Meadowbrook LLC v. Dealwave
Claim Number: FA1003001312200
Complainant is Meadowbrook LLC (“Complainant”), represented by CitizenHawk, Inc.,
REGISTRAR AND DISPUTED DOMAIN
NAMES
The domain names at issue are <theladofnod.com>, <thelandfnod.com>, <thelandofnd.com>, <thelandofod.com>, <thelandonod.com>, <thelanofnod.com> and <thlandofnod.com>, registered with Fabulous.com Pty Ltd.
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.
Tyrus R. Atkinson, Jr., as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on March 8, 2010.
On March 9, 2010, Fabulous.com Pty Ltd. confirmed by e-mail to the National Arbitration Forum that the <theladofnod.com>, <thelandfnod.com>, <thelandofnd.com>, <thelandofod.com>, <thelandonod.com>, <thelanofnod.com> and <thlandofnod.com> domain names are registered with Fabulous.com Pty Ltd. and that Respondent is the current registrant of the names. Fabulous.com Pty Ltd. has verified that Respondent is bound by the Fabulous.com Pty Ltd. 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 10, 2010, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 30, 2010 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@theladofnod.com, postmaster@thelandfnod.com, postmaster@thelandofnd.com, postmaster@thelandofod.com, postmaster@thelandonod.com, postmaster@thelanofnod.com, and postmaster@thlandofnod.com. Also on March 10, 2010, the Written Notice of the Complaint, notifying Respondent of the email 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 National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On April 8, 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Tyrus R. Atkinson, Jr., 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
<theladofnod.com>, <thelandfnod.com>,
<thelandofnd.com>, <thelandofod.com>, <thelandonod.com>, <thelanofnod.com> and <thlandofnod.com> domain
names are confusingly similar to Complainant’s
2. Respondent does not have any rights or legitimate interests in the <theladofnod.com>, <thelandfnod.com>, <thelandofnd.com>, <thelandofod.com>, <thelandonod.com>, <thelanofnod.com> and <thlandofnod.com> domain names.
3. Respondent registered and used the <theladofnod.com>, <thelandfnod.com>, <thelandofnd.com>, <thelandofod.com>, <thelandonod.com>, <thelanofnod.com> and <thlandofnod.com> domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Meadowbrook LLC, has registered its
Respondent, Dealwave, registered the disputed domain names August 8, 2007. The disputed domain names resolve to a web directory of third parties that include competitors 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."
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 it has rights in its
The disputed domain names are confusingly similar to
Complainant’s
The Panel finds that Policy ¶ 4(a)(i) is satisfied.
Complainant alleges that Respondent has no rights or legitimate interests in the disputed domain names. Once Complainant has made a prima facie case in support of these allegations, the burden to establish that it has rights or legitimate interests in the disputed domain names shifts to the Respondent pursuant to Policy ¶ 4(a)(ii). The Panel finds Complainant has established a prima facie case in support of its Complaint, shifting the burden to the Respondent. In light of Respondent’s failure to respond to the proceedings, the Panel will proceed to analyze the record in light of Policy ¶ 4(c). See Domtar, Inc. v. Theriault, FA 1089426 (Nat. Arb. Forum Jan 4, 2008) (“It is well established that, once a complainant has made out a prima facie case in support of its allegations, the burden shifts to respondent to show that it does have rights or legitimate interests pursuant to paragraph 4 (a)(ii) of the Policy.”); see also G.D. Searle v Martin Mktg., FA 118277 (Nat. Arb. Forum Oct. 1, 2002) (“Respondent’s failure to respond means that Respondent has not presented any circumstances that would promote its rights or legitimate interests in the subject domain name under Policy 4(a)(ii).”)
The WHOIS information for the <theladofnod.com>, <thelandfnod.com>,
<thelandofnd.com>, <thelandofod.com>, <thelandonod.com>, <thelanofnod.com> and <thlandofnod.com> disputed
domain names lists “Dealwave” as the
registrant, which indicates that Respondent is not commonly known by the
disputed domain name. Complainant asserts Respondent is not licensed or
otherwise authorized to use the
Respondent’s use of the <theladofnod.com>, <thelandfnod.com>, <thelandofnd.com>, <thelandofod.com>, <thelandonod.com>, <thelanofnod.com> and <thlandofnod.com> disputed domain names each resolve to a web directory with links to third-party competitors of Complainant. The Panel finds that Respondent’s use of the disputed domain names is not a bona fide offerings of goods or services under Policy ¶ 4(c)(i) or legitimate noncommercial or fair uses under Policy ¶ 4(c)(iii). See Meyerson v. Speedy Web, FA 960409 (Nat. Arb. Forum May 25, 2007) (finding that where a respondent has failed to offer any goods or services on its website other than links to a variety of third-party websites, it was not using a domain name in connection with a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii)); see also ALPITOUR S.p.A. v. balata inc, FA 888649 (Nat. Arb. Forum Feb. 27, 2007) (finding that “using the confusingly similar <viaggidea.com> domain name to operate a website that features links to various commercial websites from which Respondent presumably receives referral fees….is neither a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) nor a legitimate non-commercial or fair use pursuant to Policy ¶ 4(c)(iii).”).
Complainant asserts that the disputed domain name is an
intentional misspelling of the
The Panel finds Policy ¶ 4(a)(ii)
has been satisfied.
Complainant asserts that Respondent is a cybersquatter due to the registration and use of seven disputed domain names that are confusingly similar to Complainant’s mark. The Panel finds Respondent’s pattern of registration and use of disputed domain names to constitute bad faith pursuant to Policy ¶ 4(b)(ii). The Panel finds Respondent’s pattern of registration infringing on Complainant’s mark through the registration of these seven disputed domain names as bad faith pursuant to Policy ¶ 4(b)(ii). See EPA European Pressphoto Agency B.V. v. Wilson, D2004-1012 (WIPO Feb. 9, 2005) (finding that the respondent’s registration of the <epa-photo.com>, <epaphoto.com> and <epaphotos.com> domain names was sufficient to constitute a pattern pursuant to Policy ¶ 4(b)(ii)); see also Yahoo! Inc. v. Deiana, FA 339579 (Nat. Arb. Forum Nov. 22, 2004) (“It is found and determined that Respondent is in violation of Policy ¶ 4(b)(ii) because Respondent registered the disputed domain names to prevent Complainant from reflecting its YAHOO! mark in the corresponding domain names. The registration of the [<ayhooo.com>, <ayhooo.net >, <ayhooo.org>, <ayhoooindia.com>, <ayhoookids.com>, <ayhooorealty.com>, <ayhooorealty.net>, <ayhoooshopping.com>, <ayhooo-uk.com>, and <searchayhooo.com>] domain names herein constitutes a pattern of registering trademark-related domain names in bad faith.”).
Respondent’s <theladofnod.com>, <thelandfnod.com>, <thelandofnd.com>, <thelandofod.com>, <thelandonod.com>, <thelanofnod.com> and <thlandofnod.com> disputed domain names each resolve to a web directory with links to third-party competitors of Complainant. The Panel finds Respondent’s diversion constitutes a disruption of Complainant’s business and qualifies as bad faith registration and use pursuant to Policy ¶ 4(b)(iii). See 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).”); see also Red Hat, Inc. v. Haecke, FA 726010 (Nat. Arb. Forum July 24, 2006) (finding that the respondent engaged in bad faith registration and use pursuant to Policy ¶ 4(b)(iii) by using the disputed domain names to operate a commercial search engine with links to the products of the complainant and to complainant’s competitors, as well as by diverting Internet users to several other domain names).
Complainant asserts that Internet users, searching for
Complainant’s services, will be confused by the disputed domain names when each
resolves to a web directory with links to third-party competitors of
Complainant. Further, Internet users may
become confused as to Complainant’s sponsorship or affiliation with the <theladofnod.com>, <thelandfnod.com>,
<thelandofnd.com>, <thelandofod.com>, <thelandonod.com>, <thelanofnod.com> and <thlandofnod.com> disputed
domain names and resolving websites due to the Complainant’s mark displayed on
some of the resolving sites. Respondent
attempts to profit from this confusion through its presumed receipt of
click-through fees by linking to third-party websites. Therefore, the Panel finds Respondent’s use
of the disputed domain
name constitutes bad faith registration and use pursuant to Policy ¶ 4(b)(iv). See Bank of Am. Corp. v.
The Panel has previously concluded that Respondent is
engaged in the practice of typosquatting through the use of the <theladofnod.com>, <thelandfnod.com>,
<thelandofnd.com>, <thelandofod.com>, <thelandonod.com>, <thelanofnod.com> and <thlandofnod.com> disputed
domain names. The Panel finds that this
practice is stand alone evidence of bad faith registration and use pursuant to
Policy ¶ 4(a)(iii).
See Microsoft Corp.
v. Domain Registration
The Panel finds 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 <theladofnod.com>, <thelandfnod.com>, <thelandofnd.com>, <thelandofod.com>, <thelandonod.com>, <thelanofnod.com> and <thlandofnod.com> domain names be TRANSFERRED from Respondent to Complainant.
Tyrus R. Atkinson, Jr., Panelist
Dated: April 22, 2010
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