The Complainant is UC New England LLC, d/b/a “The Upper Crust Pizzeria”, United States of America (“United States”), represented internally.
The Respondent is Piyush Bhateja, United States. 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 29, 2020. On May 1, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On May 1, 2020, the Registrar transmitted by email to the Center its verification response confirming that the 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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on May 13, 2020. In accordance with the Rules, paragraph 5, the due date for Response was June 2, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on June 5, 2020. The Center appointed Evan D. Brown as the sole panelist in this matter on June 20, 2020. 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 in the business of owning and operating pizza restaurants in and around Boston, Massachusetts, United States. The Complainant has rights (through an affiliate) in a registration for the trademark THE UPPER CRUST PIZZERIA for restaurant services featuring pizza, United States Registration No. 3836483, registered on August 24, 2010. The Respondent registered the disputed domain name on September 10, 2019. The Respondent is the president of a company that provides restaurant ordering services. The Respondent has, apparently without the Complainant's authorization, set up at the disputed domain name a website using the Complainant's branding for purposes of procuring orders from the Complainant's restaurant. The Complainant requested the Respondent to transfer the disputed domain name to the Complainant, but the parties were unable to come to terms on such an arrangement. 5. Parties’ Contentions A. Complainant The Complainant contends that the disputed domain name is identical or confusingly similar to the Complainant’s trademark; that the Respondent has no rights or legitimate interests in respect of the disputed domain name; and that the disputed domain name was registered and is being used in bad faith. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings To succeed, the Complainant must demonstrate that all of the elements listed in paragraph 4(a) of the Policy have been satisfied: (i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; (ii) the Respondent has no rights or legitimate interests in respect of the disputed domain name; and (iii) the disputed domain name has been registered and is being used in bad faith. The Panel finds that all three of these elements have been met in this case. A. Identical or Confusingly Similar The Complainant clearly has rights in the mark THE UPPER CRUST PIZZERIA, evidenced by the registration certificate for that mark. The disputed domain name, for purposes of this first element, is confusingly similar to the Complainant’s mark. The addition of “ma” within the disputed domain name does not prevent a finding of confusing similarity. Accordingly, the Complainant has succeeded under this first element of the Policy. B. Rights or Legitimate Interests The Complainant has shown, prima facie, that the Respondent lacks rights or legitimate interests in the disputed domain name. The Respondent is not known by the disputed domain name. Nor is the disputed domain name being used for any noncommercial or fair use. The correspondence in the record of this case shows that the Complainant did not authorize the Respondent to use the Complainant’s trademark in the disputed domain name for purposes of generating orders for the Complainant’s restaurant, and the continued use of the disputed domain name over the Complainant’s objections is not a bona fide offering of services. Moreover, the Panel finds that the disputed domain name carries a high risk of implied affiliation. C. Registered and Used in Bad Faith There is no reasonable basis on which to dispute that the Respondent was targeting the Complainant when it registered the disputed domain name. The Panel credits the unrebutted evidence in this matter that the Respondent registered the disputed domain name without the Complainant’s authorization. These facts show bad faith registration of the disputed domain name. Using the disputed domain name to generate orders for the Complainant’s restaurant (presumably in return for certain consideration to be paid to the Respondent) is an example of bad faith use. The composition of the disputed domain name and the content of the page established at the disputed domain name make it clear that the Respondent was using the disputed domain name to intentionally attempt to attract, for commercial gain, Internet users to the Respondent’s website by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the website. This shows bad faith use. The Panel finds that the Complainant has satisfied this third element under the Policy. 7. Decision 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 Evan D. Brown
Sole Panelist
Date: July 4, 2020
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