Taboola.com Ltd. v. Marco Campos
Claim Number: FA2012001924354
Complainant is Taboola.com Ltd. (“Complainant”), represented by Ezra Katzen, Israel. Respondent is Marco Campos (“Respondent”), Portugal.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <taaboola.com>, registered with NameCheap, Inc.
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.
Complainant submitted a Complaint to the Forum electronically on December 9, 2020; the Forum received payment on December 9, 2020.
On December 18, 2020, NameCheap, Inc. confirmed by e-mail to the Forum that the <taaboola.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 December 21, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 11, 2021 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@taaboola.com. Also on December 21, 2020, 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 January 14, 2021, 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.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant states that it operates a leading content discovery platform: Complainant solves the “discovery problem.” While search engines help users find a result for a specific query, users necessarily miss out on what they are not searching. Complainant helps users discover things they might like, but don’t yet know exist. Since Complainant’s founding in 2007, under the TABOOLA mark, it has been building the world’s largest and most advanced discovery platform—or “search engine in reverse”—delivering personalized recommendations to over one billion unique users every month, on many of the web’s most innovative and highly-visited websites. Complainant is the world’s leading content discovery platform, serving 450 billion recommendations to over 1 billion unique visitors each month on the web's most innovative publisher sites, including NBC, USA Today, ESPN, CBS, and Fox Sports. Complainant’s global “reach” as measured by Comscore is 41.5%, ahead of Facebook and second only to Google; its US reach, at 83.9%, leads all others including Google. Complainant and its affiliates now employ over 1,300 people with offices in New York, Los Angeles, London, Paris, Madrid, Berlin, Mexico City, Tel Aviv, New Delhi, Sao Paulo, Shanghai, Tokyo, Bangkok, Beijing, Seoul, Istanbul, Hong Kong and Sydney. Complainant has rights in the TABOOLA mark through its registration in the United States in 2008.
Complainant alleges that the disputed domain name is confusingly similar to its TABOOLA mark, only differing by appending an additional “a” within the mark following the first, and the “.com” generic top-level domain (“gTLD”).
According to Complainant, Respondent lacks rights and legitimate interests in the disputed domain name as it is not commonly known by the disputed domain name and is neither an authorized user nor licensee of the TABOOLA mark. Additionally, Respondent does not use the disputed domain name for any bona fide offering of goods or services, nor for any legitimate noncommercial or fair use. Instead, Respondent diverts users to a website with parked commercial hyperlinks to competing services.
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith as Respondent disrupts Complainant’s business interest by using a confusingly similar domain name to resolve to a website that displays click-through advertising links to competing services. Additionally, Respondent uses a typosquatted version of Complainant’s TABOOLA mark, which is further evidence of bad faith. Complainant also contends that Respondent registered the disputed domain name with actual knowledge of Complainant’s rights in the TABOOLA mark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has rights in the mark TABOOLA dating back to at least 2008 and uses it to market a content discovery platform.
The disputed domain name was registered in 2020.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
Respondent is using the disputed domain names to resolve to a website that displays advertising links to services that compete with those of Complainant.
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 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.
In view of 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 draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
The disputed domain name differs from Complainant’s TABOOLA mark only by the addition of a second letter “a” following the first “a” in the mark, and the “.com” gTLD. Adding a letter to a mark along with a gTLD does not necessarily negate confusing similarity between a domain name and a mark under Policy ¶ 4(a)(i). See OpenTable, Inc. v. Above.com Domain Privacy, FA 1626187 (Forum Aug. 10, 2015 (“Respondent’s <oipentable.com> domain name is confusingly similar to the OPENTABLE mark under Policy ¶ 4(a)(i) because the disputed domain merely adds the letter ‘i’ . . . ”). Therefore, the Panel finds that the disputed domain name is confusingly similar to Complainant’s mark under Policy ¶ 4(a)(i).
Complainant has not licensed or otherwise authorized Complainant to use its mark. Respondent is not commonly known by the disputed domain name: when no response is submitted, relevant WHOIS information may demonstrate that a Respondent is not commonly known by a disputed domain name under Policy ¶ 4(c)(ii). See H-D U.S.A., LLC, v. ilyas Aslan / uok / Domain Admin ContactID 5645550 / FBS INC / Whoisprotection biz, FA 1785313 (Forum June 25, 2018) (“The publicly available WHOIS information identifies Respondent as ‘Ilyas Aslan’ and so there is no prima facie evidence that Respondent might be commonly known by either of the [<harleybot.bid> and <harleybot.com>] domain names.”). Here, the relevant WHOIS information indicates that the registrant of the disputed domain is “Marco Campos”. Therefore, the Panel finds that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(c)(ii).
The disputed domain name resolves to a web page that displays click-through advertising links, some of them to services that compete with those of Complainant. Using a disputed domain name to host a page with links to competing or unrelated websites does not constitute a bona fide offer of goods or services, nor a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (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). Thus the Panel finds that Respondent fails to use the disputed domain name to make a bona fide offer of goods or services, or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii). And the Panel finds that Respondent does not have rights or legitimate interests in the disputed domain name.
Respondent (who did not reply to Complainant’s contentions) has not presented any plausible explanation for its use of Complainant’s mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain name.
Indeed, as already noted, Respondent disrupts Complainant’s business interests by diverting Internet users from Complainant’s website to a website that displays competing advertising links. Such use of a disputed domain name can constitute bad faith registration and use under Policy ¶ 4(b)(iii) and/or (iv). See Univ. of Texas Sys. v. Smith, FA 1195696 (Forum July 7, 2008) (finding that using the resolving website to divert Internet users to the complainant’s competitors constituted bad faith registration and use under Policy ¶ 4(b)(iii)); see also See Xylem Inc. and Xylem IP Holdings LLC v. YinSi BaoHu YiKaiQi, FA1504001612750 (Forum May 13, 2015) (“The Panel agrees that Respondent’s use of the website to display products similar to Complainant’s, imputes intent to attract Internet users for commercial gain, and finds bad faith per Policy ¶ 4(b)(iv).”). Therefore, the Panel finds that Respondent registered and uses the disputed domain name in bad faith under Policy ¶¶ 4(b)(iii) and/or (iv).
Further, Respondent engaged in typosquatting when registering the disputed domain name. Typosquatting evinces bad faith under Policy ¶ 4(a)(iii). See Webster Financial Corporation and Webster Bank, National Association v. IS / ICS INC, FA 16070016833 (Forum Aug. 11, 2016) (“Typosquatting is a practice whereby a domain name registrant, such as Respondent, deliberately introduces typographical errors or misspellings into a trademark and then uses the string in a domain name.”). Thus the Panel finds that Respondent registered and uses the disputed domain name in bad faith under Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <taaboola.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: January 14, 2021
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