Kijiji International Limited Corporation v. Giuseppe Giovanni Caruso
Claim Number: FA1711001758956
Complainant is Kijiji International Limited Corporation (“Complainant”), represented by Amanda Marston of Holland & Hart LLP, Colorado, USA. Respondent is Giuseppe Giovanni Caruso (“Respondent”), Italy.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <kijijiescort.com>, registered with Tucows Domains Inc..
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Kenneth L. Port as Panelist.
Complainant submitted a Complaint to the Forum electronically on November 16, 2017; the Forum received payment on November 16, 2017.
On November 20, 2017, Tucows Domains Inc. confirmed by e-mail to the Forum that the <kijijiescort.com> domain name is registered with Tucows Domains Inc. and that Respondent is the current registrant of the name. Tucows Domains Inc. has verified that Respondent is bound by the Tucows Domains 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 November 21, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 11, 2017 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@kijijiescort.com. Also on November 21, 2017, 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 Forum transmitted to the parties a Notification of Respondent Default.
On December 15, 2017, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Kenneth L. Port as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the 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 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 name be transferred from Respondent to Complainant.
A. Complainant
Complainant, Kijiji International Limited Corporation, is a global leader in the field of online commerce and shopping and is a subsidiary of eBay, Inc. Complainant uses the KIJIJI mark in connection with online classified advertising services. Complainant has rights in the mark based upon registration with the United States Patent and Trademark Office (“USPTO”) (e.g. Reg. No. 3,303,570, registered Oct. 2, 2007). See Compl. Ex. 3. Respondent’s <kijijiescort.com> is confusingly similar to Complainant’s mark as it includes the entirety of the KIJIJI mark in combination with the descriptive term “escort”, and the generic top level domain (“gTLD”) “.com.”
Respondent does not have rights or legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name and Complainant has not granted respondent permission or license to use the KIJIJI mark any purpose. Respondent is not using the disputed domain name to make a bona fide offering of goods or services or for a legitimate non-commercial or fair use. Rather, Respondent has used the <kijijiescort.com> domain name to advertise prostitution services. See Compl. Ex. 7. In addition, the <kijijiescort.com> domain name currently fails to resolve to an active website.
Respondent has registered and used the disputed domain name in bad faith. First, Respondent has used the <kijijiescort.com> domain name to promote prostitution services. Lastly, Respondent had actual knowledge of Complainant’s rights in the KIJIJI mark at the time it registered and subsequently used the disputed domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding. The disputed domain name was created on July 10, 2012.
The Panel finds that the disputed domain name is confusingly similar to Complainant’s valid and subsisting trademark; that Respondent has not legitimate rights or interest in or to the disputed domain name; and that Respondent has engaged in bad faith use and registration of the disputed domain name.
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(f), 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 (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 Panel finds that the disputed domain name, <kijijiescort.com>, is confusingly similar to Complainant’s valid and subsisting trademark, KIJIJI. Complainant has adequately plead its rights and interests in and to this trademark. Respondent arrives at the disputed domain name by merely taking the mark in its entirety, adding the generic word “escort” and the g TLD “.com.” This is inadequate to distinguish the disputed domain name from Complainant’s trademark.
As such, the Panel finds that the disputed domain name is confusingly similar to Complainant’s trademark.
The Panel further finds that Respondent has no rights or legitimate interests in or to the disputed domain name. Respondent has no rights, license or permission to register the disputed domain name. Respondent is not commonly known by the disputed domain name. Neither does Respondent use the disputed domain name in a bona fide offering of goods or services or a legitimate noncommercial or fair use as instead, Complainant contends, Respondent used <kijijiescort.com> to advertise prostitution services. Use of a confusingly similar domain name to operate a website containing adult-oriented material and advertising prostitution services is not a legitimate use under either Policy ¶ 4(c)(i) or Policy ¶ 4(c)(iii). See Mattel, Inc. v. David Kopsky c/o Mercedes, FA0703000934826 (Forum Apr. 17, 2007) (“The Panel finds that use of a domain name that is confusingly similar to an established mark for the purpose of operating a website containing adult-oriented material is neither a bona fide offering of goods or services under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).”). Here, Respondent’s website has displayed adult content with a link labeled “18+ entra” that led consumers to a page listing name and explicit images of various women advertising sexual services. See Compl. Ex. 7. Therefore, the Panel finds that Respondent has not established any bona fide offering of goods or services or any legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii), respectively.
In addition, Complainant contends that the <kijijiescort.com> domain name currently fails to resolve to an active website. Failure to make an active use of the domain name is also not a bona fide offering of goods or services under the Policy. See Bloomberg L.P. v. SC Media Servs. & Info. SRL, FA 296583 (Forum Sept. 2, 2004) (“Respondent is wholly appropriating Complainant’s mark and is not using the <Bloomberg.ro> domain name in connection with an active website. The Panel finds that the [failure to make an active use] of a domain name that is identical to Complainant’s mark is not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(iii).”). However, as Complainant provides no evidence to support this assertion, the Panel will not consider it further. As there is adequate evidence in the record to conclude that Respondent lacks rights or legitimate interests in the disputed domain name, this conclusion does not diminish Complainant’s argument.
As such, the Panel finds that Respondent has no rights or legitimate interests in or to the disputed domain name.
The Panel also finds that Respondent has engaged in bad faith use and registration of the disputed domain name. Respondent has used the Disputed Domain Name to promote prostitution services, presumably for a profit. Prior panels have found that use of a confusingly similar domain name to operate a website containing adult-oriented material constitutes bad faith use under the Policy. See Mattel, Inc. v. David Kopsky c/o Mercedes, FA0703000934826 (Forum Apr. 17, 2007) (finding use of domain name for website promoting escort service to be bad faith use because users seeking Complainant’s legitimate website are likely to be confused as to Complainant’s sponsorship or affiliation with the Respondent’s site); see also Radisson Hotels International, Inc. v. Uee Gleb, FA0811001233302 (Forum Dec. 30, 2009) (“Respondent runs an escort service at a website referred by the disputed domain name. Respondent likely commercially gains by diverting some number of Internet users searching for Complainant’s business to Respondent’s website. .. Pursuant to Policy ¶ 4(b)(iv), it shows Respondent’s registration and use of the disputed domain name is in bad faith.”). Complainant provides screenshot evidence of the former resolving website for Respondent’s disputed domain name. See Compl. Ex. 7. The Panel finds that Respondent registered and used the <kijijiescort.com> domain name in bad faith per Policy ¶ 4(b)(iv).
Last, Complainant argues that Respondent registered the disputed domain name with actual knowledge of Complainant’s mark. Complainant asserts that the mark carries international fame, is federally registered with the USPTO, and Respondent was previously involved in a dispute with Complainant in which it was ordered to transfer the infringing domain name as evidence of Respondent’s actual knowledge of the KIJIJI mark. See Compl. Ex. 8. Given the totality of the circumstances, the Panel finds that Respondent had actual knowledge of Complainant’s rights in the KIJIJI mark when it registered and subsequently used <kijijiescort.com>, thereby supporting a finding of bad faith under 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 <kijijiescort.com> domain name transferred from Respondent to Complainant.
Kenneth L. Port, Panelist
Dated: December 18, 2017
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