Atozone.com

The timeline behind atozone.com

Registration, the decision and the archived record of what this domain actually displayed — from public RDAP and the Internet Archive.

Result of record. The panel's reasoning and decisive facts behind each element are in the Intelligence dossier below.

DECISION AutoZone IP, LLC v. JOHN STEWART Claim Number: FA1610001698997 PARTIES Complainant is AutoZone IP, LLC (“Complainant”), represented by Sam Gunn of Alston & Bird, LLP, Georgia, USA. Respondent is JOHN STEWART (“Respondent”), Argentina. REGISTRAR AND DISPUTED DOMAIN NAME The domain name at issue is <atozone.com>, registered with eNom, Inc.. PANEL The undersigned certifies that she acted independently and impartially and that to the best of her knowledge she has no known conflict in serving as Panelist in this proceeding. Hon. Carolyn Marks Johnson sits here as Panelist. PROCEDURAL HISTORY Complainant submitted a Complaint to the Forum electronically October 19, 2016; the Forum received payment October 19, 2016. On October 21, 2016, eNom, Inc. confirmed by e-mail to the Forum that the <atozone.com> domain name is registered with eNom, Inc. and that Respondent is the current registrant of the name. eNom, Inc. verified that Respondent is bound by the eNom, Inc. registration agreement and thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”). On October 24, 2016, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 14, 2016, by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@atozone.com. Also on October 24, 2016, the Written Notice of the Complaint, notifying Respondent of the e-mail addresses served and the deadline for a Response was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts. Having received no response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default. On November 16, 2016, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Hon. Carolyn Marks Johnson to sit as Panelist. Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the Forum discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent. RELIEF SOUGHT Complainant requests that the domain name be transferred from Respondent to Complainant. PARTIES' CONTENTIONS Complainant’s Allegations in this Proceeding: Policy ¶ 4(a)(i) Complainant has rights in the AUTOZONE mark through its registration with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 1,550,569, registered on August 1, 1989). Respondent’s <atozone.com> domain name is confusingly similar to the AUTOZONE mark because it contains the mark less the single letter “u,” combined with the generic top-level domain (“gTLD”) “.com.” Policy ¶ 4(a)(ii) Respondent is not commonly known by the <atozone.com> domain name as the available WHOIS information and other evidence in the record does not suggest any nominal similarity to Respondent. Respondent fails to provide a bona fide offering of goods or services or a legitimate noncommercial or fair use because the resolving website is and has been used to provide third-party links for profit to competitors and to links unrelated to Complainant or to forward Internet users to web surveys purported to be operated by Complainant. Respondent lacks rights and legitimate interests in the <atozone.com> domain name because the domain name is a typosquatted version of Complainant’s AUTOZONE mark. Policy ¶ 4(a)(iii) Respondent demonstrates a pattern of bad faith registration and use of domain names through prior UDRP cases found against it. Respondent uses the <atozone.com> domain name in bad faith because the resolving website is being and has been used to provide third-party links for profit to competitors to and to links unrelated to Complainant or to forward Internet users to web surveys purported to be operated by Complainant. Respondent registered the <atozone.com> domain name in bad faith because it did so under conditions rendering a lack of knowledge of Complainant’s rights in the AUTOZONE mark inconceivable, by creating a typosquatted domain name, and through the use of a privacy service. Respondent’s Allegations in this Proceeding: Respondent failed to submit a formal Response. The Panel notes that Respondent created the <atozone.com> domain name November 27, 2004, some fifteen years after Complainant’s registration. FINDINGS: Complainant established rights to and legitimate interests in the mark contained in typosquatted format in the disputed domain name. Respondent has no such rights to or legitimate interests in the disputed domain name containing Complainants protected mark in any format or version. Respondent registered and uses the confusingly similar domain name in bad faith. DISCUSSION: Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable." Paragraph 4(a) of the Policy requires Complainant to prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred: (1) the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and (2) Respondent has no rights or legitimate interests in respect of the domain name; and (3) the domain name has been registered and is being used in bad faith. Given Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representations pursuant to paragraphs 5(f), 14(a) and 15(a) of the Rules and will draw such inferences as the Panel considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”). Identical or Confusingly Similar: Complainant claims rights in the AUTOZONE mark through its registration with the USPTO (e.g., Reg. No. 1,550,569, registered on August 1, 1989), which it uses for the sale of automotive parts and accesories. Complainant provided Exhibit D in support. Accordingly, the Panel finds that Complainant has rights in the AUTOZONE mark. See T-Mobile USA, Inc. dba MetroPCS v. Ryan G Foo / PPA Media Services, FA 1627542 (Forum Aug. 9, 2015) (finding that Complainant has rights in the METROPCS mark through its registration with the United States Patent and Trademark Office.). Complainant argues that Respondent’s <atozone.com> domain name is confusingly similar to the AUTOZONE mark because it contains the mark less the single letter “u,” combined with the gTLD “.com.” The Panel finds the <atozone.com> domain name to be confusingly similar to the AUTOZONE mark. See Wells Fargo & Company v. VALERIE CARRINGTON, FA 1621718 (Forum July 2, 2015) (finding that the <wllsfago.com> domain name is confusingly similar to the WELLS FARGO mark as the domain name merely omits the “e” and “r” from the mark while adding the “.com” gTLD suffix.). Respondent makes no contentions relative to Policy ¶ 4(a)(i). The Panel finds that Respondent registered a domain name using Complainant’s protected mark in its entirety and the domain name is confusingly similar to Complainant’s protected mark; Complainant satisfied the elements of ICANN Policy ¶ 4(a)(i). Rights or Legitimate Interests: Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), and then the burden of proof shifts to Respondent to show it does have such rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name); see also AOL LLC v. Gerberg, FA 780200 (Forum Sept. 25, 2006) (“Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.”). Complainant alleges that Respondent is not commonly known by the <atozone.com> domain name as the available WHOIS information and other evidence in the record do not suggest nominal similarity with Respondent. The Panel notes that the available WHOIS information lists “JOHN STEWART” as Registrant. No evidence permits the Panel to make any finding but that Respondent is not commonly known by the <atozone.com> domain name. See Chevron Intellectual Property LLC v. Fred Wallace, FA1506001626022 (Forum July 27, 2015) (finding that the respondent was not commonly known by the <chevron-europe.com> domain name under Policy ¶ 4(c)(ii), as the WHOIS information named “Fred Wallace” as registrant of the disputed domain name). Complainant contends that Respondent fails to use the <atozone.com> domain name to provide a bona fide offering of goods or services or a legitimate noncommercial or fair use because the resolving website is being and has been used to provide third-party links for profit to competitors to and to links unrelated to Complainant or to forward Internet users to web surveys purported to be operated by Complainant. Complainant provides screenshots of these uses in Exhibits F, G, and H. This evidence provides support for findings that Respondent does not provide a bona fide offering of goods or services nor a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(i) and Policy ¶ 4(c)(iii). See Danbyg Ejendomme A/S v. lb Hansen / guerciotti, FA1504001613867 (Forum June 2, 2015) (finding that the respondent had failed to provide a bona fide offering of goods or services, or a legitimate noncommercial or fair use of the disputed domain name where the disputed domain name resolved to a website that offered both competing hyperlinks and hyperlinks unrelated to the complainant’s business); see also Homer TLC, Inc. v. Wang, FA 1336037 (Forum Aug. 23, 2010) (holding that, where a disputed domain name purports to offer Internet users a gift card as compensation for filling out surveys, the respondent’s use of the disputed domain name amounts to neither a bona fide offering of goods or services under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii)). Further, Complainant claims that Respondent lacks rights and legitimate interests in the <atozone.com> domain name because the domain name is a typosquatted version of Complainant’s AUTOZONE mark. The dropping of a single letter is a form of typosquatting; Respondent lacks rights and legitimate interests in the domain name. See Microsoft Corp. v. Domain Registration Philippines, FA 877979 (Forum Feb. 20, 2007) (concluding that by registering the <microssoft.com> domain name, the respondent had “engaged in typosquatting, which provides additional evidence that [the] respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii).”) Respondent makes no contentions relative to Policy ¶ 4(a)(ii). The Panel finds that Respondent has no rights to or legitimate interests in the disputed domain name containing Complainant’s protected mark in typosquatted format; Complainant satisfied the elements of ICANN Policy ¶ 4(a)(ii). Registration and Use in Bad Faith: Complainant claims that Respondent demonstrates a pattern of bad faith registration and use of domain names through prior UDRP cases found against it. Complainant claims that the available WHOIS information identifies Respondent as a “John Stewart,” with a contact e-mail address of “john@turbo-hosting.com.” Complainant provided the WHOIS information for <turbo-hosting.com>, in Exhibit J, which identifies the registrant there as “John Stewart Last” of “Dragon Domains Limited.” Complainant provided, in Exhibit L, prior UDRP decisions in which “John Stewart Last” and/or “Dragon Domains Limited” are named respondents in order to demonstrate that Respondent has a history of bad faith registration and use of domain names. Complainant established sufficiently that Respondent is the same party as the respondent in one or more of the provided cases; Respondent demonstrates a pattern of bad faith registration and use according to Policy ¶ 4(b)(ii). See Fandango, LLC v. 21562719 Ont Ltd, FA1209001464081 (Forum November 2, 2012) (“Respondent’s past conduct and UDRP history establishes a pattern of registered domain names in bad faith under Policy ¶ 4(b)(ii).”). Complainant contends that Respondent uses the <atozone.com> domain name in bad faith because the resolving website is being and has been used to provide third-party links for profit to competitors to Complainant and to links unrelated to Complainant or to forward Internet users to web surveys purported to be operated by Complainant. Complainant provided screenshots of these uses in Exhibits F, G, and H. This Panel finds this evidence sufficient to support findings that Respondent uses the domain name in bad faith according to Policy ¶ 4(b)(iv). See Capital One Financial Corp. v. DN Manager / Whois-Privacy.Net Ltd, FA1504001615034 (Forum June 4, 2015) (holding that the respondent’s use of the <capitaloneonebank.com> domain name to display links to the complainant’s competitors, such as Bank of America, Visa, Chase and American Express constituted bad faith pursuant to Policy ¶ 4(b)(iv)); see also Dovetail Ventures, LLC v. Klayton Thorpe, FA1506001625786 (Forum August 2, 2015) (holding that the respondent had acted in bad faith under Policy ¶ 4(b)(iv), where it used the disputed domain name to host a variety of hyperlinks, unrelated to the complainant’s business, through which the respondent presumably commercially gained); see also Capital One Financial Corp. v. Mai Erne / Hara Partners, FA1505001617710 (Forum June 12, 2015) (“Here, the Panel agrees that Internet users’ completion of the fields included on the resolving site in question is equivalent to a survey, and conjures a similar presumed reward/payoff in the minds of misled Internet users and therefore is an indication of Policy ¶ 4(b)(iv) bad faith.”). Complainant argues that Respondent registered the <atozone.com> domain name in bad faith because it did so under conditions rendering a lack of knowledge of Complainant’s rights in the AUTOZONE mark inconceivable. Complainant urges that Respondent had such knowledge based upon the fame of the AUTOZONE mark and Respondent’s use of the <atozone.com> domain name. This Panel finds that the evidence demonstrates that Respondent registered the domain name with actual knowledge of Complainant’s rights in the AUTOZONE mark, and finds such registration to be in bad faith. See Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum Feb. 6, 2014) (“The Panel notes that although the UDRP does not recognize ‘constructive notice’ as sufficient grounds for finding Policy ¶ 4(a)(iii) bad faith, the Panel here finds actual knowledge through the name used for the domain and the use made of it.”). Complainant maintains that Respondent registered the <atozone.com> domain name in bad faith because it did so by creating a typosquatted domain name. This Panel agrees that the domain name was created through typosquatting; which also supports a finding of bad faith registration. See Under Armour, Inc. v. JEFF RANDALL, FA1410001585022 (Forum November 18, 2014) (finding that the respondent’s <unerarmour.com> domain name constitutes typosquatting of the complainant’s UNDER ARMOUR mark, which is evidence of bad faith pursuant to Policy ¶ 4(a)(iii)). The Panel notes as well that Respondent engaged a privacy service in the registration of the <atozone.com> domain name, and in doing so withheld identifying information. The consensus view among panels is that use of a privacy service, without more, cannot reach the threshold of bad faith registration and use. See WWF-World Wide Fund for Nature aka WWF International v. Moniker Online Services LLC and Gregory Ricks, D2006-0975 (WIPO November 1, 2006) (finding use of proxy registration service does not of itself indicate bad faith; there are many legitimate reasons for proxy registration services); see also Divex Limited v. ZJ, Sam Chang and Tim NG, D2007-0861 (WIPO September 21, 2007) (finding privacy services may be justified by the need to avoid spam and identity theft). However, the totality of the circumstances, which surround a respondent’s engagement of a privacy service, may give rise to a finding of bad faith registration and use. See, e.g., HSBC Finance Corporation v. Clear Blue Sky Inc. and Domain Manager, D2007-0062 (WIPO June 4, 2007) (finding a change of privacy service after notice of complaint indicative of bad faith); see also Sermo, Inc. v. CatalystMD, LLC, D2008-0647 (WIPO July 2, 2008) (stating that use of privacy shield can be “treated as evidence of bad faith . . . when serial registrants use privacy shields to mask each registrant’s actual date of registration”). Therefore, this Panel agrees that Respondent utilized a privacy shield in a manner, which materially adversely affected or obscured the facts of this proceeding, specifically creating the rabbit trail to hide identity, and this Panel finds that Respondent registered and used the <atozone.com> domain name in bad faith under Policy ¶ 4(a)(iii). Respondent makes no contentions relative to Policy ¶ 4(a)(iii). The Panel finds that Respondent registered and used the disputed domain name in bad faith; Complainant satisfied the elements of ICANN Policy ¶ 4(a)(iii). DECISION Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED. Accordingly, it is Ordered that the <atozone.com> domain name be TRANSFERRED from Respondent to Complainant. Hon. Carolyn Marks Johnson, Panelist Dated: November 29, 2016 Click Here to return to the main Domain Decisions Page. Click Here to return to our Home Page

Source of record: FORUM . Reproduced for research; FORUM is the authoritative source.