AOL Inc. v. Tooraj Gravori
Claim Number: FA1004001318447
Complainant is AOL Inc. (“Complainant”), represented by James
R. Davis, of Arent Fox LLP,
REGISTRAR AND DISPUTED DOMAIN
NAMES
The domain names at issue are <3dmoviefone.com>, <3dmoviefone.info>, <3dmoviephone.com>, and <3dmoviephone.info>, registered with Godaddy.com, 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.
James A. Carmody, Esq., as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on April 9, 2010.
On April 12, 2010, Godaddy.com, Inc. confirmed by e-mail to the National Arbitration Forum that the <3dmoviefone.com>, <3dmoviefone.info>, <3dmoviephone.com>, and <3dmoviephone.info> 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 April 15, 2010, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 5, 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@3dmoviefone.com, postmaster@3dmoviefone.info, postmaster@3dmoviephone.com, and postmaster@3dmoviephone.info. Also on April 15, 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 May 14, 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed James A. Carmody, Esq., 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" through submission of a Written Notice, as defined in Rule 1. 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 <3dmoviefone.com>, <3dmoviefone.info>, <3dmoviephone.com>, and <3dmoviephone.info> domain names are confusingly similar to Complainant’s MOVIEFONE.COM and MOVIEFONE marks.
2. Respondent does not have any rights or legitimate interests in the <3dmoviefone.com>, <3dmoviefone.info>, <3dmoviephone.com>, and <3dmoviephone.info> domain names.
3. Respondent registered and used the <3dmoviefone.com>, <3dmoviefone.info>, <3dmoviephone.com>, and <3dmoviephone.info> domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, AOL Inc., holds a trademark registration for its MOVIEFONE.COM mark (Reg. No. 2,337,719 issued April 4, 2000) and holds several trademark registrations for its MOVIEFONE mark (e.g., Reg. No. 2,609,509 issued August 20, 2002) with the United States Patent and Trademark Office (“USPTO”). Complainant uses its marks in connection with providing information and entertainment services with a focus on the movie industry. Complainant also operates an official website resolving from the <moviefone.com> domain name in relation to its mark.
Respondent, Tooraj Gravori, registered the <3dmoviefone.com>, <3dmoviefone.info>, <3dmoviephone.com>, and <3dmoviephone.info> domain names on August 14, 2009. The disputed domain names each resolve to a web directory with links to third-party websites, some of which directly compete with Complainant’s business.
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 its MOVIEFONE.COM mark through its trademark registration of the mark with the USPTO (Reg. No. 2,337,719 issued April 4, 2000) and in its MOVIEFONE mark through its holding of a number of trademark registrations with the USPTO (e.g., Reg. No. 2,609,509 issued August 20, 2002). The Panel finds Complainant has established its rights in the marks under Policy ¶ 4(a)(i) through its trademark registrations with the USPTO. See SDC Media, Inc. v. SCMedia, FA 960250 (Nat. Arb. Forum June 7, 2007) (holding that “[t]his trademark registration [with the USPTO] establishes Complainant’s rights in the mark pursuant to Policy ¶ 4(a)(i).”); see also Expedia, Inc. v. Tan, FA 991075 (Nat. Arb. Forum June 29, 2007) (“As the [complainant’s] mark is registered with the USPTO, [the] complainant has met the requirements of Policy ¶ 4(a)(i).”).
Complainant argues that Respondent’s <3dmoviefone.com> ans <3dmoviephone.com>
domain names are confusingly similar to Complainant’s MOVIEFONE.COM
mark. Complainant contends that the disputed domain names incorporate the entirety
of its mark and merely add a numeral and a letter (“3”, “d”) to the mark.
Complainant contends that Respondent’s <3dmoviephone.com>
domain name
makes these alterations and substitutes the letter “f” in Complainant’s mark
with the letter’s phonetic counterpart “ph.” The Panel finds that these
modifications are not enough to distinguish the disputed domain names from the
mark. As such, the Panel finds Respondent’s <3dmoviefone.com> and <3dmoviephone.com>
domain names are confusingly similar to Complainant’s MOVIEFONE.COM
mark pursuant to Policy ¶ 4(a)(i). See Am. Online Inc. v. Chinese ICQ Network,
D2000-0808 (WIPO Aug. 31, 2000) (finding that the addition of the numeral 4 in
the domain name <4icq.com> does nothing to deflect the impact on the
viewer of the mark ICQ and is therefore confusingly similar); see also Kelson Physician Partners, Inc. v.
Mason, CPR003 (CPR 2000) (finding that <kelsonmd.com> is identical or
confusingly similar to the complainant’s federally registered service mark,
KELSON); see also Pfizer Inc. v. Phizer's
Antiques, D2002-0410 (WIPO July 3, 2002) (finding the
<phizer.com> domain name phonetically equivalent and
confusingly similar to the PFIZER mark); see
also Colibri Corp. v. Dinoia, FA 662937 (Nat. Arb. Forum May 5, 2006)
(finding that the <calibri.com> domain name was visually and phonetically
similar to the complainant’s COLIBRI mark); see
also Hewlett-Packard Co. v.
Complainant argues that Respondent’s <3dmoviefone.info> and <3dmoviephone.info>
domain names are confusingly similar to Complainant’s MOVIEFONE mark.
Complainant contends that Respondent’s disputed domain names hold Complainant’s
mark in its entirety, add a numeral and a letter (“3”, “d”), and add the
generic top-level domain (“gTLD”) “.info.” Complainant argues that, in addition to these,
Respondent’s <3dmoviephone.info> domain name substitutes the
letter “f” in Complainant’s mark with the letter’s phonetic counterpart “ph.”
The Panel finds that the replacement of a letter in Complainant’s mark with its
phonetic counterpart creates terms that are phonetically similar, resulting in
confusing similartity. The Panel finds the <3dmoviefone.info> and <3dmoviephone.info> domain names to be
confusingly similar to Complainant’s MOVIEFONE mark under Policy ¶ 4(a)(i). See Am. Online
Inc. v. Chinese ICQ Network supra; see
also Kelson Physician Partners, Inc. v. Mason supra; see also Trip Network Inc. v. Alviera, FA 914943 (Nat. Arb. Forum Mar. 27, 2007)
(concluding that the affixation of a gTLD to a domain name is irrelevant to a
Policy ¶ 4(a)(i) analysis); see also Jerry
Damson, Inc. v.
Complainant alleges that Respondent does not have any rights or legitimate interests in the <3dmoviefone.com>, <3dmoviefone.info>, <3dmoviephone.com>, and <3dmoviephone.info> domain names. Based on this prima facie allegation by Complainant, the burden shifts to Respondent to prove otherwise. Respondent has failed to respond to this proceeding, thereby failing to meet its burden and leaving the Panel to find Respondent lacks rights or legitimate interests in the disputed domain names pursuant to Policy ¶ 4(a)(ii). However, the Panel will examine the record, at its discretion, to determine whether Respondent has rights or legitimate interests in the disputed domain names under Policy ¶ 4(c). See F. Hoffmann-La Roche AG v. Di Salvatore, D2006-1417 (WIPO Feb. 1, 2007) (“Proper analysis of paragraph 4(a)(ii) of the Policy shows that the burden of proof shifts from the Complainant to the Respondent once the Complainant has made out a prima facie case that the Respondent has no rights or interests in the domain names.”); see also Vanguard Group, Inc. v. Collazo, FA 349074 (Nat. Arb. Forum Dec. 1, 2004) (finding that because the 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.”).
Complainant asserts that Respondent has never been given either authorization or license to use Complainant’s MOVIEFONE.COM or MOVIEFONE marks. Complainant further asserts that Respondent is not sponsored by or legitimately affiliated with Complainant in any way. The WHOIS information for the <3dmoviefone.com>, <3dmoviefone.info>, <3dmoviephone.com>, and <3dmoviephone.info> domain names lists the registrant as “Tooraj Gravori,” which does not suggest that Respondent is commonly known by any of the domain names, nor has Respondent offered evidence to the contrary. The Panel finds that Respondent is not commonly known by any of the disputed domain names pursuant to Policy ¶ 4(c)(ii). See 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); see also 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 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).
Respondent’s <3dmoviefone.com>, <3dmoviefone.info>, <3dmoviephone.com>, and <3dmoviephone.info> domain names each resolve to a website that features click-through hyperlinks to third-party websites that include Complainant’s competitors in the movie information industry. The Panel presumes that Respondent is profiting through the receipt of click-through fees by operating the websites resolving from the disputed domain names. Therefore, the Panel finds that Respondent is not using the <3dmoviefone.com>, <3dmoviefone.info>, <3dmoviephone.com>, and <3dmoviephone.info> domain names in connection with a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use of the domain names under Policy ¶ 4(c)(iii). See Expedia, Inc. v. Compaid, FA 520654 (Nat. Arb. Forum Aug. 30, 2005) (finding that the respondent’s use of the <expediate.com> domain name to redirect Internet users to a website featuring links to services that competed with the complainant was not 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 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).”).
Furthermore, Respondent’s use of the <3dmoviephone.com> and <3dmoviephone.info> domain names is alleged by Complainant to be typosquatting. Complainant contends that these disputed domain names are intentional misspellings of its MOVIEFONE.COM and MOVIEFONE marks. The Panel finds that Respondent’s use of the phonetically similar disputed domain names to redirect Internet users seeking Complainant’s website fails to establish rights or legitimate interests pursuant to Policy ¶ 4(a)(ii). See 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’”); see also 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 Complainant's LTD COMMODITIES mark and this “‘typosquatting’ is evidence that Respondent lacks rights or legitimate interests in the disputed domain names”).
Complainant contends that Respondent exhibits a pattern of registering infringing domain names due to the registration and use of four disputed domain names that are confusingly similar to Complainant’s marks. The Panel finds Respondent’s pattern of registration and use of the <3dmoviefone.com>, <3dmoviefone.info>, <3dmoviephone.com>, and <3dmoviephone.info> domain names constitute bad faith pursuant to Policy ¶ 4(b)(ii). See Harcourt, Inc. v. Fadness, FA 95247 (Nat. Arb. Forum Sept. 8, 2000) (finding that one instance of registration of several infringing domain names satisfies the burden imposed by the Policy ¶ 4(b)(ii)); see also 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)).
Prior panels have found a respondent’s use of confusingly
similar domain names to feature hyperlinks to Complainant’s competitors
constitutes a disruption of complainant’s business. This Panel has previously
found that Respondent’s disputed domain names are confusingly similar to
Complainant’s marks, and that the resolving websites from the disputed domain
names display links to third-parties which include Complainant’s competitors.
As such, the Panel finds Respondent’s use of the <3dmoviefone.com>, <3dmoviefone.info>, <3dmoviephone.com>,
and <3dmoviephone.info> domain names disrupt Complainant’s
online movie information business and constitutes bad faith registration and
use under Policy ¶ 4(b)(iii). See Tesco
Pers. Fin. Ltd. v. Domain Mgmt. Servs., FA 877982
(Nat. Arb. Forum Feb. 13, 2007) (concluding that the use of a
confusingly similar domain name to attract Internet users to a directory
website containing commercial links to the websites of a complainant’s
competitors represents bad faith registration and use under Policy ¶ 4(b)(iii));
see also Persohn
v. Lim, FA 874447 (Nat. Arb. Forum
Feb. 19, 2007) (finding bad faith registration and use pursuant to Policy ¶
4(b)(iii) where a respondent used the disputed domain name to operate a commercial
search engine with links to the complainant’s competitors).
In addition to the disruption of Complainant’s business,
Complainant argues that Respondent likely receives click-through fees from the
third-party links unrelated to Complainant’s business. Internet users seeking
Complainant’s online movie information services may become confused as to
Complainant’s affiliation or sponsorship of the disputed domain names,
resolving websites, and/or third-party links. The Panel finds Respondent’s use
of the disputed domain names constitutes bad faith registration and use under Policy
¶ 4(b)(iv). See
As previously established, Respondent has engaged in the practice of typosquatting by using common phonetic misspellings of Complainant’s MOVIEFONE.COM and MOVIEFONE marks through its use and registration of the <3dmoviephone.com> and <3dmoviephone.info> domain names. The Panel finds typosquatting is further evidence of bad faith registration and use pursuant to Policy 4 ¶ (a)(iii). See Nat’l Ass’n of Prof’l Baseball League, Inc. v. Zuccarini, D2002-1011 (WIPO Jan. 21, 2003) (“Typosquatting … is the intentional misspelling of words with [the] intent to intercept and siphon off traffic from its intended destination, by preying on Internauts who make common typing errors. Typosquatting is inherently parasitic and of itself evidence of bad faith.”); see also The Vanguard Group, Inc. v. IQ Mgmt. Corp., FA 328127 (Nat. Arb. Forum Oct. 28, 2004) (“By engaging in typosquatting, [r]espondent has registered and used the <vangard.com> domain name in bad faith pursuant to 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 <3dmoviefone.com>, <3dmoviefone.info>, <3dmoviephone.com>, and <3dmoviephone.info> domain names be TRANSFERRED from Respondent to Complainant.
James A. Carmody, Esq., Panelist
Dated: May 18, 2009
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