The Complainant is Adam Smith, United States of America (“United States”), represented by Ray Law Firm, PLLC, United States.
The Respondents are Domain Administrator, See PrivacyGuardian.org, United States / aaaabbb, United States, dasdadaa, United States. 2. The Domain Names and Registrars
The disputed domain names The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on January 28, 2021. On January 28, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Disputed Domain Names. On January 28, 2021 the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the Disputed Domain Names which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on February 1, 2021, providing the registrant and contact information for multiple underlying registrants disclosed by the Registrar, and inviting the Complainant to either amend the Complaint adding the Registrar-disclosed registrants as formal Respondents and provide relevant arguments or evidence demonstrating that all named Respondents are, in fact, the same entity and/or that all domain names are under common control and indicate which domain names will no longer be included in the current Complaint. The Complaint filed an amendment to the Complaint on February 2, 2021, including comments on the consolidation. The Center verified that the Complaint together with the amendment to 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 February 4, 2021. In accordance with the Rules, paragraph 5, the due date for Response was February 24, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on March 1, 2021. The Center appointed Martin Schwimmer as the sole panelist in this matter on March 10, 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 Since 2012, the Complainant has used the trademark GEARMOOSE in connection with a lifestyle website, “www.gearmoose.com”, providing guides and information concerning consumer goods and services. The site earns referrer fees by providing links to special offers by third party manufacturers. The Complainant, Adam Smith, is the owner of the United States trademark registration for the GEARMOOSE word mark, Reg. No., 5,235,890 (the “Trademark”), registered on July 4, 2017, in connection to providing online electronic publications. The Disputed Domain Names The Disputed Domain Names are identical or confusingly similar to a trademark or service mark in which the Complainant has rights. The Complainant, Adam Smith, is the owner of the GEARMOOSE Trademark, which mark he has used since March 3, 2012, in connection with a lifestyle website he maintains at “www.gearmoose.com”. The Trademark is wholly incorporated in each of the Disputed Domain Names. The Respondent utilizes each of the Disputed Domain Names in connection with three websites that purport to be e-commerce websites offering apparel. The website at “www.gearmooseus.shop” offers men’s t-shirts; “www.gearmooseoutletsus.com” offers women’s tops; and “www.gearmooseshops.com” offers women’s dresses and tops (collectively, the “Websites”). At least one consumer was actually confused by the Respondent’s website, demanding a refund from the Complainant after attempting to purchase and failing to receive an item from “www.gearmooseus.shop”. The Respondent has no rights or legitimate interests in respect to the Disputed Domain Names. The Complainant has not granted the Respondent, by license or otherwise, permission to operate the Websites. The Respondent’s use of the Trademark in connection with the Websites is knowing infringement of the Complainant’s trademark. Moreover, the Respondent is not commonly known by and is not making a legitimate noncommercial or fair use of the Disputed Domain Names. The Disputed Domain Names were registered and are being used in bad faith. The Respondent’s use of false contact info is evidence of its bad faith intent, as is evidence of the instance of actual confusion. The Respondent intentionally attempted to and in fact did attract for commercial gain, Internet users to the Respondent’s websites by creating a likelihood of confusion with the Complainant’s Trademark as to the source, sponsorship, affiliation, or endorsement of the Respondent’s websites or location and of the products and services on the Respondent’s websites. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings 6.1 Procedural Finding The consolidation of the proceedings in respect of the Disputed Domain Names is appropriate as the Panel finds it probable that all of them are under common control. Paragraph 10(e) of the Rules grants a panel the power to consolidate multiple domain name disputes, and paragraph 3(c) of the Rules provides that a complaint may relate to more than one domain name, provided that the domain names are registered by the same domain-name holder. As discussed in section 4.11.2 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), where a complaint is filed against multiple respondents, panels look at whether the domain names or corresponding websites are subject to common control, and whether the consolidation would be fair and equitable to all parties. Procedural efficiency would also underpin panel consideration of such a consolidation scenario. Panels have considered a range of factors, typically present in some combination, as useful to determining whether such consolidation is appropriate, such as similarities in the content or layout of websites corresponding to the disputed domain names, any naming patterns in the disputed domain names, or other arguments made by the complainant. The Panel is satisfied that the consolidation of the Respondents and disputes related to the Disputed Domain Names in a single proceeding is justified and appropriate in the circumstances. Most importantly, the WhoIs information for all three names include email contact details associated with the email server “[..]@bk.ru”. The disputed domain names all include combinations of the distinctive GEARMOOSE trademark with descriptive terms added. The names were registered in the same month and from the same registrar. The fake registrant names are nonsensical in similar fashion (“aaaabbb” for one of the names, and “dasdadaa” for the others), and bear similarly incorrect addresses (New York, CO (sic) 85014 and New York, NY 85014, where 85014 is a zip code in Arizona). While the three individual websites contain different content, all three use the identical template. None of the listed registrants of the disputed domain names has objected to the consolidation request of the Complainant or advanced any reasons why it may not be equitable to allow the consolidation of the disputes. It appears that the consolidation would lead to greater procedural efficiency, and the Panel is not aware of any reasons why the consolidation would not be fair and equitable to all parties. Therefore, the Panel decides to allow the consolidation of the disputes in relation to all of the disputed domain names in the present proceeding. A. Identical or Confusingly Similar The Complainant has established ownership of United States trademark registration no. 5,235,890 for the word mark GEARMOOSE, registered in 2017, and stating a date of first use in 2012. The Disputed Domain Names all incorporate the Complainant’s trademark in its entirety, with the sole addition of non-distinctive descriptive terms. Section 1.8 of the WIPO Overview 3.0 states that “Where the relevant trademark is recognizable within the disputed domain name, the addition of other terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) would not prevent a finding of confusing similarity under the first element”. Accordingly, the Panel therefore finds that the first element of paragraph 4(a) of the Policy has been satisfied B. Rights or Legitimate Interests The Respondent uses the Disputed Domain Names for three different e-commerce apparel sites purporting to offer men’s and women’s apparel. The Respondent has received no authorization of any sort from the Complainant to use the GEARMOOSE trademark or include it in any domain name. The Respondent is not known by the name GEARMOOSE or by the Disputed Domain Names. The Panel has examined the Websites and concludes that they do not represent the bona fide offering of goods or services. While the Websites bear the slight formatting and spelling errors that might occur in the hap-dash construction of a legitimate website, they also contain errors inconsistent with the operation of a bona fide e-commerce website reviewed by humans. For example, one woman’s blouse is described as “Summer Loose Tops and 20-20 Art T-shirts and Summer Loose Tops and Exotic Art of Printing breasts are P1029’s breasts.” (sic). Another sweater is described as “The soil is too much soil for cotton to take off its coat.” (sic). Additionally, certain product photos display “models” holding cellphones pointed at the viewer, wearing apparel with backwards lettering, rendering the message printed on the garment illegible. The Panel suspects that these are not authentic photos intended to display products actually for sale, but are likely “mirror selfies” obtained from social media. Finally, the returns policy of “www.gearmooseoutletsus.com” reads in its entirety: “‘Nine waves, thunder sword.’ With a soft shout, Lin Feng spit out the nine waves in his left hand, rushing forward, the power of the arrows weakened, and the thunder sword would directly split the arrows open.” (sic). Considering the Complainant’s assertion that a customer of the Respondent’s Websites contacted the Complainant demanding a refund after ordering product that was never delivered, the Panel concludes that the Websites are likely fake websites operated as part of some sort of fraudulent scheme, and do not represent bona fide use of the Disputed Domain Names. Furthermore, the nature of the Disputed Domain Names carry a risk of implied affiliation with the Complainant. See WIPO Overview 3.0, section 2.5.1. As the Respondent has not filed any Response asserting any rights or legitimate interests, the Panel holds that the Complainant has established an unrebutted, prima facie case that the Respondent does not have any rights or legitimate interests in the disputed domain name, according to paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith Taking the evidence as a whole, the Respondent registered and uses the Disputed Domain Names, reflecting the Complainant’s Trademark in its entirety, in bad faith. Most importantly, as stated in the previous Section, the Panel has found the Respondent uses the Disputed Domain Names to operate what are likely fraudulent websites. The Respondent registered the names using clearly false contact info. Additionally, the trademark GEARMOOSE is distinctive enough to suggest that it is probable that the Trademark was adopted with prior knowledge, and the Complainant has provided evidence that the Respondent’s use has led to at least one instance of actual confusion. Finally, the Respondent’s act of obtaining three different domain names reflecting the Complainant’s Trademark for three different websites may be deemed to be a pattern of conduct constituting evidence of bad faith. See, e.g. Salvatore Ferragamo S.p.A v. Ying Chou, WIPO Case No. D2013-2034. Considering all these factors as a whole, the Panel holds that the Respondent registered and used the Disputed Domain Names in bad faith. 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 names, Martin Schwimmer
Sole Panelist
Date: March 13, 2021
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