Spark Networks USA, LLC v. Private Registration - bmon / Private Registration (auc) / Private Registration (name)
Claim Number: FA1304001494704
Complainant is Spark Networks USA, LLC (“Complainant”), represented by CitizenHawk, Inc., California, USA. Respondent is Private Registration - bmon / Private Registration (auc) / Private Registration (name) (“Respondent”), Cayman Islands.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <americansngles.com>, <blaclsingles.com>, <blacksinles.com>, <christianmengle.com>, <christianmiggle.com>, and <jdatge.com>, registered with Tucows, 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.
Hon. Karl V. Fink (Ret.), as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on April 12, 2013; the National Arbitration Forum received payment on April 12, 2013.
On April 15, 2013, Tucows, Inc. confirmed by e-mail to the National Arbitration Forum that the <americansngles.com>, <blaclsingles.com>, <blacksinles.com>, <christianmengle.com>, <christianmiggle.com>, and <jdatge.com> domain names are registered with Tucows, Inc. and that Respondent is the current registrant of the names. Tucows, Inc. has verified that Respondent is bound by the Tucows, Inc. 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 April 19, 2013, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 9, 2013 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@americansngles.com, postmaster@blaclsingles.com, postmaster@blacksinles.com, postmaster@christianmengle.com, postmaster@christianmiggle.com, and postmaster@jdatge.com.
Also on April 19, 2013, 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 21, 2013, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Hon. Karl V. Fink (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" 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
i. Respondent has not been commonly known by the disputed domain names.
ii. Respondent is using some of the disputed domain names to redirect unsuspecting Internet users to a website featuring generic links to third-party websites, some of which directly compete with Complainant’s business. Respondent is using some of the disputed domain names to redirect Internet users to a website operated by Complainant’s competitors.
i. Respondent has also listed the disputed domain name for sale.
ii. Respondent is a recalcitrant, serial cybersquatter/typosquatter.
iii. Respondent’s advertised pay-per-click links displayed on the resolving websites promote products that compete with Complainant.
iv. Respondent has registered and used the disputed domain names to attract and mislead consumers for its own profit.
As it relates to the AMERICAN SINGLES mark, the earliest date on which Respondent registered the disputed domain name was November 25, 2002. As it relates to the BLACKSINGLES.COM mark, the earliest date on which Respondent registered the disputed domain name was September 5, 2005. As it relates to the CHRISTIANMINGLE mark, the earliest date on which Respondent registered the disputed domain name was July 7, 2007. As it relates to the JDATE mark, the earliest date on which Respondent registered the disputed domain name was April 11, 2008.
B. Respondent
Respondent failed to submit a Response in this proceeding.
For reasons set forth below, the Panel finds Complainant is entitled to the relief requested.
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.”).
Complainant, Spark Networks USA, LLC, asserts that it offers convenient and safe places for likeminded singles to connect. Complainant argues that it went on to launch or acquire a variety of online personals websites and now operates a network of religious, ethnic, special interest, and geographically-targeted online singles communities including, among them: <Spark.com>, <BlackSingles.com>, <ChristianMingle.com>, <Interracialsingles.com>, <BWWPersonalsPlus.com>, <CatholicMingle.com>, and <SingleParentsMingle.com>. Complainant contends that it is the owner of trademark registrations with the USPTO for the AMERICAN SINGLES mark (Reg. No. 2,608,475, registered August 20, 2002), for the BLACKSINGLES.COM mark (Reg. No. 2,853,581, registered June 15, 2004), for the CHRISTIANMINGLE mark (Reg. No. 2,940,052, registered April 12, 2005), and for the JDATE mark (e.g., Reg. No. 2,420,967, registered January 16, 2001). The Panel notes that although Respondent appears to reside in the Cayman Islands, Policy ¶ 4(a)(i) does not require that Complainant register its mark in the country that Respondent operates in. See Renaissance Hotel Holdings, Inc. v. Renaissance Cochin, FA 932344 (Nat. Arb. Forum Apr. 23, 2007) (finding that it does not matter whether the complainant has registered its trademark in the country in which the respondent resides, only that it can establish rights in some jurisdiction). Consequently, the Panel finds that Complainant’s registration of the marks with the USPTO sufficiently establish its rights in the marks pursuant to Policy ¶ 4(a)(i). See Metro. Life Ins. Co. v. Bonds, FA 873143 (Nat. Arb. Forum Feb. 16, 2007) (finding that a USPTO trademark registration adequately demonstrates a complainant’s rights in a mark under Policy ¶ 4(a)(i)).
Complainant argues that Respondent’s disputed domain names are confusingly similar to Complainant’s marks because they differ by only a single character from Complainant’s mark. The Panel notes that Respondent removes a letter in its <americansngles.com> domain names. The Panel finds that the removal of letters in the mark does not distinguish Respondent’s domain name from Complainant’s mark under Policy ¶ 4(a)(i). See Pfizer Inc. v. BargainName.com, D2005-0299 (WIPO Apr. 28, 2005) (holding that the <pfzer.com> domain name was confusingly similar to the complainant’s PFIZER mark, as the respondent simply omitted the letter “i”). The Panel notes that Respondent removes the space in Complainant’s AMERICAN SINGLES mark and adds a generic top-level domain (“gTLD”) to its domain name. The Panel holds that the removal of spaces and addition of a gTLD does not negate confusing similarity under Policy ¶ 4(a)(i). See Bond & Co. Jewelers, Inc. v. Tex. Int’l Prop. Assocs., FA 937650 (Nat. Arb. Forum Apr. 30, 2007) (finding that the elimination of spaces between terms and the addition of a gTLD do not establish distinctiveness from the complainant’s mark under Policy ¶ 4(a)(i)). Thus, the Panel finds that Respondent’s <americansngles.com> domain name is confusingly similar to Complainant’s AMERICAN SINGLES mark pursuant to Policy ¶ 4(a)(i).
The Panel notes that Respondent substitutes one letter for another in its <blaclsingles.com> domain name. The Panel determines that the substitution of letters in a mark is inconsequential to a Policy ¶ 4(a)(i) analysis. See Belkin Components v. Gallant, FA 97075 (Nat. Arb. Forum May 29, 2001) (finding the <belken.com> domain name confusingly similar to the complainant's BELKIN mark because the name merely replaced the letter “i” in the complainant's mark with the letter “e”). The Panel notes that Respondent removes the letter “g” in its <blacksinles.com> domain name. The Panel holds that the removal of letters in a mark does not differentiate Respondent’s domain name from Complainant’s mark pursuant to Policy ¶ 4(a)(i). See Pfizer Inc. v. BargainName.com, D2005-0299 (WIPO Apr. 28, 2005) (holding that the <pfzer.com> domain name was confusingly similar to the complainant’s PFIZER mark, as the respondent simply omitted the letter “i”). Accordingly, the Panel finds that Respondent’s <blaclsingles.com> and <blacksinles.com> domain names are confusingly similar to Complainant’s BLACKSINGLES.COM mark under Policy ¶ 4(a)(i).
The Panel notes that Respondent substitutes letters in its <christianmengle.com>, and <christianmiggle.com> domain names. The Panel holds that Respondent’s substitution of letters in a domain name does not negate confusing similarity under Policy ¶ 4(a)(i). See Belkin Components v. Gallant, FA 97075 (Nat. Arb. Forum May 29, 2001) (finding the <belken.com> domain name confusingly similar to the complainant's BELKIN mark because the name merely replaced the letter “i” in the complainant's mark with the letter “e”). The Panel notes that Respondent adds a gTLD to each domain name. The Panel finds that the addition of a gTLD is irrelevant to a Policy 4(a)(i) confusingly similar analysis under Policy ¶ 4(a)(i). See Bank of Am. Corp. v. McCall, FA 135012 (Nat. Arb. Forum Dec. 31, 2002) (holding that attaching a gTLD is “unable to create a distinction capable of overcoming a finding of confusing similarity”). Therefore, the Panel determines that Respondent’s <christianmengle.com>, and <christianmiggle.com> domain names are confusingly similar to Complainant’s CHRISTIANMINGLE mark pursuant to Policy ¶ 4(a)(i).
The Panel notes that Respondent adds a letter to its <jdatge.com> domain name. The Panel determines that the addition of a letter to a domain name does not differentiate Respondent’s domain name from Complainant’s mark under Policy ¶ 4(a)(i). See 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)). The Panel notes that Respondent adds a gTLD to its <jdatge.com> domain name. The Panel holds that the addition of a gTLD to a domain name is inconsequential to a Policy ¶ 4(a)(i) analysis. See Countrywide Fin. Corp. v. Johnson & Sons Sys., FA 1073019 (Nat. Arb. Forum Oct. 24, 2007) (holding that the addition of the generic top-level domain (“gTLD”) “.com” was irrelevant). Accordingly, the Panel finds that Respondent’s <jdatge.com> domain name is confusingly similar to Complainant’s JDATE mark pursuant to Policy ¶ 4(a)(i).
Complainant has proven this element.
Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name 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.”).
Complainant argues that Respondent has not been commonly known by the disputed domain names. The Panel notes that the WHOIS information identifies “Private Registration - bmon / Private Registration (auc) / Private Registration (name)” as the registrant of the disputed domain names. Complainant asserts that Respondent is not sponsored by or legitimately affiliated with Complainant in any way. Complainant argues that it has not given Respondent permission to use Complainant’s mark in a domain name. The Panel notes that Respondent fails to provide evidence that it is known by the domain name. The Panel determines that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See 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).
Complainant contends that Respondent is using some of the disputed domain names to redirect unsuspecting Internet users to a website featuring generic links to third-party websites, some of which directly compete with Complainant’s business. The Panel notes that Respondent’s <americansngles.com>, <blaclsingles.com>, <blacksinles.com>, <christianmengle.com>, and <christianmiggle.com> domain names lead to hyperlink directories, featuring links to competing sites such as “Senior Singles Dating Sites,” “TOP 10 DATING SITES 2013,” “FREE CHRISTIAN DATING,” and others. The Panel finds that Respondent’s use of the <americansngles.com>, <blaclsingles.com>, <blacksinles.com>, <christianmengle.com>, and <christianmiggle.com> domain names to provide links to competing hyperlinks is not a bona fide offering of goods and services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See H-D Michigan Inc. v. Buell, FA 1106640 (Nat. Arb. Forum Jan. 2, 2008) (finding that, because the “[r]espondent’s disputed domain names resolve to a website featuring a series of advertising links to various third-parties, many of whom offer products and services in direct competition with those offered under [the complainant’s] mark,” the respondent is not using the disputed domain names for a bona fide offering of goods or services or a legitimate noncommercial or fair use).
Complainant claims that Respondent is using some of the disputed domain names to redirect Internet users to a website operated by Complainant’s competitor. The Panel notes that Respondent’s <jdatge.com> domain name links to the competing dating website titled “DateAgency.” The Panel finds that Respondent’s competing use of the <jdatge.com> domain name is also not a Policy ¶ 4(c)(i) bona fide offering of goods and services or a Policy ¶ 4(c)(iii) legitimate noncommercial or fair use. See Ameritrade Holdings Corp. v. Polanski, FA 102715 (Nat. Arb. Forum Jan. 11, 2002) (finding that the respondent’s use of the disputed domain name to redirect Internet users to a financial services website, which competed with the complainant, was not a bona fide offering of goods or services).
Complainant has proven this element.
Complainant contends that Respondent is a recalcitrant, serial cybersquatter/typosquatter. Complainant claims that searches through the NAF and WIPO UDRP decision databases reveal that Respondent has engaged in an ongoing pattern of such behavior. See National Westminster Bank plc v. Private Registration-bmon, FA 1292099 (Nat. Arb. Forum December 31, 2009); Max Mara Fashion Grp. S.r.l. v. Private Registration (name), FA 1417298 (Nat. Arb. Forum January 23, 2012). The Panel determines that Respondent’s prior UDRP proceedings that resulted in findings of bad faith and transfer demonstrates bad faith use and registration pursuant to Policy ¶ 4(b)(ii). See Liberty Mut. Ins. Co. v. Bin g Glu, FA 1036129 (Nat. Arb. Forum Sept. 2, 2007) (holding prior UDRP proceedings were sufficient evidence of a pattern of bad faith registrations).
Complainant argues that Respondent’s advertised pay-per-click links displayed on the resolving websites promote products that compete with Complainant. The Panel notes that Respondent’s <americansngles.com>, <blaclsingles.com>, <blacksinles.com>, <christianmengle.com>, and <christianmiggle.com> domain names lead to hyperlink directories, featuring links to competing sites such as “Free Online Dating,” “MEET BLACK SINGLES ONLINE,” “Dating Site,” and others. The Panel holds that Respondent’s use of the <americansngles.com>, <blaclsingles.com>, <blacksinles.com>, <christianmengle.com>, and <christianmiggle.com> domain names to offer competing links disrupts Complainant’s business pursuant to Policy ¶ 4(b)(iii). See Univ. of Texas Sys. v. Smith, FA 1195696 (Nat. Arb. Forum July 7, 2008) (finding that using the resolving website to divert Internet users to the complainant’s competitors constituted bad faith registration and use under Policy ¶ 4(b)(iii)).
Complainant contends that that Respondent’s <jdatge.com> domain name resolves to <DATEAGENCY.ORG>, a website that sells services that compete with Complainant’s services. The Panel determines that Respondent’s competing use of the <jdatge.com> domain name disrupts Complainant’s business under 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).”).
Complainant asserts that Respondent has registered and used the disputed domain names to attract and mislead consumers for its own profit. Complainant argues that Respondent has use several of the disputed domain names to set up a “click through” website, through which it likely receives revenue. The Panel notes that Respondent’s <americansngles.com>, <blaclsingles.com>, <blacksinles.com>, <christianmengle.com>, and <christianmiggle.com> domain names link to websites that display competing hyperlinks. The Panel holds that Respondent’s use of the <americansngles.com>, <blaclsingles.com>, <blacksinles.com>, <christianmengle.com>, and <christianmiggle.com> domain names to host pages featuring competing hyperlinks evidences bad faith use and registration pursuant to Policy ¶ 4(b)(iv). See Associated Newspapers Ltd. v. Domain Manager, FA 201976 (Nat. Arb. Forum Nov. 19, 2003) (“Respondent's prior use of the <mailonsunday.com> domain name is evidence of bad faith pursuant to Policy ¶ 4(b)(iv) because the domain name provided links to Complainant's competitors and Respondent presumably commercially benefited from the misleading domain name by receiving ‘click-through-fees.’”).
Complainant contends that that Respondent’s <jdatge.com> domain name resolves to <DATEAGENCY.ORG>, a website that sells services that compete with Complainant’s services. The Panel finds that Respondent’s competing use of the <jdatge.com> domain name evidences Respondent’s attempt to divert Internet users for its own commercial gain, showing bad faith use and registration under Policy ¶ 4(b)(iv). See Identigene, Inc. v. Genetest Labs., D2000-1100 (WIPO Nov. 30, 2000) (finding bad faith where the respondent's use of the domain name at issue to resolve to a website where similar services are offered to Internet users is likely to confuse the user into believing that the complainant is the source of or is sponsoring the services offered at the site).
Complainant has proven this element.
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is ORDERED that the <americansngles.com>, <blaclsingles.com>, <blacksinles.com>, <christianmengle.com>, <christianmiggle.com>, and <jdatge.com> domain names be TRANSFERRED from Respondent to Complainant.
Hon. Karl V. Fink (Ret.), Panelist
Dated: May 23, 2013
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