Uber-polska.com

The timeline behind uber-polska.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 Uber Technologies, Inc. v. Sebastian Smyrek Claim Number: FA2206002000364 PARTIES Complainant is Uber Technologies, Inc. (“Complainant”), represented by Hope V. Shovein of Brooks Kushman P.C., Michigan, USA. Respondent is Sebastian Smyrek (“Respondent”), Poland. REGISTRAR AND DISPUTED DOMAIN NAME The domain name at issue is <uber-polska.com>, registered with NameCheap, Inc.. PANEL The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding. Richard Hill as Panelist. PROCEDURAL HISTORY Complainant submitted a Complaint to the Forum electronically on June 14, 2022; the Forum received payment on June 14, 2022. On June 15, 2022, NameCheap, Inc. confirmed by e-mail to the Forum that the <uber-polska.com> domain name is registered with NameCheap, Inc. and that Respondent is the current registrant of the name. NameCheap, Inc. has verified that Respondent is bound by the NameCheap, Inc. registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”). On June 22, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 12, 2022 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@uber-polska.com. Also on June 22, 2022, 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. Respondent did however send an email to the Forum, see below. On July 14, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Richard Hill as Panelist. Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the Forum has 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 A. Complainant Complainant states that it is a leading application-based platform for transportation and other services. Complainant has rights in the UBER mark through its registration of the mark in the United States in 2011. The mark is registered elsewhere around the world and it is famous. Complainant alleges that the disputed domain name is virtually identical and confusingly similar to its UBER mark because it incorporates the mark in its entirety and merely adds the geographic term “polska” (for Poland), a hyphen, and the “.com” generic top-level domain (“gTLD”). According to Complainant, Respondent has no rights or legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name and Complainant has not authorized or licensed to Respondent any rights in the UBER mark. Additionally, Respondent does not use the disputed domain name for any bona fide offering of goods or services nor any legitimate noncommercial or fair use. Instead, the disputed domain name resolves to a website that mimics Complainant’s legitimate website: Respondent continuously updates its site so that it is a current copy of the look and feel of Complainant’s site, changing as Complainant changes. Furthermore, the resolving website displays click-through advertising links both to competing and unrelated products and services; the website also promotes Respondent’s YouTube channel, where Respondent’s videos include click-through advertising, generating additional advertising revenue for Respondent. Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith. Respondent registered the disputed domain name in order to divert customers for commercial gain. Respondent’s use of a disclaimer does not preclude a finding of bad faith. Respondent registered the disputed domain name with actual knowledge of Complainant’s rights in the UBER mark. B. Respondent Respondent failed to submit a Response in this proceeding. In its email to the Forum, Respondent states that the intent of its website was to provide information on the taxi industry, describing the range of services of various companies; it did not display criticism. Respondent concludes: “Nevertheless, although uber-polska.com has never even attempted to impersonate Uber, it has been removed. Anything else I can help?” FINDINGS For the reasons set forth below, the Panel will not make any findings of fact. Nevertheless the Panel notes, obiter dictum, that Complainant has presented ample evidence showing that the resolving website displays click-through advertising links both to competing and unrelated products and services; the website also promotes Respondent’s YouTube channel, where Respondent’s videos include click-through advertising, generating additional advertising revenue for Respondent. DISCUSSION Paragraph 4(a) of the Policy requires that Complainant must 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. 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." The Panel interprets Respondent’s email to the Forum as consent to transfer the disputed domain name. Thus, in the present case, the parties have both asked for the domain name to be transferred to the Complainant. In accordance with a general legal principle governing arbitrations as well as national court proceedings, this Panel holds that it cannot act nec ultra petita nec infra petita, that is, that it cannot issue a decision that would be either less than requested, nor more than requested by the parties. Since the requests of the parties in this case are identical, the Panel has no scope to do anything other than to recognize the common request, and it has no mandate to make findings of fact or of compliance (or not) with the Policy. See Malev Hungarian Airlines, Ltd. v. Vertical Axis Inc., FA 212653 (Forum Jan. 13, 2004); see also Boehringer Ingelheim Int’l GmbH v. Modern Ltd. – Cayman Web Dev., FA 133625 (Forum Jan. 9, 2003) (transferring the domain name registration where the respondent stipulated to the transfer); see also Disney Enters., Inc. v. Morales, FA 475191 (Forum June 24, 2005) (“[U]nder such circumstances, where Respondent has agreed to comply with Complainant’s request, the Panel felt it to be expedient and judicial to forego the traditional UDRP analysis and order the transfer of the domain names.”). Identical and/or Confusingly Similar For the reasons set forth above, the Panel will not analyze this element of the Policy. Rights or Legitimate Interests For the reasons set forth above, the Panel will not analyze this element of the Policy. Registration and Use in Bad Faith For the reasons set forth above, the Panel will not analyze this element of the Policy. DECISION Given the common request of the Parties, it is Ordered that the <uber-polska.com> domain name be TRANSFERRED from Respondent to Complainant. Richard Hill, Panelist Dated: July 15, 2022 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.