Complainant is American Homes 4 Rent, L.P., United States of America (“United States”), represented by Cislo and Thomas LLP, United States.
Respondent is Dmitry Gordeev, Gamma, United States.
2. The Domain Name and RegistrarThe disputed domain name
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 31, 2021. On August 31, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On the same day, 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 September 13, 2021, 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 September 13, 2021.
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 September 17, 2021. In accordance with the Rules, paragraph 5, the due date for Response was October 7, 2021. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on October 8, 2021.
The Center appointed Christopher S. Gibson as the sole panelist in this matter on October 27, 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 BackgroundComplainant, also known as AH4R, and its affiliated companies specialize in investing in single family rental homes. Complainant has been in business since 2012 and operates the website “www.ah4r.com”, previously “www.americanhomes4rent.com”. Complainant’s website offers listings for prospective customers and is also used by current tenants for account management, while being a resource for investors to find financial information. Complainant has the following characteristics:
- Publicly traded company on the NYSE – symbol AMH;
- Annual revenues over USD 1.14 billion dollars in 2019;
- Second largest publicly traded Real Estate Investment Trust in single family home rentals;
- At the end of 2019, AH4R had over USD 13 billion total market capitalization;
- Large geographic coverage with over 53,000 homes in 22 states as of June 30, 2020;
- The company’s website at “www.americanhomes4rent.com” has had over thirty-three million sessions;
- One of the nation’s largest landlord of single-family homes;
- Substantial current customer base with 20,717 new leases executed in 2019 and 30,892 renewals;
- Extensive unsolicited media coverage of the company and its activities.
Complainant is the owner of several trademarks, including the following United States registrations:
Mark
Reg. No.
Goods
Registration date
AH4R
4769607
Rental of homes
July 7, 2015
AMERICAN HOMES 4 RENT
4829795
Rental of homes
October 13, 2015
6045149
Rental of homes
May 05, 2020
4345187
Rental of homes
June 4, 2013
Complainant commenced using the trademark AH4R in commerce at least as early as January 2014 in connection with rental home services, and has used the mark continuously from that time until the present.
The Domain Name was registered on July 22, 2021 and redirects to the website of a company reportedly called American Rental Homes, LLC.
5. Parties’ Contentions A. ComplainantComplainant contends that transfer of the Domain Name to Complainant is necessary because the Domain Name and the services offered at the website linked to it are infringing Complainant’s federally registered incontestable trademark, AH4R. The Domain Name incorporates Complainant’s AH4R mark in its entirety, and is confusingly similar to Complainant’s mark; (b) Respondent lacks any rights or legitimate interests in the Domain Name; and (c) Respondent has registered and is using the Domain Name in bad faith. Thus, the Panel should grant the relief requested and transfer the Domain Name to Complainant.
(i) Identical or confusingly similar
Complainant states its federally registered AH4R mark constitutes prima facie evidence of the validity of the mark, Complainant’s ownership of it, and Complainant’s exclusive right to use the mark in connection with rental home services and related goods and services. The AH4R mark identifies Complainant’s services and distinguishes them from services offered by others by, among other things, prominently displaying the mark on its Internet website and on advertising materials promoting its services. As a consequence, Complainant submits its AH4R mark has attained considerable value, and the goodwill associated with it represents a valuable business asset.
Complainant contends the Domain Name, containing the letters “arh4rent”, is confusingly similar to Complainant’s mark because it comprises the same letters as Complainant’s AH4R trademark. Further, Respondent offers identical services as Complainant via the Domain Name, thereby infringing Complainant’s trademark rights.
(ii) Rights or legitimate interests
Complainant states that the Domain Name was purchased on July 22, 2021, more than six years after Complainant began using the AH4R mark in commerce and long after Complainant had obtained significant success. Even though the Domain Name has a privacy protection block on it, the Domain Name serves as a redirect to a company reportedly called American Rental Homes, LLC. The website located at the Domain Name uses Complainant’s AH4R trademark to attract consumers looking for Complainant. Complainant submits that in an attempt to trade on the goodwill created by Complainant, Respondent’s website uses the confusingly similar Domain Name as a redirect.
Complainant states that the domain name
Complainant states that a prima facie showing that Respondent does not have rights or legitimate interests in the Domain Name within the meaning of paragraph 4(a) of the Policy may be shown by the following evidence:
- Respondent is not authorized by Complainant to use the Domain Name. Complainant has never consented to use of the Domain Name by Respondent;
- Complainant’s trade and service marks are known. Complainant is well-known by professionals and companies in the rental home industry. It is also known by its large customer base, potential customers and investors, and has incontestable federal trademark registrations protecting its marks;
- There is no indication that Respondent is known under the Domain Name. Respondent is not known by the Domain Name. Respondent just acquired the Domain Name approximately one month ago on July 21, 2021 and further just acquired the Domain Name of its purported company name less than a month ago on July 15, 2021. Respondent is not known by “arh4rent”;
- The Domain Name incorporates Complainant’s trade and service mark. The Domain Name is confusingly similar to Complainant’s trademark as it comprises all of the letters of AH4R and serves as “bait” to attract customers to Respondent’s sites.
Complainant asserts that because the Domain Name is confusingly similar to Complainant’s AH4R mark and misleads consumers seeking Complainant’s site at the domain name
(iii) Registered and used in bad faith
Complainant submits that Respondent registered and is using the Domain Name in bad faith. Complainant is informed and believes that the acts complained of have been undertaken with full knowledge of Complainant’s rights in and to the AH4R mark and with the willful and deliberate intent to cause confusion, mistake and deception among members of the relevant public and to trade on the goodwill associated with Complainant. The fact that Respondent is allegedly in the business of providing rental homes means Respondent is familiar with Complainant. Complainant has submitted evidence that it has a significant presence in Texas, where Respondent is allegedly located and providing its services. Complainant owns 9,000 properties in Texas including properties in the cities of Houston, San Antonio, Dallas, Austin and the surrounding suburbs.
Additionally, Complainant states it has an obligation to protect its valuable goodwill and strictly enforces trademark abuses in order to protect its reputation and its business. According to Complainant, the only purpose for purchasing the Domain Name is Respondent’s ability to confuse consumers and usurp the goodwill and notoriety associated with Complainant. Respondent has intentionally attempted to attract, for commercial gain, Internet users to the offending website, by creating a likelihood of confusion with Complainant’s AH4R mark as to the source, sponsorship, affiliation, or endorsement of the website or location or of the services on the website.
Complainant contends that taking into consideration (i) the high degree of distinctiveness of the AH4R mark, (ii) the fact that Complainant has been making exclusive use of the AH4R mark in connection with rental home services for well over 6 years, (iii) the degree of consumer recognition of the AH4R mark as a consequence of Complainant’s significant success, extensive use and promotion of its trademarks, (iv) the intention of Respondent in adopting and using the AH4R mark and other Complainant trademarks, and (v) the actual association in the minds of consumers between Complainant AH4R mark and Respondent’s unauthorized use of the AH4R mark constitutes trademark infringement and cybersquatting, among other claims. Complainant asserts these acts have caused and will continue to cause irreparable and immediate injury to Complainant if this Domain Name is not transferred.
B. RespondentRespondent did not reply to Complainant’s contentions.
6. Discussion and FindingsIn order to succeed on its Complaint, Complainant must demonstrate that the three elements set forth in paragraph 4(a) of the Policy have been satisfied. These elements are that:
(i) the Domain Name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights;
(ii) Respondent has no rights or legitimate interests in respect of the Domain Name; and
(iii) Respondent has registered and is using the Domain Name in bad faith.
Complainant has demonstrated that it has well-established rights in its AH4R trademarks, through registration and use. The Panel finds that the Domain Name incorporates the distinctive AH4R mark in its entirety, while adding an “h” and spelling out the word “rent”. Despite these changes, this presentation in the Domain Name does not avoid confusing similarity with Complainant’s distinctive AH4R mark.
The Domain Name starts with the letter “a”, which is not descriptive in any sense of the services offered under Complainant’s AH4R mark, and also includes the numeral “4”, instead of spelling out “four”. Thus, the overall impression given by the Domain Name creates confusing similarity. See section 1.7 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), which states “where at least a dominant feature of the relevant mark is recognizable in the domain name, the domain name will normally be considered confusingly similar to that mark for purposes of UDRP standing”.
Accordingly, the Panel finds that the Domain Name is confusingly similar to a trademark in which Complainant has rights in accordance with paragraph 4(a)(i) of the Policy.
B. Rights or Legitimate InterestsRegarding the second element of the Policy, section 2.1 of the WIPO Overview 3.0, states, “where a complainant makes out a prima facie case that the respondent lacks rights or legitimate interests, the burden of production on this element shifts to the respondent to come forward with relevant evidence demonstrating rights or legitimate interests in the domain name. If the respondent fails to come forward with such relevant evidence, the complainant is deemed to have satisfied the second element”.
Here, the Panel determines that Complainant has made out a prima facie case, while Respondent has failed to reply to the Complaint. The Panel finds that Complainant has not authorized Respondent to use Complainant’s AH4R trademarks; that Respondent is not commonly known by the Domain Name; that Respondent has not used the Domain Name for a legitimate noncommercial or fair use, nor used it in connection with a bona fide offering of goods or services. Instead, the Domain Name effectively impersonates or suggests sponsorship or endorsement by Complainant, by including the entirety of Complainant’s AH4R trademark as the dominant element in the Domain Name. Respondent has not justified why it chose to register the Domain Name, which directly targets Complainant’s AH4R marks. Further, the Domain Name redirects to Respondent’s own website, which offers services directly competing with those offered by Complainant, offering single family rental homes, and even in the same geographic region where Complainant operates, Texas. See CareerBuilder, LLC v. Finity Dev. Grp.,WIPO Case No. D2006-0615 (July 12, 2006) (contending respondent’s conduct is unauthorized satisfies prima facie requirement).
Accordingly, the Panel finds that Complainant has made a prima facie showing of Respondent’s lack of rights or legitimate interests in respect of the Domain Name, which has not been rebutted by Respondent. The Panel therefore finds that Complainant has established the second element of the Policy in accordance with paragraph 4(a)(ii).
C. Registered and Used in Bad FaithThe third element of paragraph 4(a) of the Policy requires that Complainant demonstrate that Respondent registered and is using the Domain Name in bad faith. WIPO Overview 3.0, section 3.1, states, “bad faith under the UDRP is broadly understood to occur where a respondent takes unfair advantage of or otherwise abuses a complainant’s mark”.
Here, the Panel determines that the Domain Name was registered and is being used in bad faith. Although Respondent has not submitted a reply to the Complaint, there is little doubt that Respondent, when registering the Domain Name, was aware of Complainant and its distinctive AH4R marks, and intentionally targeted those marks, when registering the Domain Name. Complainant’s earliest trademark registration predates registration of the Domain Name by more than six years, and Complainant has provided evidence of its commercial success and reputation in the home rental industry, where Respondent also apparently operates. See WIPO Overview 3.0, section 3.1.4 (“Panels have consistently found that the mere registration of a domain name that is identical or confusingly similar (particularly domain names comprising typos or incorporating the mark plus a descriptive term) to a widely-known trademark by an unaffiliated entity can by itself create a presumption of bad faith.”) Thus, given the distinctiveness of Complainant’s AH4R marks, the timing of the registration of the Domain Name years after Complainant had establish rights in its marks, and the fact that the Domain Name is so obviously connected with Complainant’s marks, the Panel considers that the only logical conclusion is that Respondent targeted Complainant and its marks when registering the Domain Name.
This point is further confirmed by Respondent’s use of the Domain Name. The Domain Name redirects to Respondent’s own website, which provides directly competing services in the same industry as Complainant – offering single family rental homes – and in one of the same geographic regions where Complainant operates. The Panel determines that Respondent has intentionally attempted to attract, for commercial gain, Internet users to his website by creating a likelihood of confusion with Complainant’s mark. Factors that support this conclusion include the nature of the Domain Name itself, which incorporates Complainant’s distinctive AH4R mark in its entirety with minor changes; the lack of Respondent’s own rights to or legitimate interests in the Domain Name; redirecting the Domain Name to Respondent’s own website, where directly competing services are offered; and the absence of any conceivable good faith use of the Domain Name by Respondent, and Respondent’s failure to respond to the Complaint.
In conclusion, the Panel determines that, for all of the above reasons, the Domain Name was registered and is being used in bad faith. Accordingly, Complainant has satisfied the third element of the Policy.
7. DecisionFor the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the Domain Name,
Christopher S. Gibson
Sole Panelist
Date: November 10, 2021