Complainant is Consumer Reports, Inc., United States of America (“United States”), represented by Cozen O'Connor, United States.
Respondent is Semalee Bilbreys, 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 October 30, 2020. On November 4, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On November 5, 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 Complainant on November 5, 2020, 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 November 5, 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 Respondent of the Complaint, and the proceedings commenced on November 9, 2020. In accordance with the Rules, paragraph 5, the due date for Response was November 29, 2020. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on November 30, 2020. The Center appointed Robert A. Badgley as the sole panelist in this matter on December 16, 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 Complainant describes itself as “a non-profit consumer product testing and advocacy organization that publishes the print and digital family of Consumer Reports publications”. According to Complainant, it was formed in 1936 and provides “unbiased product testing and ratings, research, journalism, publication and advocacy.” Complainant has used the trademark CONSUMER REPORTS since 1942 to identify and distinguish its publications. Complainant holds several trademark registrations for CONSUMER REPORTS, including United States Patent and Trademark Office Reg. No. 672,849 registered on January 20, 1959. Complainant also operates a website at “www.consumerreports.org”. The Domain Name was registered on May 31, 2020. The Domain Name resolves to a website that features various hyperlinks for “Product Reviews and Ratings”, including “Best Gaming Monitors in 2020”, “Best Smart TVs in 2020”, “Best Stick Vacuum to Buy in 2020”, and so forth. According to Complainant, Respondent’s website is merely a “cheap imitation” of Complainant’s website. Complainant also asserts that Respondent earns revenue each time a user clicks on the product mentioned in one of Respondent’s purported product reviews. Complainant asserts that Respondent has never had a relationship with Complainant, and that Complainant has never authorized Respondent to use the CONSUMER REPORTS mark in a domain name or otherwise. 5. Parties’ Contentions A. Complainant Complainant contends that it has satisfied each of the elements required under the Policy for a transfer of the Domain Name. B. Respondent Respondent did not 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 trademark CONSUMER REPORTS through registration and use demonstrated in the record. The Panel also concludes that the Domain Name is confusingly similar to that mark. The CONSUMER REPORTS mark is clearly recognizable within the Domain Name. The additional letter “s” after “consumer” and the replacement of the “s” in “reports” with the letter “z” do nothing to diminish the obvious confusing similarity between the mark and the Domain Name. 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, among other circumstances, by 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 in this proceeding to articulate or prove his bona fides vis-à-vis the Domain Name. On the record before the Panel, it is undisputed that Complainant has had no relationship with Respondent, and has never authorized Respondent to use its CONSUMER REPORTS trademark in a domain name or otherwise. The undisputed record in this case indicates that Respondent is using the Domain Name to mimic Complainant’s website and services, for commercial gain engendered through consumer confusion. This conduct certainly does not vest Respondent with any rights or legitimate interests in respect of the Domain Name. Complainant has established Policy paragraph 4(a)(ii). C. Registered or 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 registered and used the Domain Name in bad faith. On the undisputed record before the Panel, it is clear that Respondent had Complainant’s CONSUMER REPORTS trademark in mind when he registered the Domain Name. This is obvious from Respondent’s use of Complainant’s logo at his website, and the fact that Respondent purports to provide the same services as Complainant does. As respects bad faith use, the above-quoted Policy paragraph 4(b)(iv) applies here. It is plausibly alleged, and not disputed, that Respondent derives commercial gain, in the form of per-click revenue. Complainant has established Policy paragraph 4(a)(iii). 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 Domain Name Robert A. Badgley
Sole Panelist
Date: December 30, 2020
Full & Egal Universal Law Academy