Brownstone Publishing, LLC, d/b/a Angie's List v. Above.com Domain Privacy
Claim Number: FA1408001573469
Complainant is Brownstone Publishing, LLC, d/b/a Angie's List (“Complainant”), represented by CitizenHawk, Inc., California, USA. Respondent is Above.com Domain Privacy (“Respondent”), Australia.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <angiaslist.com>, <angierslist.com>, <angiesliast.com>, <angieslict.com>, <angieslidt.com>, <angieslift.com>, <angieslilst.com>, <angiesliost.com>, <angieslis.com>, <angieslisat.com>, <angieslise.com>, <angieslistg.com>, <angieslisty.com>, <angieslit.com>, <angiesliust.com>, <angiesllst.com>, <angiesloist.com>, <angieswlist.com>, <angileslist.com>, <antieslist.com>, <aqngieslist.com>, and <ngieslist.com> registered with ABOVE.COM PTY LTD.
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.
David E. Sorkin as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on August 5, 2014; the National Arbitration Forum received payment on August 5, 2014.
On August 6, 2014, ABOVE.COM PTY LTD. confirmed by email to the National Arbitration Forum that the <angiaslist.com>, <angierslist.com>, <angiesliast.com>, <angieslict.com>, <angieslidt.com>, <angieslift.com>, <angieslilst.com>, <angiesliost.com>, <angieslis.com>, <angieslisat.com>, <angieslise.com>, <angieslistg.com>, <angieslisty.com>, <angieslit.com>, <angiesliust.com>, <angiesllst.com>, <angiesloist.com>, <angieswlist.com>, <angileslist.com>, <antieslist.com>, <aqngieslist.com>, and <ngieslist.com> domain names are registered with ABOVE.COM PTY LTD.; and identified the registrant of five of the domain names (<angieslidt.com>, <ngieslist.com>, <angieslilst.com>, <angieslis.com>, and <angieslit.com>) as Host Master, Transure Enterprise Ltd, Tortola, British Virgin Islands, and the registrant of the remaining domain names as Shu Lin, Zhongshan District, Dalian, China. ABOVE.COM PTY LTD. has verified that the registrants are bound by the ABOVE.COM PTY LTD. registration agreement and have thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On August 7, 2014, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 27, 2014 by which Respondent could file a Response to the Complaint, via email to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@angiaslist.com, postmaster@angierslist.com, postmaster@angiesliast.com, postmaster@angieslict.com, postmaster@angieslidt.com, postmaster@angieslift.com, postmaster@angieslilst.com, postmaster@angiesliost.com, postmaster@angieslis.com, postmaster@angieslisat.com, postmaster@angieslise.com, postmaster@angieslistg.com, postmaster@angieslisty.com, postmaster@angieslit.com, postmaster@angiesliust.com, postmaster@angiesllst.com, postmaster@angiesloist.com, postmaster@angieswlist.com, postmaster@angileslist.com, postmaster@antieslist.com, postmaster@aqngieslist.com, and postmaster@ngieslist.com. Also on August 7, 2014, 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 September 4, 2014, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed David E. Sorkin 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
Complainant operates Angie’s List, a membership-based website containing reviews and references for local businesses. Complainant’s membership grew from 1,000 members in 1997 to more than 2 million members in 2013. Complainant owns various U.S. trademark registrations for ANGIE’S LIST dating back to 1997.
The disputed domain names were registered between 2008 and 2010. Complainant contends that each of the disputed domain names is confusingly similar to Complainant’s mark, describing Respondent’s behavior as typosquatting. Complainant states that the domain names are being used for clickthrough websites, using Complainant’s mark and variations thereof to provide links to products and services similar to those offered by Complainant, for Respondent’s commercial gain. Complainant asserts that Respondent has not been commonly known by the disputed domain names, is not sponsored by or legitimately affiliated with Complainant, and has not received permission to use Complainant’s mark. Complainant also notes that the domain names were all registered with apparently falsified or incomplete Whois contact information, and suggests that this demonstrates a desire to avoid being held accountable. On these grounds Complainant contends that Respondent has no rights or legitimate interests in respect of the disputed domain names, and that the domain names were registered and are being used in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that each of the disputed domain names is confusingly similar to a mark in which Complainant has rights; that Respondent lacks rights or legitimate interests in respect of the disputed domain names; and that the disputed domain names were registered and have been used in bad faith.
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.”).
While there is only one Respondent in this proceeding, the Respondent is apparently only the nominal registrant of the disputed domain names, and has identified two other entities as the actual (beneficial) registrants. Under paragraph 3(c) of the Rules, a complaint may relate to multiple domain names only if they have been “registered by the same domain-name holder.” Panels have interpreted this to permit a complaint involving multiple Respondents where (1) the domain names or corresponding websites are subject to common control and (2) the consolidation would be fair and equitable to all parties. See, e.g., Ass’n Robert Mazars v. François Varin, D2014-0498 (WIPO July 30, 2014); HLT Domestic IP LLC v. Boris Chevkov / Macky Tong, FA 1558971 (Nat. Arb. Forum June 23, 2014); ArcelorMittal v. Above.com Domain Privacy, No. 100359 (Czech Arb. Ct. Feb. 27, 2012); WIPO Overview of WIPO Panel Views on Selected UDRP Questions, § 4.16 (2d ed. 2011), available at http://www.wipo.int/amc/en/domains/search/overview/. The Complainant bears the burden of establishing that consolidation is proper. See WIPO Overview, supra, § 4.16.
The domain names here all share the same nominal registrant, Above.com Domain Privacy, making consolidation entirely proper under a literal interpretation of paragraph 3(c), and no objection has been raised to consolidation. The domain names resolve to separate websites, but the sites are all similar and in some instances nearly identical to one another. Furthermore, the entities involved here have been found to be a single entity in previous proceedings under the Policy. See F. Hoffmann-La Roche AG v. Above.com Domain Privacy / Shu Lin, Shu Lin Enterprises Limited / Host Master, Transure Enterprise Ltd, D2010-1986 (WIPO Jan. 19, 2011); LEGO Juris A/S v. Shu Lin/Transure Enterprise Ltd/ Above.com Domain Privacy, D2010-1648 (WIPO Nov. 19, 2010); AutoZone Parts, Inc. and ALLDATA LLC v. Shu Lin c/o Shu Lin Co aka Host Master c/o Transure Enterprise Ltd, FA 1330042 (Nat. Arb. Forum Aug. 3, 2010); Telefonaktiebolaget L M Ericsson (Ericsson) v. Above.com Domain Privacy/Transure Enterprise Ltd./ Shu Lin, Shu Lin Enterprises Limited, D2010-0566 (WIPO June 14, 2010). See also ArcelorMittal v. Above.com Domain Privacy, supra (noting that “Above.com Domain Privacy and Transure Entreprise [sic] Ltd are jointly constant respondents in numerous UDRP cases,” citing 71 examples). For these reasons, the Panel considers consolidation to be appropriate in this proceeding.
Each of the disputed domain names incorporates Complainant’s registered trademark, with the omission of the apostrophe and the introduction of minor typographical errors. Neither these alterations nor the addition of the “.com” top-level domain is sufficient to distinguish the domain names from Complainant’s mark. See, e.g., Victoria’s Secret Stores Brand Mgmt., Inc. v. Bolama Tech. Ltd. / Mr Bolama, FA 1427044 (Nat. Arb. Forum Mar.13, 2012) (finding <victoriassecrte.com> confusingly similar to VICTORIA’S SECRET). The Panel finds that the disputed domain names are confusingly similar to a mark in which Complainant has rights.
Under the Policy, the Complainant must first make a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain names, and then the burden shifts to the Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006).
Each of the disputed domain names incorporates Complainant’s mark without authorization, and apparently has been used solely to display pay-per-click advertising keyed to Complainant’s marks. Complainant has made a prima facie case that Respondent lacks rights and legitimate interests in the domain names, and Respondent has failed to come forward with any evidence of such rights or interests. Accordingly, the Panel finds that Complainant has sustained its burden of proving that Respondent lacks rights or legitimate interests in respect of the disputed domain names.
Finally, Complainant must show that the disputed domain names were registered and have been used in bad faith. Under paragraph 4(b)(iv) of the Policy, bad faith may be shown by evidence that “by using the domain name, [Respondent] intentionally attempted to attract, for commercial gain, Internet users to [Respondent’s] web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of [Respondent’s] web site or location or of a product or service on [Respondent’s] web site or location.”
Respondent’s registration of domain names that are nearly identical to Complainant’s mark, together with the use of the domain names for websites consisting of pay-per-click links to goods or services competitive with those offered by Complainant, is indicative of bad faith under paragraph 4(b)(iv). See, e.g., OneWest Bank, FSB v. Xiaolei Wang, FA 1534863 (Nat. Arb. Forum Jan. 15, 2014); AIDA Cruises German Branch of Societá di Crociere Mercurio S.r.l., v. Caribbean Online Int’l Ltd. / BelgiumDomains LLC, D2008-1470 (WIPO Dec. 2, 2008). Respondent’s obvious typosquatting and its use of a privacy service to conceal its identity are further indications of bad faith. See, e.g., Lockheed Martin Corp. v. Mr Healrd Diviolrg, FA 1562892 (Nat. Arb. Forum July 1, 2014). Accordingly, the Panel concludes that the disputed domain names were registered and have been used in bad faith.
Having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <angiaslist.com>, <angierslist.com>, <angiesliast.com>, <angieslict.com>, <angieslidt.com>, <angieslift.com>, <angieslilst.com>, <angiesliost.com>, <angieslis.com>, <angieslisat.com>, <angieslise.com>, <angieslistg.com>, <angieslisty.com>, <angieslit.com>, <angiesliust.com>, <angiesllst.com>, <angiesloist.com>, <angieswlist.com>, <angileslist.com>, <antieslist.com>, <aqngieslist.com>, and <ngieslist.com> domain names be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: September 4, 2014
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