The One Account Limited v. Yuri Vernitsky
Claim Number: FA0910001288625
Complainant is The
One Account Limited (“Complainant”), represented by James A. Thomas, of Troutman Sanders LLP,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <oneaccounte.com>, registered with Onlinenic, 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 October 9, 2009; the National Arbitration Forum received a hard copy of the Complaint on October 12, 2009.
On October 15, 2009, Onlinenic, Inc. confirmed by e-mail to the National Arbitration Forum that the <oneaccounte.com> domain name is registered with Onlinenic, Inc. and that Respondent is the current registrant of the name. Onlinenic, Inc. has verified that Respondent is bound by the Onlinenic, 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 October 20, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of November 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@oneaccounte.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 12, 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 name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <oneaccounte.com> domain name is confusingly similar to Complainant’s THE ONE ACCOUNT mark.
2. Respondent does not have any rights or legitimate interests in the <oneaccounte.com> domain name.
3. Respondent registered and used the <oneaccounte.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, The One Account
Limited, launched ten years ago as a joint venture between Virgin Direct and
The Royal Bank of Scotland Group plc.
Complainant is one of the top mortgage providers in the
Respondent, Yuri Vernitsky, registered the <oneaccounte.com> domain name on May 21, 2009. The disputed domain name redirects Internet users to the Complainant’s official website at the <oneaccount.com> domain name.
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 asserts rights in THE ONE ACCOUNT mark through
its various trademark registrations with the OHIM (Reg. No. 3,363,835 issued
November 23, 2004) and the UKIPO (Reg. No. 2,273,357 issued June 13,
2003). The Panel finds that Complainant
has established rights in the mark sufficient for the the purposes of Policy ¶
4(a)(i).
Furthermore, it is not necessary for Complainant to have registered its
THE ONE ACCOUNT mark in the country of Respondent’s residence. See Renaissance Hotel
Holdings, Inc. v. Renaissance
Complainant contends that Respondent’s <oneaccounte.com> domain name is confusingly similar to its THE ONE ACCOUNT mark under Policy ¶ 4(a)(i). The disputed domain name incorporates the distinctive portion of Complainant’s THE ONE ACCOUNT mark with the mere omission of the spaces between the words in the mark, the omission of the article “the,” the addition of the letter “e” after “account,” and the affixation of the generic top-level domain “.com.” The Panel finds that these alterations are inconsequential for the purposes of Policy ¶ 4(a)(i). Thus, the Panel concludes that Respondent’s <oneaccounte.com> domain name is confusingly similar to Complainant’s THE ONE ACCOUNT mark under Policy ¶ 4(a)(i). See WestJet Air Ctr., Inc. v. W. Jets LLC, FA 96882 (Nat. Arb. Forum Apr. 20, 2001) (finding that the <westjets.com> domain name is confusingly similar to the complainant’s mark, where the complainant holds the WEST JET AIR CENTER mark); see also Computerized Sec. Sys., Inc. v. Hu, FA 157321 (Nat. Arb. Forum June 23, 2003) (finding that the addition of the letter “c” to the complainant’s SAFLOK mark does not distinguish the <saflock.com> domain name from the mark under Policy ¶ 4(a)(i); see also Gardline Surveys Ltd. v. Domain Fin. Ltd., FA 153545 (Nat. Arb. Forum May 27, 2003) (“The addition of a top-level domain is irrelevant when establishing whether or not a mark is identical or confusingly similar, because top-level domains are a required element of every domain name.”).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(i).
Complainant has alleged that Respondent does not have rights or legitimate interests in the <oneaccounte.com> domain name. Once Complainant makes a prima facie case in support of its allegations, the burden shifts to Respondent to prove that it does have rights or legitimate interests pursuant to Policy ¶ 4(a)(ii). The Panel finds that Complainant has made a sufficient prima facie case. Due to Respondent’s failure to respond to the Complaint, the Panel may assume that Respondent does not have rights or legitimate interests in the disputed domain name. However, the Panel will examine the record to determine whether Respondent has rights or legitimate interests in the <oneaccounte.com> domain name under Policy ¶ 4(c). See Intel Corp. v. Macare, FA 660685 (Nat. Arb. Forum Apr. 26, 2006) (finding the “complainant must first make a prima facie case that [the] respondent lacks rights and legitimate interests in the disputed domain names under Policy ¶ 4(a)(ii), and then the burden shifts to [the] respondent to show it does have rights or legitimate interests.”); see also Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO Dec. 21, 2000) (finding that failing to respond allows a presumption that the complainant’s allegations are true unless clearly contradicted by the evidence).
Respondent’s
<oneaccounte.com> domain name
redirects Internet users to Complainant’s official website resolving from the
<oneaccount.com> domain name. The Panel presumes from the
circumstances presented that Respondent receives referral fees from this
diversion scheme. Thus, the Panel concludes that Respondent is not using
the disputed domain name in connection with a bona fide offering of
goods or services or for a legitimate noncommercial or fair use under Policy ¶
4(c)(i) or (iii), respectively. See WorldPay
v. Jones, FA 1169388 (Nat. Arb. Forum May 8,
2008) (finding the respondent was not using the disputed domain name in
connection with a bona fide offering of goods or services pursuant to
Policy Par. 4(c)(i) or a legitimate noncommercial or fair use pursuant to
Policy Par. 4(c)(iii) because the respondent used the disputed domain name to
link to complainant’s website); see also
Sports
The WHOIS information identifies the registrant of the <oneaccounte.com> domain name as “Yuri Vernitsky.” Complainant asserts that Respondent is not commonly known by the disputed domain name. The Panel has not reviewed any information which controverts this contention and therefore finds that Respondent is not commonly known by the disputed domain name under 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 name where the WHOIS information, as well as 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 M. Shanken Commc’ns v. WORLDTRAVELERSONLINE.COM, FA 740335 (Nat. Arb. Forum Aug. 3, 2006) (finding that the respondent was not commonly known by the <cigaraficionada.com> domain name under Policy Par. 4(c)(ii) based on the WHOIS information and other evidence in the record).
Lastly, Respondent has engaged in the practice known as “typosquatting.” This occurs when domain names are registered with the intent of targeting Internet users who commit typographical errors. In this case, Respondent added the non-distinctive letter “e” to the end of Complainant’s mark. This practice constitutes evidence of Respondent’s lack of rights and legitimate interests under Policy ¶ 4(a)(ii). See LTD Commodities LLC v. Party Night, Inc., FA 165155 (Nat. Arb. Forum Aug. 14, 2003) (finding that the <ltdcommadities.com>, <ltdcommmodities.com>, and <ltdcommodaties.com> domain names were intentional misspellings of the complainant's LTD COMMODITIES mark and this “‘typosquatting’ is evidence that Respondent lacks rights or legitimate interests in the disputed domain names”); see also IndyMac Bank F.S.B. v. Ebeyer, FA 175292 (Nat. Arb. Forum Sept. 19, 2003) (finding that the respondent lacked rights and legitimate interests in the disputed domain names because it “engaged in the practice of typosquatting by taking advantage of Internet users who attempt to access Complainant's <indymac.com> website but mistakenly misspell Complainant's mark by typing the letter ‘x’ instead of the letter ‘c’”).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
The disputed domain name merely resolves to Complainant’s
own website. As discussed above, the Panel presumes that Respondent has
engaged in this activity solely for the receipt of commercial referral
fees. Since Respondent has not come forth with any contrary assertions,
the Panel finds that Respondent intentionally created a likelihood of confusion
as to Complainant’s affiliation with the disputed domain name for commercial
gain, and that Respondent therefore has engaged in bad faith registration and
use under Policy ¶ 4(b)(iv).
See Sports
Furthermore, the Panel has determined that Respondent has engaged in typosquatting. The Panel need only note here that typosquatting is generally considered as sufficient evidence itself of bad faith registration and use under Policy ¶ 4(a)(iii). The Panel so finds in the instant case. See Zone Labs, Inc. v. Zuccarini, FA 190613 (Nat. Arb. Forum Oct. 15, 2003) (“Respondent’s registration and use of [the <zonelarm.com> domain name] that capitalizes on the typographical error of an Internet user is considered typosquatting. Typosquatting, itself is evidence of bad faith registration and use pursuant to Policy ¶ 4(a)(iii).”); see also Dermalogica, Inc. v. Domains to Develop, FA 175201 (Nat. Arb. Forum Sept. 22, 2003) (finding that the <dermatalogica.com> domain name was a “simple misspelling” of the complainant's DERMALOGICA mark which indicated typosquatting and bad faith pursuant to Policy 4 ¶ (a)(iii)).
The Panel finds that Complainant has satisfied 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 <oneaccounte.com> domain name be TRANSFERRED from Respondent to Complainant.
Honorable Paul A. Dorf (Ret.), Panelist
Dated: November 25, 2009
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