RealtyTrac, Inc. v. K H
Claim Number: FA0903001253146
Complainant is RealtyTrac,
Inc. (“Complainant”), represented by CitizenHawk,
Inc.,
REGISTRAR AND DISPUTED DOMAIN
NAMES
The domain names at issue are <ealtytrac.com>, <eealtytrac.com>, <reaktytrac.com>, <realrytrac.com>, <realtttrac.com>, <realtutrac.com>, <realtyrrac.com>, <realtyteac.com>, <realtytrav.com>, <realtytrsc.com>, <realtyttac.com>, <realtyyrac.com>, <realyytrac.com>, <resltytrac.com>, <rraltytrac.com>, <rwaltytrac.com>, and <tealtytrac.com>, registered with Godaddy.com, Inc.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Honorable Paul A. Dorf (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on March 19, 2009; the National Arbitration Forum received a hard copy of the Complaint on March 19, 2009.
On March 19, 2009, Godaddy.com, Inc. confirmed by e-mail to the National Arbitration Forum that the <ealtytrac.com>, <eealtytrac.com>, <reaktytrac.com>, <realrytrac.com>, <realtttrac.com>, <realtutrac.com>, <realtyrrac.com>, <realtyteac.com>, <realtytrav.com>, <realtytrsc.com>, <realtyttac.com>, <realtyyrac.com>, <realyytrac.com>, <resltytrac.com>, <rraltytrac.com>, <rwaltytrac.com>, and <tealtytrac.com> domain names are registered with Godaddy.com, Inc. and that Respondent is the current registrant of the names. Godaddy.com, Inc. has verified that Respondent is bound by the Godaddy.com, Inc. registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy").
On March 20, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of April 9, 2009 by which Respondent could file a response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent's registration as technical, administrative and billing contacts, and to postmaster@ealtytrac.com, postmaster@eealtytrac.com, postmaster@reaktytrac.com, postmaster@realrytrac.com, postmaster@realtttrac.com, postmaster@realtutrac.com, postmaster@realtyrrac.com, postmaster@realtyteac.com, postmaster@realtytrav.com, postmaster@realtytrsc.com, postmaster@realtyttac.com, postmaster@realtyyrac.com, postmaster@realyytrac.com, postmaster@resltytrac.com, postmaster@rraltytrac.com, postmaster@rwaltytrac.com, and postmaster@tealtytrac.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On April 17, 2009, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Honorable Paul A. Dorf (Ret.) as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration 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." Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the National Arbitration 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 names be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <ealtytrac.com>, <eealtytrac.com>, <reaktytrac.com>, <realrytrac.com>, <realtttrac.com>, <realtutrac.com>, <realtyrrac.com>, <realtyteac.com>, <realtytrav.com>, <realtytrsc.com>, <realtyttac.com>, <realtyyrac.com>, <realyytrac.com>, <resltytrac.com>, <rraltytrac.com>, <rwaltytrac.com>, and <tealtytrac.com> domain names are confusingly similar to Complainant’s REALTYTRAC mark.
2. Respondent does not have any rights or legitimate interests in the <ealtytrac.com>, <eealtytrac.com>, <reaktytrac.com>, <realrytrac.com>, <realtttrac.com>, <realtutrac.com>, <realtyrrac.com>, <realtyteac.com>, <realtytrav.com>, <realtytrsc.com>, <realtyttac.com>, <realtyyrac.com>, <realyytrac.com>, <resltytrac.com>, <rraltytrac.com>, <rwaltytrac.com>, and <tealtytrac.com> domain names.
3. Respondent registered and used the <ealtytrac.com>, <eealtytrac.com>, <reaktytrac.com>, <realrytrac.com>, <realtttrac.com>, <realtutrac.com>, <realtyrrac.com>, <realtyteac.com>, <realtytrav.com>, <realtytrsc.com>, <realtyttac.com>, <realtyyrac.com>, <realyytrac.com>, <resltytrac.com>, <rraltytrac.com>, <rwaltytrac.com>, and <tealtytrac.com> domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, RealtyTrac, Inc., was founded in 1996 and has become the leading marketplace using the <realtytrac.com> domain name for consumers, investors, and real estate professionals to locate, evaluate, buy, and sell properties. Complainant has spent significant monies in advertising and promotion since 1996 under its REALTYTRAC mark, and has registered its REALTYTRAC mark with the United States Patent and Trademark Office (“USPTO”) (i.e. Reg. No. 3,027,046 issued December 13, 2005, filed April 28, 2004).
Respondent began registering the disputed domain names on November 25, 2003. The disputed domain names resolve to websites that feature third-party links and advertising for Complainant’s direct competitors.
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."
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(e), 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 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 (Nat. Arb. 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.”).
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.
Complainant has submitted evidence of its trademark
registrations with the USPTO for its REALTYTRAC mark. The Panel therefore finds that Complainant
has sufficient rights in the mark under Policy ¶ 4(a)(i). See Morgan Stanley v. Fitz-James, FA
571918 (Nat. Arb. Forum Nov. 29, 2005) (finding from a preponderance of the
evidence that the complainant had registered its mark with national trademark
authorities, the Panel determined that “such registrations present a prima facie case of Complainant’s rights
in the mark for purposes of Policy ¶ 4(a)(i).”); see also Enter. Rent-A-Car Co. v. David Mizer Enters., Inc., FA 622122 (Nat. Arb.
Forum Apr. 14, 2006) (finding that the complainant’s registration of the
ENTERPRISE, ENTERPRISE RENT-A-CAR, and ENTERPRISE CAR SALES marks with the
USPTO satisfied the requirement of demonstrating rights in the mark under
consideration pursuant to Policy ¶ 4(a)(i)).
Complainant has also asserted common law rights in the REALTYTRAC mark through its continuous use of the mark in commerce since its founding in 1996. Complainant has asserted its substantial advertising revenue and corporate growth since that time, and that it has become one of the predominant real estate tracking services. The Panel therefore finds that Complainant has demonstrated sufficient secondary meaning in the mark to establish its common law rights in the mark under Policy ¶ 4(a)(i) dating back to 1996. See Quality Custom Cabinetry, Inc. v. Cabinet Wholesalers, Inc., FA 115349 (Nat. Arb. Forum Sept. 7, 2002) (finding that the complainant established common law rights in the mark through continuous use of the mark since 1995 for the purpose of Policy ¶ 4(a)(i)); see also Nat’l Ass’n of Prof’l Baseball Leagues v. Zuccarini, D2002-1011 (WIPO Jan. 21, 2003) (finding that the complainant had provided evidence that it had valuable goodwill in the <minorleaguebaseball.com> domain name, establishing common law rights in the MINOR LEAGUE BASEBALL mark).
The <ealtytrac.com>, <eealtytrac.com>, <reaktytrac.com>, <realrytrac.com>,
<realtttrac.com>, <realtutrac.com>, <realtyrrac.com>,
<realtyteac.com>, <realtytrav.com>, <realtytrsc.com>,
<realtyttac.com>, <realtyyrac.com>, <realyytrac.com>,
<resltytrac.com>, <rraltytrac.com>, <rwaltytrac.com>,
and <tealtytrac.com> domain names contain misspelled
versions of Complainant’s REALTYTRAC mark along with the generic top-level
domain “.com.” Because misspelled marks
and added top-level domains are considered insufficient distinctions under the
Policy, the Panel finds that each of the disputed domain names is confusingly
similar to Complainant’s mark under Policy ¶ 4(a)(i). See Jerry Damson, Inc. v.
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant has asserted that Respondent lacks rights and legitimate interests in the disputed domain names. Because Complainant has set forth a sufficient prima facie case, Respondent bears the burden of demonstrating that it does have rights or legitimate interests pursuant to Policy ¶ 4(a)(ii). See Clerical Med. Inv. Group Ltd. v. Clericalmedical.com, D2000-1228 (WIPO Nov. 28, 2000) (finding that, under certain circumstances, the mere assertion by the complainant that the respondent has no right or legitimate interest is sufficient to shift the burden of proof to the respondent to demonstrate that such a right or legitimate interest does exist); see also Compagnie Generale des Matieres Nucleaires v. Greenpeace Int’l, D2001-0376 (WIPO May 14, 2001) (“Proving that the Respondent has no rights or legitimate interests in respect of the Domain Name requires the Complainant to prove a negative. For the purposes of this sub paragraph, however, it is sufficient for the Complainant to show a prima facie case and the burden of proof is then shifted on to the shoulders of Respondent. In those circumstances, the common approach is for respondents to seek to bring themselves within one of the examples of paragraph 4(c) or put forward some other reason why they can fairly be said to have a relevant right or legitimate interests in respect of the domain name in question.”).
Complainant has denied any authorization on behalf of
Respondent to use the REALTYTRAC mark in any form. What little information the Panel can
scrutinize regarding Respondent as it relates to the disputed domain names is
entirely within the registrant listing in the WHOIS domain name registration
information. However, that listing
describes the registrant as “K H.” The
Panel therefore finds that Respondent is not commonly known by the disputed
domain names under Policy ¶ 4(c)(ii). See Reese v. Morgan, FA 917029 (Nat. Arb. Forum Apr. 5,
2007) (concluding that the respondent was not commonly known by the
<lilpunk.com> domain name as there was no evidence in the record showing
that the respondent was commonly known by that domain name, including the WHOIS
information as well as the complainant’s assertion that it did not authorize or
license the respondent’s use of its mark in a domain name); see also St. Lawrence Univ. v. Nextnet Tech, FA 881234 (Nat. Arb. Forum Feb. 21,
2007) (concluding a respondent has no rights or legitimate interests in a
disputed domain name where there was no evidence in the record indicating that
the respondent was commonly known by the disputed domain name).
Respondent is using the disputed domain names to resolve to websites that include click-through links for Complainant’s competitors. The Panel presumes this activity was undertaken to acquire commercial benefit via click-through referral fees. The Panel finds that this does not constitute a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See Disney Enters., Inc. v. Kamble, FA 918556 (Nat. Arb. Forum Mar. 27, 2007) (holding that the operation of a pay-per-click website at a confusingly similar domain name was not a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii)); see also Vance Int’l, Inc. v. Abend, FA 970871 (Nat. Arb. Forum June 8, 2007) (concluding that the operation of a pay-per-click website at a confusingly similar domain name does not represent a bona fide offering of goods or services or a legitimate noncommercial or fair use, regardless of whether or not the links resolve to competing or unrelated websites or if the respondent is itself commercially profiting from the click-through fees).
Moreover, each of the disputed domain names contains a
typosquatted form of Complainant’s mark, since the mark is misspelled in some
form in each disputed domain name. The
Panel finds this sufficient evidence that Respondent lacks rights and
legitimate interests under Policy ¶ 4(a)(ii). See Microsoft Corp. v. Domain
Registration
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
The Panel finds that Respondent’s use of the corresponding
websites and disputed domain names to host competitive third-party advertisements
constitutes disruption of Complainant’s business, and therefore evidences
Respondent’s bad faith registration and use under Policy ¶ 4(b)(iii). See Mission KwaSizabantu v. Rost,
D2000-0279 (WIPO June 7, 2000) (defining “competitor” as “one who acts in
opposition to another and the context does not imply or demand any restricted
meaning such as commercial or business competitor”); see also DatingDirect.com Ltd.
v. Aston, FA 593977 (Nat. Arb. Forum Dec. 28,
2005) (“Respondent is appropriating Complainant’s mark to divert Complainant’s
customers to Respondent’s competing business.
The Panel finds this diversion is evidence of bad faith registration and
use pursuant to Policy ¶ 4(b)(iii).”).
Complainant claims that Respondent has created a likelihood
of confusion as to Complainant’s association or sponsorship of the disputed
domain names for commercial gain due to the confusingly similar disputed domain
names and corresponding websites. The
Panel agrees, and finds that Respondent has engaged in bad faith registration
and use under Policy ¶ 4(b)(iv). See Allianz of Am. Corp. v. Bond, FA 680624 (Nat. Arb. Forum
June 2, 2006) (finding bad faith registration and use under Policy ¶ 4(b)(iv)
where the respondent was diverting Internet users searching for the complainant
to its own website and likely profiting); see
also Asbury Auto. Group, Inc. v.
Finally, the Panel finds that Respondent’s aforementioned
typosquatting demonstrates sufficient evidence that Respondent engaged in bad
faith registration and use under Policy ¶ 4(a)(iii). See Canadian Tire Corp. v. domain adm’r
no.valid.email@worldnic.net 1111111111, D2003-0232 (WIPO May 22,
2003) (finding the respondent registered and used the domain name in bad
faith because the respondent “created ‘a likelihood of confusion with the
complainant’s mark as to the source, sponsorship, affiliation, or endorsement
of the Respondent’s web site or location’. . . through Respondent’s persistent
practice of ‘typosquatting’”); see also Nextel Commc’ns Inc. v. Geer, FA 477183 (Nat. Arb. Forum July 15, 2005)
(finding that the respondent’s registration and use of the <nextell.com>
domain name was in bad faith because the domain name epitomized typosquatting
in its purest form).
The Panel finds that Policy ¶ 4(a)(iii) has been satisfied.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <ealtytrac.com>, <eealtytrac.com>, <reaktytrac.com>, <realrytrac.com>, <realtttrac.com>, <realtutrac.com>, <realtyrrac.com>, <realtyteac.com>, <realtytrav.com>, <realtytrsc.com>, <realtyttac.com>, <realtyyrac.com>, <realyytrac.com>, <resltytrac.com>, <rraltytrac.com>, <rwaltytrac.com>, and <tealtytrac.com> domain name be TRANSFERRED from Respondent to Complainant.
Honorable Paul A. Dorf (Ret.), Panelist
Dated: April 24, 2009
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