Trulia, Inc. v. Armen A
Claim Number: FA1410001586491
Complainant is Trulia, Inc. (“Complainant”), California, USA, represented by Alexander J.A. Garcia of Perkins Coie LLP, Washington, USA. Respondent is Armen A (“Respondent”), Ontario, Canada.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <trulia.rentals> (“the Domain Name”), registered with GoDaddy LLC.
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.
Alan L. Limbury, as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on October 23, 2014; the National Arbitration Forum received payment on October 23, 2014.
On October 24, 2014, GoDaddy LLC confirmed by e-mail to the National Arbitration Forum that the Domain Name is registered with GoDaddy LLC and that Respondent is the current registrant of the name. GoDaddy LLC has verified that Respondent is bound by the GoDaddy LLC 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 October 24, 2014, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 13, 2014 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@trulia.rentals. Also on October 24, 2014, 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.
A timely Response was received and determined to be complete on November 11, 2014.
A timely additional submission in compliance with Supplemental Rule 7 was received from the Complainant on November 14, 2014.
On November 19, 2014, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Alan L. Limbury as Panelist.
Complainant requests that the Domain Name be transferred from Respondent to Complainant.
A. Complainant
Complainant has been using the trademark TRULIA in connection with real estate services, including rentals, since 2005. It registered that mark in the USA under No. 3197657 on January 7, 2007 and in Canada under No. TMA712471 on April 22, 2008.
The Domain Name was registered by the Respondent on May 28, 2014. It resolves to a free GoDaddy parking page displaying pay-per-click links to websites offering real estate services, including rentals.
The Domain Name is confusingly similar to Complainant’s TRULIA mark and Respondent has no rights or legitimate interests in the Domain Name, which was registered and is being used in bad faith.
The TRULIA mark is associated exclusively with Complainant and has no independent dictionary meaning. Therefore, Respondent had no reason to choose the Domain Name except to create the impression of an association with or to trade off the goodwill of Complainant. Respondent is not commonly known by the Domain Name and has never been authorized to use Complainant’s mark.
Respondent is attempting to capitalize on the use of Complainant’s mark to gain revenue from each Internet user that clicks on one of the links on the web site to which the Domain Name resolves. The revenue derived from such advertising is the primary reason Respondent registered and is using the Domain Name—to ride freely on the goodwill associated with Complainant’s trademark.
B. Respondent
Complainant’s TRULIA trademark relates to the field of real estate. The intended use for the Domain Name is not going to be identical or confusingly similar to the trademark. Many sites use the name “Trulia”. One shows it as the name of a baby and as having the Old English meaning of truthful. This is a different meaning from that used under the TRULIA trademark. The term “rentals” does not solely apply to the field of real estate and can be applied to countless other fields. Overall, the use of the Domain Name will not conflict with the use of the trademark.
Accordingly, Respondent should be considered as having rights or legitimate interests in respect of the Domain Name. Respondent intends to use the Domain Name but not in violation of the trademark. Currently, funding to build the website is insufficient, but it will be constructed once the proper funds are available. Although Respondent is not commonly known by the Domain Name, Respondent does have legitimate interests to use the Domain Name which do not conflict or interfere with Complainant’s trademark. Although Complainant was the first to acquire TRULIA, that does not mean that another individual cannot acquire the same name for a different purpose with a different meaning.
Respondent did not [sic] acquire the Domain Name to use it in connection with a bona fide offering of goods or services. Respondent’s intended use for the Domain Name is not to have third-party links to external websites. Currently the Domain Name sends internet users to a page set by GoDaddy by default because construction has not yet begun on a site, as full funding for the intended project is not yet available. This is not a resolved parking page. GoDaddy states “This Web page is parked for FREE, courtesy of GoDaddy.com.” As such, there are no third-party links to external websites to competitors and Respondent has no intention to capitalize or gain revenue on the site via pay-per-click links, as there is no intention to have third-party links to external websites to competitors. Respondent’s intended use for the Domain Name will demonstrate legitimate, fair use that will not conflict with Complainant’s TRULIA trademarks.
The Domain Name should not be considered as having been registered and being used in bad faith. There was no [sic] bona fide basis for the registration of the Domain Name, but at the same time, its intended use is not in bad faith nor to interfere with any of Complainant’s trademarks. Respondent has no intention to sell, rent or transfer the Domain Name registration to the Complainant or Complainant’s competitors for a profit. Respondent has not registered the Domain Name to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding Domain Name. Respondent has not previously engaged in a pattern of such conduct.
Respondent is not making use of the Domain Name which makes prominent or any use of the TRULIA trademark, and does not intend to do so. Furthermore, the Domain Name was not purchased to disrupt the business of Complainant. Respondent is not using the Domain Name to resolve to a pay-per-click web site from which Respondent will derive revenue. The Respondent also has no intention to sell the web site to gain profit.
C. Additional Submissions
Complainant says Respondent’s email address is associated with the domains <meant4rent.ca> and <meant4rent.us>, both of which resolve to websites offering listings for residential and commercial real estate rentals. Thus, Respondent offers services in direct competition with Complainant.
Respondent’s current use of the Domain Name resolves to a website with links to third parties, some of whom are competitors of Complainant.
Respondent has not rebutted Complainant’s prima facie showing that Respondent has no rights or legitimate interests in the Domain Name. As a competitor, Respondent clearly had knowledge of Complainant and its rights in the TRULIA mark prior to registration of the Domain Name and registered it to trade off Complainant’s goodwill and disrupt Complainant’s business by diverting Internet users to Respondent, presumably for profit.
Complainant has established all the elements entitling it to relief.
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 the 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.
The issue to be determined here is not whether the intended use for the Domain Name is going to be identical or confusingly similar to Complainant’s trademark. It is whether the Domain Name itself is identical or confusingly similar to that mark.
Complainant has registered trademark rights in Canada and USA in the mark TRULIA in connection with real estate services, including rentals. The appearance in the Domain Name of the TRULIA mark therefore clearly denotes Complainant and the gTLD suffix “.rentals” reinforces that impression. The Domain Name is clearly confusingly similar to Complainant’s mark.
Complainant has established this element.
Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the Domain Name under Policy ¶ 4(a)(ii), and then the burden shifts to Respondent to show he does have rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006).
Respondent admits that he is not commonly known by the Domain Name and does not deny that he has never been authorized to use Complainant’s mark. Complainant has shown that Respondent is involved in providing real estate rental services in competition with Complainant. It follows that Respondent is highly likely to have been aware of Complainant and its mark when registering the Domain Name.
Despite the old English meaning of the word Trulia and its possible use as a child’s name, Complainant has established that in the field of real estate services in USA and Canada, the word denotes the services of Complainant. Accordingly the Domain Name, which attaches the suffix “.rentals” to Complainant’s trademark, is neither generic nor descriptive. Respondent has not demonstrated any way in which he proposes to use the Domain Name which would avoid conveying to Internet users an association with Complainant.
Complainant has established prima facie that Respondent has no rights or legitimate interests in respect of the Domain Name.
Respondent says his intended use for the Domain Name is not to have third-party links to external websites and that currently the Domain Name sends internet users to a page set by GoDaddy by default because construction has not yet begun on a site, as full funding for the intended project is not yet available.
The fact that the page is set by GoDaddy does not absolve Respondent of responsibility for the links appearing on that page, since Respondent could have chosen not to allow GoDaddy to connect the Domain Name to the parking page. Under the GoDaddy Domain Name Registration Agreement, Go Daddy’s Parked Page Default Setting is an online domain monetization system designed to generate revenue (through the use of pay per click advertising) from domain names that are not actively being used as websites. Registrants may change Go Daddy’s Default Settings at any time during the term of their domain name registration. Through Customer Support, a registrant may choose to display no content on the domain name.
The various hyperlink promotions on the GoDaddy parking page to which the Domain Name resolves include those of competitors of Complainant. Accordingly they do not constitute a Policy ¶ 4(c)(i) bona fide offering of goods or services, or a Policy ¶ 4(c)(iii) legitimate noncommercial or fair use. See, e.g., Compania Mexicana de Aviacion, S.A. de C.V. v. Bigfoot Ventures LLC, FA 1195961 (Nat. Arb. Forum July 14, 2008).
In the absence of any explanation or evidence of Respondent’s intended project, it is not possible to find that he has rebutted Complainant’s prima facie case.
Complainant has established that Respondent has no rights or legitimate interests in the Domain Name.
As mentioned, given Respondent’s association with a real estate rental business, it is highly likely that he was aware of Complainant and its mark when registering the Domain Name. His failure to provide an innocent explanation of his claimed intended project supports the conclusions that he registered the Domain Name in bad faith with intent to trade off Complainant’s goodwill and disrupt Complainant’s business and that, by allowing GoDaddy to connect the Domain Name to a parking page with pay-per-click links to competitors of Complainant, Respondent is using the Domain Name in bad faith.
Complainant has established 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 <trulia.rentals> Domain Name be TRANSFERRED from Respondent to Complainant.
__________________________________________________________________
Alan L. Limbury, Panelist
Dated: December 2, 2014
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