DatingDirect.com Limited v. LST ltd c/o Mr. Mehmet Izgol
Claim Number: FA0910001288619
Complainant is DatingDirect.com
Limited (“Complainant”), represented by Adam Taylor of Adlex Solicitors,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <datingdirecttime.com>, registered with Easyspace Ltd.
The undersigned certifies that she has 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 as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically October 9, 2009; the National Arbitration Forum received a hard copy of the Complaint October 12, 2009.
On October 21, 2009, Easyspace Ltd. confirmed by e-mail to the National Arbitration Forum that the <datingdirecttime.com> domain name is registered with Easyspace Ltd. and that Respondent is the current registrant of the name. Easyspace Ltd. verified that Respondent is bound by the Easyspace Ltd. registration agreement and thereby has agreed to resolve domain-name disputes brought by third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy").
On October 28, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of November 17, 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@datingdirecttime.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On November 20, 2009, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Hon. Carolyn Marks Johnson to sit 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 name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. The domain name Respondent registered, <datingdirecttime.com>, is confusingly similar to Complainant’s DATING DIRECT mark.
2. Respondent has no rights to or legitimate interests in the <datingdirecttime.com> domain name.
3. Respondent registered and used the <datingdirecttime.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, DatingDirect.com Limited, provides international online dating agency service for singles seeking friendships and relationships. Complainant launched its <datingdirect.com> website in 1999. Since 1999, Complainant has operated under its DATING DIRECT mark. Complainant holds a trademark registration with the United Kingdom Patent Office (“UKPO”) for its DATING DIRECT mark (Reg. No. 2,319,425 issued June 16, 2006).
Respondent, LST ltd c/o Mr. Mehmet Izgol, registered the <datingdirecttime.com> domain name November 22, 2008. The disputed domain name resolves to a parked website featuring a directory of sponsored links to online dating websites competing with the Complainant, including a link to the Complainant’s own website.
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."
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(e), 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 (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 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.
Previous panels have found that a complainant establishes rights in the mark through the registration of the mark with a governmental trademark authority. Therefore, the Panel finds Complainant established rights in the DATING DIRECT mark through registration of the mark with the UKPO (Reg. No. 2,319,425 issued June 16, 2006) pursuant to Policy ¶ 4(a)(i). See DatingDirect.com Limited v. Turner, FA 349013 (Nat. Arb. Forum Dec. 16, 2004) (finding that the panel recognizes the distinctive nature of the complainant’s DATINGDIRECT.COM mark through registration with the United Kingdom Patent Office); see also The Royal Bank of Scot. Group plc v. TRB, FA 622345 (Nat. Arb. Forum Feb. 22, 2006) (“The Panel accepts Complainant’s registration of the THE ROYAL BANK OF SCOTLAND mark with the United Kingdom Patent Office as evidence of Complainant’s rights in the mark pursuant to Policy ¶ 4(a)(i).”).
Complainant alleges that Respondent’s <datingdirecttime.com> domain name is confusingly similar to Complainant’s DATING DIRECT mark. The disputed domain name adds the generic term “time” and the generic top-level domain (“gTLD”) to Complainant’s DATING DIRECT mark, while also removing the space between the terms in Complainant’s mark. The Panel finds the removal of a space and the addition of a generic term and gTLD are insufficient to adequately distinguish the disputed domain name from Complainant’s mark. See Diesel v. LMN, FA 804924 (Nat. Arb. Forum Nov. 7, 2006) (finding <vindiesel.com> to be identical to complainant’s mark because “simply eliminat[ing] the space between terms and add[ing] the generic top-level domain (“gTLD”) ‘.com’ … [is] insufficient to differentiate the disputed domain name from Complainant’s VIN DIESEL mark under Policy ¶ 4(a)(i)”); see also Sutton Group Fin. Servs. Ltd. v. Rodger, D2005-0126 (WIPO June 27, 2005) (finding that the domain name <suttonpromo.com> is confusingly similar to the SUTTON mark because the addition of descriptive or non-distinctive elements to the distinctive element in a domain name is immaterial to the analysis under Policy ¶ 4(a)(i)); see also Google Inc. v. Xtraplus Corp., D2001-0125 (WIPO Apr. 16, 2001) (finding that the respondent’s domain names were confusingly similar to Complainant’s GOOGLE mark where the respondent merely added common terms such as “buy” or “gear” to the end); see also Reese v. Morgan, FA 917029 (Nat. Arb. Forum Apr. 5, 2007) (finding that the mere addition of the generic top-level domain “.com” is insufficient to differentiate a disputed domain name from a mark).
Therefore, the Panel finds that Respondent’s <datingdirecttime.com> domain name is confusingly similar to Complainant’s DATING DIRECT mark pursuant to Policy ¶ 4(a)(i).
The Panel finds that Complainant satisfied the elements of ICANN Policy ¶ 4(a)(i).
Complainant contends that Respondent lacks all rights and legitimate interests in the disputed domain name. Under Policy ¶ 4(a)(ii), if the complainant makes a prima facie case against the respondent, the respondent then has the burden of showing that it does have rights to or legitimate interests in the disputed domain name. Respondent failed to submit a Response in this proceeding. The Panel finds that Complainant made a prima facie case under 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 Vanguard Group, Inc. v. Collazo, FA 349074 (Nat. Arb. Forum Dec. 1, 2004) (finding that because Respondent failed to submit a Response, “Complainant’s submission has gone unopposed and its arguments undisputed. In the absence of a Response, the Panel accepts as true all reasonable allegations . . . unless clearly contradicted by the evidence.”). However, this Panel examines the evidence in the record before making a final determination.
The WHOIS information lists the domain name registrant as “LST ltd c/o Mr. Mehmet Izgol.” However, Respondent has offered no evidence to further suggest that Respondent is commonly known by the <datingdirecttime.com> domain name. Moreover, Complainant asserts that Respondent is not authorized to use the <datingdirecttime.com> domain name. Therefore, the Panel finds that Respondent is not commonly known by the <datingdirecttime.com> domain name pursuant to Policy ¶ 4(c)(ii). See Braun Corp. v. Loney, FA 699652 (Nat. Arb. Forum July 7, 2006) (concluding that the respondent was not commonly known by the disputed domain names where the WHOIS information, as well as all other information in the record, gave no indication that the respondent was commonly known by the disputed domain names, and the complainant had not authorized the respondent to register a domain name containing its registered mark); see also Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003) (stating “nothing in Respondent’s WHOIS information implies that Respondent is ‘commonly known by’ the disputed domain name” as one factor in determining that Policy ¶ 4(c)(ii) does not apply).
Respondent’s <datingdirecttime.com> domain name resolves to a parked page that contains a directory of hyperlinks to online dating services that compete with Complainant; as well as to Complainant’s own website. Respondent likely receives click-through fees from the aforementioned hyperlinks. The Panel finds that Respondent’s use of the disputed domain name is not a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use of the disputed domain name under Policy ¶ 4(c)(iii). See ALPITOUR S.p.A. v. Albloushi, FA 888651 (Nat. Arb. Forum Feb. 26, 2007) (rejecting the respondent’s contention of rights and legitimate interests in the <bravoclub.com> domain name because the respondent was merely using the domain name to operate a website containing links to various competing commercial websites, which the panel did not find to be a use in connection with a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii)); see also Skyhawke Techns., LLC v. Tidewinds Group, Inc., FA 949608 (Nat. Arb. Forum May 18, 2007) (“Respondent is using the <skycaddy.com> domain name to display a list of hyperlinks, some of which advertise Complainant and its competitors’ products. The Panel finds that this use of the disputed domain name 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).”).
The Panel finds Complainant satisfied the elements of ICANN Policy ¶ 4(a)(ii).
Complainant contends that Respondent uses the <datingdirecttime.com>
domain name to resolve to a website containing hyperlinks to Complainant’s
competitors in the online dating services industry. Internet users interested in using
Complainant’s online dating services, may instead use a competitor’s online
dating service because of Respondent’s use of a confusingly similar disputed
domain name. The Panel finds that Respondent’s
use of the <datingdirecttime.com> domain name disrupts
Complainant’s online dating services business, which constitutes bad faith
registration and use under Policy ¶ 4(b)(iii). See Am. Airlines, Inc. v.
In these circumstances, the Panel is permitted to make an inference that Respondent receives click-through fees from the use of the aforementioned hyperlinks. Respondent is attempting to profit by creating a likelihood of confusion as to Complainant’s affiliation with the disputed domain name and the resolving links to competing online dating services. Therefore, the Panel finds that Respondent’s use of the disputed domain name constitutes bad faith registration and use under Policy ¶ 4(b)(iv). See Zee TV USA, Inc. v. Siddiqi, FA 721969 (Nat. Arb. Forum July 18, 2006) (finding that the respondent engaged in bad faith registration and use by using a domain name that was confusingly similar to the complainant’s mark to offer links to third-party websites that offered services similar to those offered by the complainant); see also Univ. of Houston Sys. v. Salvia Corp., FA 637920 (Nat. Arb. Forum Mar. 21, 2006) (“Respondent is using the disputed domain name to operate a website which features links to competing and non-competing commercial websites from which Respondent presumably receives referral fees. Such use for Respondent’s own commercial gain is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv).”).
The Panel finds that Complainant satisfied the elements of ICANN 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 <datingdirecttime.com> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Carolyn Marks Johnson, Panelist
Dated: December 7, 2009.
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page
National
Arbitration Forum