Fandango, LLC v. International Media Services SA / Rafael Calvo
Claim Number: FA1204001439409
Complainant is Fandango, LLC (“Complainant”), represented by CitizenHawk, Inc., California, USA. Respondent is International Media Services SA / Rafael Calvo (“Respondent”), Paraguay.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <faxndango.com>, <fandahngo.com>, <fandanglo.com>, <fazndango.com>, <fandzango.com>, <fandnango.com>, <fandwango.com>, <fandanjgo.com>, <fawndango.com>, <fandcango.com>, <fahndango.com>, <fandantgo.com>, <fnadango.com>, <fzndango.com>, <fandsngo.com>, <faneango.com>, <ffandango.com>, <fandsango.com>, <fandazngo.com>, <fandxango.com>, and <fanxdango.com>, registered with Power Brand Center Corp.
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.
The Honourable Neil Anthony Brown QC as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on April 13, 2012; the National Arbitration Forum received payment on April 13, 2012.
On April 24, 2012, Power Brand Center Corp. confirmed by e-mail to the National Arbitration Forum that the <faxndango.com>, <fandahngo.com>, <fandanglo.com>, <fazndango.com>, <fandzango.com>, <fandnango.com>, <fandwango.com>, <fandanjgo.com>, <fawndango.com>, <fandcango.com>, <fahndango.com>, <fandantgo.com>, <fnadango.com>, <fzndango.com>, <fandsngo.com>, <faneango.com>, <ffandango.com>, <fandsango.com>, <fandazngo.com>, <fandxango.com>, and <fanxdango.com> domain names are registered with Power Brand Center Corp. and that Respondent is the current registrant of the names. Power Brand Center Corp. has verified that Respondent is bound by the Power Brand Center Corp. registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On May 2, 2012, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 22, 2012 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@faxndango.com, postmaster@fandahngo.com, postmaster@fandanglo.com, postmaster@fazndango.com, postmaster@fandzango.com, postmaster@fandnango.com, postmaster@fandwango.com, postmaster@fandanjgo.com, postmaster@fawndango.com, postmaster@fandcango.com, postmaster@fahndango.com, postmaster@fandantgo.com, postmaster@fnadango.com, postmaster@fzndango.com, postmaster@fandsngo.com, postmaster@faneango.com, postmaster@ffandango.com, postmaster@fandsango.com, postmaster@fandazngo.com, postmaster@fandxango.com, and postmaster@fanxdango.com. Also on May 2, 2012, the Written Notice of the Complaint, notifying Respondent of the e-mail 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 24, 2012, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed
The Honourable Neil Anthony Brown QC 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 Electronic and Written Notices, as defined in Rule 1 and Rule 2. 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
1.Complainant has rights in the FANDANGO mark;
2. Complainant owns trademark registrations with the United States Patent and Trademark Office (“USPTO”) for the FANGANGO mark (e.g., Reg. No. 2,769,579 registered September 9, 2003);
3. Complainant has rights in the F FANDANGO mark;
4. Complainant owns a trademark registration for the F FANDANGO mark (Reg. No. 35.241,364 registered May 15, 2007) with the USPTO;
5.The <faxndango.com>, <fandahngo.com>, <fandanglo.com>, <fazndango.com>, <fandzango.com>, <fandnango.com>, <fandwango.com>, <fandanjgo.com>, <fawndango.com>, <fandcango.com>, <fahndango.com>, <fandantgo.com>, <fnadango.com>, <fzndango.com>, <fandsngo.com>, <faneango.com>, <ffandango.com>, <fandsango.com>, <fandazngo.com>, <fandxango.com>, and <fanxdango.com> domain names are either identical or confusingly similar to the FANDANGO and/or F FANDANGO marks;
6. Respondent is not commonly known by the <faxndango.com>, <fandahngo.com>, <fandanglo.com>, <fazndango.com>, <fandzango.com>, <fandnango.com>, <fandwango.com>, <fandanjgo.com>, <fawndango.com>, <fandcango.com>, <fahndango.com>, <fandantgo.com>, <fnadango.com>, <fzndango.com>, <fandsngo.com>, <faneango.com>, <ffandango.com>, <fandsango.com>, <fandazngo.com>, <fandxango.com>, and <fanxdango.com> domain names;
7. Respondent is using the <fzndango.com>, <fnadango.com>, <ffandango.com>, <faxndango.com>, <fazndango.com>, <fanxdango.com>, <faneango.com>, <fandzango.com>, <fandxango.com>, <fandwango.com>, <fandsango.com>, <fandnango.com>, <fandcango.com>, <fandazngo.com>, <fandantgo.com>, <fandanjgo.com>, <fandahngo.com>, and <fahndango.com> domain names to display links to third-party websites, some of which directly compete with Complainant’s business;
8. Respondent is using the <fandsngo.com> domain name to redirect Internet users to websites operated by Complainant’s competitor;
9. Respondent is using the <fawndango.com> and <fandanglo.com> domain names to operate a phishing scheme to obtain personal details from Internet users;
10.Respondent registered and is using each of the <faxndango.com>, <fandahngo.com>, <fandanglo.com>, <fazndango.com>, <fandzango.com>, <fandnango.com>, <fandwango.com>, <fandanjgo.com>, <fawndango.com>, <fandcango.com>, <fahndango.com>, <fandantgo.com>, <fnadango.com>, <fzndango.com>, <fandsngo.com>, <faneango.com>, <ffandango.com>, <fandsango.com>, <fandazngo.com>, <fandxango.com>, and <fanxdango.com> domain names in bad faith;
11.Respondent registered and is using the <fzndango.com>, <fnadango.com>, <ffandango.com>, <faxndango.com>, <fazndango.com>, <fanxdango.com>, <faneango.com>, <fandzango.com>, <fandxango.com>, <fandwango.com>, <fandsango.com>, <fandnango.com>, <fandcango.com>, <fandazngo.com>, <fandantgo.com>, <fandanjgo.com>, <fandahngo.com>, and <fahndango.com> domain names with an intent to take advantage of Complainant’s FANDANGO and F FANDANGO marks to achieve a wrongful competitive advantage and commercial gain;
12. Respondent has engaged in typosquatting.
B. Respondent
Respondent failed to submit a Response in this proceeding.
1. Complainant is a United States company whose business activity is providing an internet source for movie information and at home and remote ticket sales.
2. Complainant owns trademark registrations with the United States Patent and Trademark Office (“USPTO”) for the FANGANGO mark (e.g., Reg. No. 2,769,579 registered September 9, 2003) and for the F FANDANGO mark (Reg. No. 35.241,364 registered May 15, 2007) with the USPTO.
3. Respondent registered the <faxndango.com> domain name on September 10, 2010, the <fandahngo.com>, <fazndango.com>, <fandzango.com>, <fandanjgo.com>, <fandcango.com>, <fandazngo.com>, <fandxango.com>, and <fanxdango.com> domain names on September 11, 2010, the <fandantgo.com> and <fandsango.com> domain names on August 6, 2010,
the <fandanglo.com> domain name on December 21, 2005, the <fandnango.com> domain name on December 30 2005, the <fandwango.com> domain name on October 21, 2010, the <fawndango.com> domain name on November 18, 2010 ,the <fahndango.com> domain name on July 30, 2010;
the <fnadango.com> domain name on November 9, 2005,the <fzndango.com> domain name was on August 19, 2010,the <fandsngo.com> domain name on October 21, 2010, the <faneango.com> domain name on August 11, 2004 and the <ffandango.com> domain name on August 5, 2007.
4.The disputed domain names have variously been used to display links to third-party competitive websites, redirect Internet users to websites operated by Complainant’s competitor and to operate a phishing scheme to obtain personal details from Internet users;
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."
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.
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.”).
The first question that arises is whether Complainant has rights in a trademark or service mark. Complainant contends that it has rights in the FANDANGO and F FANDANGO marks which it uses in connection with movie schedule and location information services, movie ticketing and reservation services and information sharing regarding recreational destinations, listings, and reviews. Complainant provides the Panel with evidence of its trademark registrations with the USPTO for the FANDANGO mark (e.g., Reg. No. 2,769,579 registered September 9, 2003). Complainant also provides evidence of its USPTO trademark registration for the F FANDANGO mark (Reg. No. 3,241,364 registered May 15, 2007). The Panels in Trip Network Inc. v. Alviera, FA 914943 (Nat. Arb. Forum Mar. 27, 2007), and Metro. Life Ins. Co. v. Bonds, FA 873143 (Nat. Arb. Forum Feb. 16, 2007), held that the registration of a mark with a trademark authority is sufficient evidence of rights in a mark. The panels in Williams-Sonoma, Inc. v. Fees, FA 937704 (Nat. Arb. Forum Apr. 25, 2007), and Renaissance Hotel Holdings, Inc. v. Renaissance Cochin, FA 932344 (Nat. Arb. Forum Apr. 23, 2007), expanded by holding that this registration satisfies the requisite showing under Policy ¶ 4(a)(i) regardless of the location of the parties. Therefore, the Panel finds that Complainant has rights in the FANDANGO mark pursuant to Policy ¶ 4(a) (i).
The second question that arises is whether the disputed domain names are identical or confusingly similar to the FANDANGO and/or the F FANDANGO marks. Complainant asserts that the <faxndango.com>, <fandahngo.com>, <fandanglo.com>, <fazndango.com>, <fandzango.com>, <fandnango.com>, <fandwango.com>, <fandanjgo.com>, <fawndango.com>, <fandcango.com>, <fahndango.com>, <fandantgo.com>, <fnadango.com>, <fzndango.com>, <fandsngo.com>, <faneango.com>, <fandsango.com>, <fandazngo.com>, <fandxango.com>, and <fanxdango.com> domain names are identical or confusingly similar to its marks. Complainant asserts that, in the case of each of the disputed domain names, Respondent simply took a misspelling of Complainant’s FANDANGO mark and added the generic top-level domain (“gTLD”) “.com” to create the disputed domain names. The Panel finds that the misspelling of a mark by one letter, or the transposition of letters, fails to distinguish the disputed domain name from the mark. See Reuters Ltd. v. Global Net 2000, Inc., D2000-0441 (WIPO July 13, 2000) (finding that a domain name which differs by only one letter from a trademark has a greater tendency to be confusingly similar to the trademark where the trademark is highly distinctive); see also Google Inc. v. Jon G., FA 106084 (Nat. Arb. Forum Apr. 26, 2002) (finding <googel.com> to be confusingly similar to the complainant’s GOOGLE mark and noting that “[t]he transposition of two letters does not create a distinct mark capable of overcoming a claim of confusing similarity, as the result reflects a very probable typographical error”). The Panel also finds that the addition of a gTLD to a mark in a disputed domain name is irrelevant to a Policy ¶ 4(a) (i) determination. See 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 Isleworth Land Co. v. Lost in Space, SA, FA 117330 (Nat. Arb. Forum Sept. 27, 2002) (“[I]t is a well established principle that generic top-level domains are irrelevant when conducting a Policy ¶ 4(a) (i) analysis.”). The Panel finds that the <faxndango.com>, <fandahngo.com>, <fandanglo.com>, <fazndango.com>, <fandzango.com>, <fandnango.com>, <fandwango.com>, <fandanjgo.com>, <fawndango.com>, <fandcango.com>, <fahndango.com>, <fandantgo.com>, <fnadango.com>, <fzndango.com>, <fandsngo.com>, <faneango.com>, <fandsango.com>, <fandazngo.com>, <fandxango.com>, and <fanxdango.com> domain names are confusingly similar to the FANDANGO mark under Policy ¶ 4(a)(i).
Complainant also argues that the <ffandango.com> domain name is confusingly similar or identical to the F FANDANGO mark. The Panel finds that Respondent’s deletion of the space between the words of the mark and the addition of the gTLD “.com” fails to differentiate the <ffandango.com> domain name from the F FANDANGO mark. See Hannover Ruckversicherungs-AG v. Ryu, FA 102724 (Nat. Arb. Forum Jan. 7, 2001) (finding <hannoverre.com> to be identical to HANNOVER RE, “as spaces are impermissible in domain names and a generic top-level domain such as ‘.com’ or ‘.net’ is required in domain names”); see also Tech. Props., Inc. v. Burris, FA 94424 (Nat. Arb. Forum May 9, 2000) (finding that the domain name <radioshack.net> is identical to the complainant’s mark, RADIO SHACK). Therefore, the Panel finds that the <ffandango.com> domain name is identical to the F FANDANGO mark pursuant to Policy ¶ 4(a) (i).
Complainant has thus made out the first of the three elements that it must establish.
It is now well established that Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain names under Policy ¶ 4(a) (ii), and then the burden shifts to Respondent to show it does have rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under UDRP ¶ 4(a) (ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name); see also AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006) (“Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.”).
The Panel finds that Complainant has made out a prima facie case that arises from the following considerations:
(a) Respondent has chosen to take Complainant’s FANDANGO trademark and, in one case, its F FANDANGO mark to use them in its domain names ,
making only small spelling alterations to the spelling of the trademark and in the case of the <ffandango.com> domain name, making no changes to the spelling of the trademark at all;
(b) Respondent has then decided to use the domain names by causing them variously to display links to third-party competitive websites, redirect Internet users to websites operated by Complainant’s competitor and to operate a phishing scheme to obtain personal details from Internet users;
(c) Respondent has engaged in these activities without the consent or approval of Complainant;
(d) Complainant also contends that Respondent is not commonly known by the <faxndango.com>, <fandahngo.com>, <fandanglo.com>, <fazndango.com>, <fandzango.com>, <fandnango.com>, <fandwango.com>, <fandanjgo.com>, <fawndango.com>, <fandcango.com>, <fahndango.com>, <fandantgo.com>, <fnadango.com>, <fzndango.com>, <fandsngo.com>, <faneango.com>, <ffandango.com>, <fandsango.com>, <fandazngo.com>, <fandxango.com>, and <fanxdango.com> domain names. Complainant alleges that Respondent is not sponsored by, or legitimately affiliated with, Complainant and Complainant has not given Respondent permission to use Complainant’s marks in domain names. Further, the WHOIS records that Complainant provides to the Panel list “International Media Services SA / Rafael Calvo” as the domain name registrant for the <faxndango.com>, <fandahngo.com>, <fandanglo.com>, <fazndango.com>, <fandzango.com>, <fandnango.com>, <fandwango.com>, <fandanjgo.com>, <fawndango.com>, <fandcango.com>, <fahndango.com>, <fandantgo.com>, <fnadango.com>, <fzndango.com>, <fandsngo.com>, <faneango.com>, <ffandango.com>, <fandsango.com>, <fandazngo.com>, <fandxango.com>, and <fanxdango.com> domain names. Therefore, the Panel finds that Respondent is not commonly known by the disputed domain names pursuant to Policy ¶ 4(c) (ii). See 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); 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 ¶ 4(c) (ii) based on the WHOIS information and other evidence in the record).
(e) Complainant also contends that Respondent does not have rights or legitimate interests in the <fzndango.com>, <fnadango.com>, <ffandango.com>, <faxndango.com>, <fazndango.com>, <fanxdango.com>, <faneango.com>, <fandzango.com>, <fandxango.com>, <fandwango.com>, <fandsango.com>, <fandnango.com>, <fandcango.com>, <fandazngo.com>, <fandantgo.com>, <fandanjgo.com>, <fandahngo.com>, and <fahndango.com> domain names. Complainant alleges that Respondent is using the disputed domain names to display links to third-party websites, some of which directly compete with Complainant’s business. Panels have previously held that the Policy ¶¶ 4(c) (i) and 4(c) (iii) does not protect disputed domain names that are used to display competing or noncompeting links to third parties. 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 Bank of Am. Fork v. Shen, FA 699645 (Nat. Arb. Forum June 11, 2006) (finding that the respondent’s use of a domain name to redirect Internet users to websites unrelated to a complainant’s mark is not a bona fide use under Policy ¶ 4(c)(I)). Therefore, the Panel finds that Respondent’s display of links on the websites resolving from the <fzndango.com>, <fnadango.com>, <ffandango.com>, <faxndango.com>, <fazndango.com>, <fanxdango.com>, <faneango.com>, <fandzango.com>, <fandxango.com>, <fandwango.com>, <fandsango.com>, <fandnango.com>, <fandcango.com>, <fandazngo.com>, <fandantgo.com>, <fandanjgo.com>, <fandahngo.com>, and <fahndango.com> domain names is neither a Policy ¶ 4(c)(I) bona fide offering of goods or services nor a Policy ¶ 4(c)(iii) legitimate noncommercial or fair use.
(f) Complainant also asserts that Respondent does not have rights or legitimate interests in the <fandsngo.com> domain name. Complainant contends that Respondent is using the <fandsngo.com> domain name to redirect Internet users to websites operated by Complainant’s competitor. Panels have previously held that the use of a disputed domain name to operate a competing business is not a use which confers rights or legitimate interests in the disputed domain name on the respondent. See Florists’ Tran world Delivery v. Male, FA 676433 (Nat. Arb. Forum June 6, 2006) (holding that the respondent’s use of the <ftdflowers4less.com> domain name to sell flowers in competition with the complainant did not give rise to any legitimate interest in the domain name); see also Computerized Sec. Sys., Inc. v. Hun, FA 157321 (Nat. Arb. Forum June 23, 2003) (“Respondent’s appropriation of [Complainant’s] SAFLOK mark to market products that compete with Complainant’s goods does not constitute a bona fide offering of goods and services.”). Therefore, the Panel finds that Respondent’s use of the <fandsngo.com> domain name to redirect Internet users to websites operated by Complainant’s competitor is neither a Policy ¶ 4(c) (i) bona fide offering of goods or services nor a Policy ¶ 4(c) (iii) legitimate noncommercial or fair use.
(g) Complainant claims that the <fawndango.com> and <fandanglo.com> domain names are not being used in a way that provides Respondent with rights or legitimate interests in the disputed domain name. Complainant contends that Respondent uses the <fawndango.com> and <fandanglo.com> domain names to operate a phishing scheme to obtain personal details from Internet users. Complainant argues that the <fawndango.com> and <fandanglo.com> domain names resolve to websites that declare that the Internet user may participate in a short survey for the chance to win a prize and requires the Internet user to supply personal information in order to obtain the prize. Therefore, the Panel finds that Respondent’s use of the <fawndango.com> and <fandanglo.com> domain names is neither a bona fide offering of goods or services nor a legitimate noncommercial or fair use pursuant to Policy ¶¶ 4(c)(i) and 4(c)(iii). See Allianz of Am. Corp. v. Bond, FA 690796 (Nat. Arb. Forum June 12, 2006) (holding that the respondent’s use of the <allianzcorp.biz> domain name to fraudulently acquire the personal and financial information of Internet users seeking Complainant’s financial services was not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use of the disputed domain name pursuant to Policy ¶ 4(c)(iii)); see also Juno Online Servs., Inc. v. Iza, FA 245960 (Nat. Arb. Forum May 3, 2004) (maintaining that using a domain name to redirect “Internet users to a website that imitates Complainant’s billing website, and is used to fraudulently acquire personal information from Complainant’s clients,” is neither a bona fide offering of goods or services nor a legitimate noncommercial or fair use).
(h) Complainant asserts that Respondent typosquatted Complainant’s marks in each of the <faxndango.com>, <fandahngo.com>, <fandanglo.com>, <fazndango.com>, <fandzango.com>, <fandnango.com>, <fandwango.com>, <fandanjgo.com>, <fawndango.com>, <fandcango.com>, <fahndango.com>, <fandantgo.com>, <fnadango.com>, <fzndango.com>, <fandsngo.com>, <faneango.com>, <ffandango.com>, <fandsango.com>, <fandazngo.com>, <fandxango.com>, and <fanxdango.com> domain names. Complainant alleges that the disputed domain names are slightly misspelled versions of Complainant’s marks. The Panel notes that the <ffandango.com> domain name is identical to the F FANDANGO mark and thus that it is not typosquatted. Panels have previously found that the typosquatting of a disputed domain name is evidence of a lack of rights and legitimate interests in the disputed domain name. See Microsoft Corp. v. Domain Registration Philippines, FA 877979 (Nat. Arb. Forum Feb. 20, 2007) (concluding that by registering the <microssoft.com> domain name, the respondent had “engaged in typosquatting, which provides additional evidence that [the] respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii).”); 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”). Therefore, the Panel finds that Respondent lacks rights and legitimate interests in the <faxndango.com>, <fandahngo.com>, <fandanglo.com>, <fazndango.com>, <fandzango.com>, <fandnango.com>, <fandwango.com>, <fandanjgo.com>, <fawndango.com>, <fandcango.com>, <fahndango.com>, <fandantgo.com>, <fnadango.com>, <fzndango.com>, <fandsngo.com>, <faneango.com>, <fandsango.com>, <fandazngo.com>, <fandxango.com>, and <fanxdango.com> domain names due to being typosquatted by Respondent pursuant to Policy ¶ 4(a)(ii).
All of these matters go to make out the prima facie case against Respondent. As Respondent has not filed a Response or attempted by any other means to rebut the prima facie case against it, the Panel finds that Respondent has no rights or legitimate interests in the disputed domain names.
Complainant has thus made out the second of the three elements that it must establish.
It is clear that to establish bad faith for the purposes of the Policy, Complainant must show that the disputed domain names were registered in bad faith and have been used in bad faith. It is also clear that the criteria set out in Policy ¶ 4(b) for establishing bad faith are not exclusive, but that Complainants in UDRP proceedings may also rely on conduct that is bad faith within the generally accepted meaning of that expression.
Having regard to those principles, the Panel finds that the disputed domain names were registered and used in bad faith. That is so for the following reasons.
First, Complainant contends that Respondent registered and uses the <fzndango.com>, <fnadango.com>, <ffandango.com>, <faxndango.com>, <fazndango.com>, <fanxdango.com>, <faneango.com>, <fandzango.com>, <fandxango.com>, <fandwango.com>, <fandsango.com>, <fandnango.com>, <fandcango.com>, <fandazngo.com>, <fandantgo.com>, <fandanjgo.com>, <fandahngo.com>, and <fahndango.com> domain names in bad faith. Respondent, Complainant claims, uses these domain names in order to display links to third-party websites, some of which compete with Complainant’s business. Complainant asserts that Respondent registered these domain names with the intent to achieve a wrongful competitive advantage by using Complainant’s marks and then to use the domain names for commercial gain. The Panel notes that the <fandsngo.com> domain name, which is used to operate a business which competes with Complainant’s business, also incorporates a mark of Complainant’s, and Complainant alleged previously that the <fandsngo.com> domain name is being used commercially. Therefore, the Panel finds that Respondent registered and uses the <fandsngo.com>, <fzndango.com>, <fnadango.com>, <ffandango.com>, <faxndango.com>, <fazndango.com>, <fanxdango.com>, <faneango.com>, <fandzango.com>, <fandxango.com>, <fandwango.com>, <fandsango.com>, <fandnango.com>, <fandcango.com>, <fandazngo.com>, <fandantgo.com>, <fandanjgo.com>, <fandahngo.com>, and <fahndango.com> domain names in bad faith as it finds under Policy ¶ 4(b)(iv) that Respondent intended to create confusion as to the source of the disputed domain names and then to take commercial advantage of Internet users’ mistakes made as a result of the confusion. See AltaVista Co. v. Kyoto, D2000-1091 (WIPO Oct. 25, 2000) (finding bad faith under Policy ¶ 4(b)(iv) where the respondent’s domain name resolved to a website that offered links to third-party websites that offered services similar to the complainant’s services and merely took advantage of Internet user mistakes); see also MathForum.com, LLC v. Weygand Huang, D2000-0743 (WIPO Aug. 17, 2000) (finding bad faith under Policy ¶ 4(b)(iv) where the respondent registered a domain name confusingly similar to the complainant’s mark and the domain name was used to host a commercial website that offered similar services offered by the complainant under its mark).
Secondly, Complainant asserts that the <fawndango.com> and <fandanglo.com> domain names also were registered and are being used in bad faith. While Policy ¶ 4(b) provides a list of factors for a panel to consider when making a determination of bad faith, the list is not meant to be exhaustive. See Digi Int’l Inc. v. DDI Sys., FA 124506 (Nat. Arb. Forum Oct. 24, 2002) (determining that Policy ¶ 4(b) sets forth certain circumstances, without limitation, that shall be evidence of registration and use of a domain name in bad faith); see also Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (“[T]he examples [of bad faith] in Paragraph 4(b) are intended to be illustrative, rather than exclusive.”). Therefore, the Panel will consider the totality of the circumstances when determining bad faith with regard to the <fawndango.com> and <fandanglo.com> domain names.
Complainant asserts that Respondent registered and is using the <fawndango.com> and <fandanglo.com> domain names. Complainant contends that the <fawndango.com> and <fandanglo.com> domain names resolve to websites which display an offer to take a short survey in exchange for the opportunity to win a prize. Complainant contends that in order to continue to take the survey Internet users are prompted to provide personal information. The panels in Juno Online Servs., Inc. v. Nelson, FA 241972 (Nat. Arb. Forum Mar. 29, 2004), and Wells Fargo & Co. v. Maniac State, FA 608239 (Nat. Arb. Forum Jan. 19, 2006), held that phishing schemes are evidence of bad faith. Therefore, the Panel finds that Respondent’s registration and use of the <fawndango.com> and <fandanglo.com> domain names is in bad faith under Policy ¶ 4(a) (iii).
Thirdly, Complainant contends that the <faxndango.com>, <fandahngo.com>, <fandanglo.com>, <fazndango.com>, <fandzango.com>, <fandnango.com>, <fandwango.com>, <fandanjgo.com>, <fawndango.com>, <fandcango.com>, <fahndango.com>, <fandantgo.com>, <fnadango.com>, <fzndango.com>, <fandsngo.com>, <faneango.com>, <ffandango.com>, <fandsango.com>, <fandazngo.com>, <fandxango.com>, and <fanxdango.com> domain names were registered and are being used in bad faith because they are typosquatted versions of Complainant’s marks. Complainant asserts that the disputed domain names are simple misspellings of the FANDANGO and F FANDANGO marks. The Panel finds that the <ffandango.com> domain name is actually identical to the F FANDANGO mark and thus it is not misspelled or necessarily a product of typosquatting. The Panel finds that the <faxndango.com>, <fandahngo.com>, <fandanglo.com>, <fazndango.com>, <fandzango.com>, <fandnango.com>, <fandwango.com>, <fandanjgo.com>, <fawndango.com>, <fandcango.com>, <fahndango.com>, <fandantgo.com>, <fnadango.com>, <fzndango.com>, <fandsngo.com>, <faneango.com>, <fandsango.com>, <fandazngo.com>, <fandxango.com>, and <fanxdango.com> domain names were registered and are used in bad faith because they are typosquatted versions of Complainant’s mark. See Computerized Sec. Sys., Inc. v. Hu, FA 157321 (Nat. Arb. Forum June 23, 2003) (finding that the respondent engaged in typosquatting, which is evidence of bad faith registration and use under Policy ¶ 4(a) (iii)); see also Internet Movie Database, Inc. v. Temme, FA 449837 (Nat. Arb. Forum May 24, 2005) (“Respondent's registration of the domain names in dispute constitutes bad faith because the domain names are merely typosquatted versions of the [complainant’s] IMDB mark.).
Fourthly, in addition and having regard to the totality of the evidence, the Panel finds that, in view of Respondent’s registration of the disputed domain names using the FANDANGO and the F FANDANGO marks and in view of the conduct that Respondent engaged in when using the domain names, Respondent registered and used the disputed domain names in bad faith within the generally accepted meaning of that expression.
Complainant has thus made out the third of the three elements that it must establish.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <faxndango.com>, <fandahngo.com>, <fandanglo.com>, <fazndango.com>, <fandzango.com>, <fandnango.com>, <fandwango.com>, <fandanjgo.com>, <fawndango.com>, <fandcango.com>, <fahndango.com>, <fandantgo.com>, <fnadango.com>, <fzndango.com>, <fandsngo.com>, <faneango.com>, <ffandango.com>, <fandsango.com>, <fandazngo.com>, <fandxango.com>, and <fanxdango.com> domain names be TRANSFERRED from Respondent to Complainant .
The Honourable Neil Anthony Brown QC, Panelist
Dated: May 25, 2012
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