The Complainant is National Carriers, Inc., United States of America (“United States” or “U.S.”), represented by Black IP, PLLC, United States.
The Respondent is Kenkoh Darlene Mesei, Cameroon. 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on May 17, 2021. On May 18, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On May 18, 2021, 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 July 1, 2021. In accordance with the Rules, paragraph 5, the due date for Response was July 21, 2021. The Respondent sent an informal communication to the Center on July 2, 2021. The Center sent a Possible Settlement communication to the Parties on July 2, 2021. The Complainant did not suspend the proceeding. The Center appointed John Swinson as the sole panelist in this matter on August 13, 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 Complainant is a trucking company located in the United States, with transportation offerings which include refrigerated, livestock, and logistics services. The Complainant has used the term “national carriers” as a trademark since 1968. The Complainant owns U.S. Trademark Registration No. 2,903,325 for the trademark NATIONAL CARRIERS, registered on November 16, 2004. The registration states that the first use in commerce of this trademark took place in 1968. The Complainant has used the domain name The disputed domain name was registered on December 11, 2020. At the time that the Complaint was filed, the disputed domain name resolved to a website with text supposedly offering “parcel transportation, warehousing, freight, reverse logistics, crossborder and technology services to over 10000 customers including all of world’s largest e-commerce companies and leading enterprises”. Some of this website was non-functional. The website included a California address but referred to the delivery of items in India. Currently, the website at the disputed domain name resolves to what appears to be a registrar generated pay-per-click (“PPC”) website, with advertising links relating to trucks and driving trucks. 5. Parties’ Contentions A. Complainant The Complainant made the following submissions: The Complainant owns the registered trademark referred to above in Section 4, as well as registered trademarks for or including “NCI”. The disputed domain name is confusingly similar to the Complainant’s NATIONAL CARRIERS trademark, which the Complainant has been using for many years. The only difference is the addition of “inc” at the end of the disputed domain name, which is an abbreviation for “incorporated”. The Respondent is not sponsored by or affiliated with the Complainant. The Respondent has not been authorized to use the term NATIONAL CARRIERS by the Complainant. The Respondent is using the disputed domain name for illegal activities, and such use is not bona fide. The Respondent, an individual in Cameroon, is not commonly known by the disputed domain name. The Respondent’s use of the disputed domain name is merely to host a website that abuses the Complainant’s trademarks NATIONAL CARRIERS and NCI to attract Internet users for illegitimate commercial gain. The Respondent’s website illustrates this illegitimate use by listing a phone number using an area code in the State of Oklahoma and a physical address in the State of California, despite the Respondent being an individual person in Cameroon. Additionally, much of the Respondent’s website is non-functional. The Respondent has sought to cause confusion for the Respondent’s commercial benefit by using the disputed domain name, which is confusingly similar to the Complainant’s NATIONAL CARRIERS mark, as well as by using the term “NCI” on the Respondent’s website, which is likewise confusingly similar to the Complainant’s registered NCI trademarks. The use of a domain name for per se illegitimate activity such as the sale of counterfeit goods or phishing can never confer rights or legitimate interests on a respondent, such behavior is manifestly considered evidence of bad faith. B. Respondent No formal response was filed. Various emails were sent to the Center, including from the named Respondent. These emails can be summarized as follows: The Respondent is not the owner of the disputed domain name. The Respondent is a web designer who registered the disputed domain name for a client who made contact online, and requested that the Respondent build a shipping website for this client. The disputed domain name was available for registration. The Respondent provided a Gmail email address for the owner of the website at the disputed domain name. An unknown person emailed the Center from the Gmail email address provided by the Respondent. This person stated that the Respondent was not the owner of the disputed domain name, asked why the website at the disputed domain name was down, and requested that the website be made live again. This person stated that he or she was consider taking this issue to court. 6. Discussion and Findings To succeed, the Complainant must demonstrate that all of the elements enumerated in paragraph 4(a) of the Policy have been satisfied, namely: (i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and (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 onus of proving these elements is on the Complainant. Paragraph 15(a) of the Rules directs the Panel to decide the complaint on the basis of the statements and documents submitted and in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable. Paragraph 1 of the Rules provide a definition of “respondent” as “the holder of a domain-name registration against which a complaint is initiated”. The Panel notes that the Registrar confirmed Kenkoh Darlene Mesei as the registrant of the disputed domain name, and that the Complaint was filed against this individual. While Kenkoh Darlene Mesei claimed the disputed domain name was registered for a third party, and this third party emailed the Center informing that Kenkoh Darlene Mesei is the web designer, nothing is known about the identity of this third party. The Panel considers that there are certain obligations for the registrant of a domain name arising from its registration, and the registrant cannot renege on its obligations and responsibilities merely because the disputed domain name was registered for the benefit of a third party. In these circumstances, the Panel will consider Kenkoh Darlene Mesei as the Respondent, will take into account the email communication by the third party as well, and references to the Respondent’s use of the disputed domain name shall comprise the use of the disputed domain name by Kenkoh Darlene Mesei or by the mentioned third party. A. Identical or Confusingly Similar Paragraph 4(a)(i) of the Policy provides that the Complainant must establish that the disputed domain name is identical or confusingly similar to a name, trademark or service mark in which the Complainant has rights. As set out above, the Complainant owns a trademark registration for NATIONAL CARRIERS. The disputed domain name is confusingly similar to the NATIONAL CARRIERS trademark. The only difference is that the disputed domain name includes the additional letters “inc” at the end of the disputed domain name. The mere addition of these three letters to the Complainant’s trademark does not negate the confusing similarity between the disputed domain name and the Complainant’s trademark under the Policy. Where the relevant trademark is recognizable within the disputed domain name, the addition of other terms usually does not prevent a finding of confusing similarity under the first element. The Complainant succeeds on the first element of the Policy in relation to the disputed domain name. B. Rights or Legitimate Interests The second requirement the Complainant must prove is that the Respondent has no rights or legitimate interests in the disputed domain name. Paragraph 4(c) of the Policy provides that the following circumstances can be situations in which the Respondent has rights or legitimate interests in a disputed domain name: (i) before any notice to [the Respondent] of the dispute, [the Respondent’s] use of, or demonstrable preparations to use, the [disputed] domain name or a name corresponding to the [disputed] domain name in connection with a bona fide offering of goods or services; or (ii) [the Respondent] (as an individual, business, or other organization) has been commonly known by the [disputed] domain name, even if [the Respondent] has acquired no trademark or service mark rights; or (iii) [the Respondent] is making a legitimate noncommercial or fair use of the [disputed] domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue. These are illustrative only and are not an exhaustive listing of the situations in which a respondent can show rights or legitimate interests in a domain name. The onus of proving this requirement, like each element, falls on the Complainant. Previous UDRP Panels have recognized the difficulties inherent in proving a negative, however, especially in circumstances where much of the relevant information is in, or likely to be in, the possession of the respondent. Accordingly, it is sufficient for a complainant to raise a prima facie case against the respondent under this head and an evidential burden of production will shift to the respondent to rebut that prima facie case. The Panel concludes that none of the circumstances listed in paragraph 4(c) apply in the present circumstances. The Complainant has not authorized the Respondent to register or use the disputed domain name or to use the NATIONAL CARRIERS trademark. The Complainant has rights in the NATIONAL CARRIERS trademark which clearly predate the Respondent’s registration of the disputed domain name. There is no evidence that the Respondent is commonly known by the disputed domain name. The name of the Respondent is Kenkoh Darlene Mesei. In the Response, the Respondent states that the Respondent is a web designer and digital marketer, and that the disputed domain name was registered for a client. No information is provided as to who this client happens to be. The Center received an email from a Gmail address under the name “National carrersinc”, but this email did not include any identifying information and merely stated that the disputed domain name was registered because it was available to be registered. These communications do not suggest that the Respondent is commonly known by the disputed domain name. As discussed below, the website at the disputed domain name appears to be part of a fraudulent scheme, and so would not be use of the disputed domain name in connection with the bona fide offering of goods or services. In the case file provided to the Panel, there is no evidence of circumstances of the type specified in paragraph 4(c) of the Policy, or of any other circumstances, giving rise to rights or legitimate interests in the disputed domain name by the Respondent. The Complainant has established a prima facie case that the Respondent does not have any rights or legitimate interests in the disputed domain name and thereby the burden of production shifts to the Respondent to produce evidence demonstrating rights or legitimate interests in respect of the disputed domain name. The Respondent’s submission on this issue includes the statement: “This domain those [sic] not belong to me” and there is no evidence from any other person to establish rights or legitimate interests in the disputed domain name. In short, the Respondent has failed to produce any evidence to establish rights or legitimate interests in the disputed domain name. Accordingly, the Panel finds the Respondent has no rights or any legitimate interests in the disputed domain name. The Complainant succeeds on the second element of the Policy in relation to the disputed domain name. C. Registered and Used in Bad Faith Paragraph 4(a)(iii) of the Policy provides that the Complainant must establish that the Respondent registered and subsequently used the disputed domain name in bad faith. The Complainant has been in operation for over 50 years and is very well-known in the transport industry. Due to the fame of the Complainant’s trademark, and that the disputed domain name is identical to the Complainant’s corporate name, the Panel considers that it is likely that the Respondent registered the disputed domain name knowing of the Complainant, and with the intention to take advantage of the Complainant’s reputation. In the informal communication, the Respondent does not provide any reason why the disputed domain name was selected (just that it was registered for a third party), nor did the Respondent state that the Respondent was not aware of the Complainant when the Respondent registered the disputed domain name. The thrust of the Respondent’s argument in relation to bad faith is that the domain name was available to be registered when it was registered by the Respondent. Supposedly, the Respondent (or the third party for which allegedly the disputed domain name was registered) is in the transport business. Businesses do not register domain names similar to their competitor’s trademark and corporate name for no reason at all, and in the particular circumstances of this case, the Panel feels entitled to infer that the intentions were in bad faith. Alternatively, if the Respondent (or the third party for which allegedly the disputed domain name was registered) is not in the transport business, then the Panel can infer that the disputed domain name is involved in a fraudulent activity. Both these inferences can be supported by the following facts regarding the website at the disputed domain name at the time the Complainant was filed: - The website had elements that were non-functional. The Complainant states the Respondent, an individual in Cameroon, is using the disputed domain name to operate a website fraudulently purporting to provide freight and logistics services in the United States, all at disproportionately below market rates, to be paid for using questionable means, namely sending payment to various PayPal, Bitcoin, or CashApp personal accounts. In short, the Complainant alleges that the Respondent’s website is fraudulent or part of the fraudulent scheme. The Respondent does not respond to this allegation, and no the third party for which allegedly the disputed domain name was registered did not provide any information in this regard. The Panel also notes that the Respondent is listed in various “scam” reporting websites. Using the disputed domain name to commit a fraud or to impersonate the Complainant is bad faith. Fondation Bettencourt Schueller v. WhoisGuard Protected, WhoisGuard, Inc. / Web designer Web designer,WIPO Case No. D2018-2750; Bytedance Ltd. v. Registration Private, Domains By Proxy, LLC/Kemal Aydin, Kemal,WIPO Case No. D2020-3433; The Prudential Assurance Company Ltd. v. Prudential Securities Ltd.,WIPO Case No. D2009-1561; Graybar Services Inc. v. Graybar Elec.,WIPO Case No. D2009-1017; Gateway Fiber LLC v. Wix.com Ltd., Wix.com Ltd. / Ali Oudah, Ayadi Group,WIPO Case No. D2021-1736. The Panel finds that the Respondent has intentionally attempted to attract for commercial gain Internet users to its website by creating likelihood of confusion with the Complainant’s trademark as to the source, sponsorship, affiliation, or endorsement of the web site under paragraph 4(b)(iv) of the Policy. Thus, for the above reasons, the Panel concludes that the registration and use of the disputed domain name was in bad faith. The Complainant succeeds on the third element of the Policy in relation to the disputed domain name. 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 John Swinson
- The address of the website owner was given as being in California with a telephone number from Oklahoma.
- The website referred to fulfillment of over 800 million orders in India.
- The website referred to “NCI” in the “who we are” section of the website. NCI is a registered trademark of the Complainant.
- The website states that NCI has been in business since 2011, and is a world leading supply chain company, with 85 fulfilment centers around the world.
If the business behind the disputed domain name was legitimate, then the Respondent (or the third party for which allegedly the disputed domain name was registered) could easily have provided details of its operations in the Response.
Sole Panelist
Date: August 27, 2021
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