent's own commercial gain.
Therefore, this Panel finds that Respondent registered and is using the disputed domain names in bad faith in accordance with paragraph 4(a)(iii) of the Policy
For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain names <neovia-logistic.com> and <neovia-logistic.net> be transferred to Complainant.
Date: September 12, 2014