America Online, Inc. v. MegaWeb.com Inc.
Claim
Number: FA0504000463099
Complainant is America Online, Inc. (“Complainant”), represented
by James R. Davis, of Arent Fox PLLC, 1050
Connecticut Avenue, NW, Washington, DC 20036.
Respondent is MegaWeb.com Inc. (“Respondent”),
1201 North Market Street, 18th Floor, Wilmington, DE 19801.
REGISTRAR
AND DISPUTED DOMAIN NAMES
The
domain names at issue are <peopleconnection.com>,
<ajol.com>, <aoel.com>, <aoil.com>, <aolc.com>,
<aolh.com>, <aolk.com>, <aoln.com>,
<aolo.com>, <aool.com>, <aqol.com>,
<auol.com>, <axol.com>, <ayol.com>,
<caol.com>, <eaol.com>, <faol.com>,
<gaol.com>, <jaol.com>, <oaol.com>,
<xaol.com>, <yaol.com>, <zaol.com>,
<ciq.com>, <iseeku.com>, <iseekyou.com>,
<ixq.com>, <jcq.com>, <ncq.com>,
<ocq.com>, <qcq.com>, <ucq.com>,
<vcq.com>, <xcq.com>, and <ycq.com>,
registered with Tucows 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.
Tyrus
R. Atkinson, Jr., as Panelist.
Complainant
submitted a Complaint to the National Arbitration Forum electronically on April
14, 2005; the National Arbitration Forum received a hard copy of the Complaint
on April 18, 2005.
On
April 15, 2005, Tucows Inc. confirmed by e-mail to the National Arbitration
Forum that the domain names <peopleconnection.com>,
<ajol.com>, <aoel.com>, <aoil.com>,
<aolc.com>, <aolh.com>, <aolk.com>,
<aoln.com>, <aolo.com>, <aool.com>,
<aqol.com>, <auol.com>, <axol.com>,
<ayol.com>, <caol.com>, <eaol.com>,
<faol.com>, <gaol.com>, <jaol.com>,
<oaol.com>, <xaol.com>, <yaol.com>,
<zaol.com>, <ciq.com>, <iseeku.com>,
<iseekyou.com>, <ixq.com>, <jcq.com>,
<ncq.com>, <ocq.com>, <qcq.com>,
<ucq.com>, <vcq.com>, <xcq.com>, and
<ycq.com> 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-name disputes brought by third parties in accordance with
ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy").
On
April 20, 2005, a Notification of Complaint and Commencement of Administrative
Proceeding (the "Commencement Notification"), setting a deadline of
May 10, 2005 by which Respondent could file a Response to the Complaint, was
transmitted to Respondent via e-mail, post and fax, to all entities and persons
listed on Respondent's registration as technical, administrative and billing
contacts, and to postmaster@peopleconnection.com, postmaster@ajol.com, postmaster@aoel.com,
postmaster@aoil.com, postmaster@aolc.com, postmaster@aolh.com, postmaster@aolk.com,
postmaster@aoln.com, postmaster@aolo.com, postmaster@aool.com, postmaster@aqol.com,
postmaster@auol.com, postmaster@axol.com, postmaster@ayol.com, postmaster@caol.com,
postmaster@eaol.com, postmaster@faol.com, postmaster@gaol.com, postmaster@jaol.com,
postmaster@oaol.com, postmaster@xaol.com, postmaster@yaol.com, postmaster@zaol.com,
postmaster@ciq.com, postmaster@iseeku.com, postmaster@iseekyou.com, postmaster@ixq.com,
postmaster@jcq.com, postmaster@ncq.com, postmaster@ocq.com, postmaster@qcq.com,
postmaster@ucq.com, postmaster@vcq.com, postmaster@xcq.com, and postmaster@ycq.com
by e-mail.
Having
received no Response from Respondent, using the same contact details and
methods as were used for the Commencement Notification, the National
Arbitration Forum transmitted to the parties a Notification of Respondent
Default.
On
May 13, 2005, pursuant to Complainant's request to have the dispute decided by
a single-member Panel, the National Arbitration Forum appointed Tyrus R.
Atkinson, Jr., 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." 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 makes the following assertions:
1. Respondent’s <peopleconnection.com>,
<ajol.com>, <aoel.com>, <aoil.com>,
<aolc.com>, <aolh.com>, <aolk.com>,
<aoln.com>, <aolo.com>, <aool.com>,
<aqol.com>, <auol.com>, <axol.com>,
<ayol.com>, <caol.com>, <eaol.com>,
<faol.com>, <gaol.com>, <jaol.com>,
<oaol.com>, <xaol.com>, <yaol.com>,
<zaol.com>, <ciq.com>, <iseeku.com>,
<iseekyou.com>, <ixq.com>, <jcq.com>,
<ncq.com>, <ocq.com>, <qcq.com>,
<ucq.com>, <vcq.com>, <xcq.com>, and
<ycq.com> domain names are identical or confusingly similar to
Complainant’s PEOPLE CONNECTION, AOL, and ICQ marks.
2. Respondent does not have any rights or
legitimate interests in the <peopleconnection.com>,
<ajol.com>, <aoel.com>, <aoil.com>,
<aolc.com>, <aolh.com>, <aolk.com>,
<aoln.com>, <aolo.com>, <aool.com>,
<aqol.com>, <auol.com>, <axol.com>,
<ayol.com>, <caol.com>, <eaol.com>,
<faol.com>, <gaol.com>, <jaol.com>,
<oaol.com>, <xaol.com>, <yaol.com>,
<zaol.com>, <ciq.com>, <iseeku.com>,
<iseekyou.com>, <ixq.com>, <jcq.com>,
<ncq.com>, <ocq.com>, <qcq.com>,
<ucq.com>, <vcq.com>, <xcq.com>, and
<ycq.com> domain names.
3. Respondent registered and used the <peopleconnection.com>,
<ajol.com>, <aoel.com>, <aoil.com>,
<aolc.com>, <aolh.com>, <aolk.com>,
<aoln.com>, <aolo.com>, <aool.com>,
<aqol.com>, <auol.com>, <axol.com>,
<ayol.com>, <caol.com>, <eaol.com>,
<faol.com>, <gaol.com>, <jaol.com>,
<oaol.com>, <xaol.com>, <yaol.com>,
<zaol.com>, <ciq.com>, <iseeku.com>,
<iseekyou.com>, <ixq.com>, <jcq.com>,
<ncq.com>, <ocq.com>, <qcq.com>,
<ucq.com>, <vcq.com>, <xcq.com>, and
<ycq.com> domain names in bad faith.
B. Respondent failed to submit a Response in
this proceeding.
Complainant,
America Online, Inc., and Complainant’s wholly owned subsidiary ICQ, have
registered numerous trademarks with the U.S. Patent and Trademark Office
(“USPTO”), including the PEOPLE CONNECTION, AOL, AOL.COM, and ICQ marks.
On January 19,
1988, Complainant registered the PEOPLE CONNECTION mark with the USPTO in
connection with “providing access time to a computer database in the field of
social events and information relating thereto” (Reg. No. 1,473,650).
On June 4, 1996,
Complainant registered the AOL mark with the USPTO in connection with a variety
of goods and services, including a variety of telecommunication and computer
services (Reg. No. 1,977,731).
On October 29,
1997, Complainant filed a federal trademark registration for the ICQ mark with
the USPTO in connection with a variety of goods and services, including
computer operating programs, computer software, online directories,
telecommunication services, and providing financial information, inter alia. The USPTO granted registration for that mark
on December 12, 2000 (Reg. No. 2,411,657).
On March 17,
1998, Respondent registered the domain names <iseekyou.com>, <iseeku.com>,
and <xaol.com>. On March 23, 1998, Respondent registered the
domain name <ayol.com>. On
March 28, 1998, Respondent registered the domain name <aool.com>. On March 29, 1998, Respondent registered the
domain names <yaol.com>, <zaol.com>,
<oaol.com>, <jaol.com>, <gaol.com>, <faol.com>,
<caol.com>, <axol.com>, <auol.com>, <aqol.com>,
<aolo.com>, <aoln.com>, <aoel.com>,
<aoil.com>, <aolc.com>, <aolh.com>, and
<aolk.com>. On April 7, 1998,
Respondent registered the domain names <ixq.com>,
<jcq.com>, <ncq.com>, <ocq.com>,
<qcq.com>, <vcq.com>, <xcq.com>, and
<ycq.com>. On May 1, 1998,
Respondent registered the domain names <eaol.com> and
<ajol.com>. On June 13, 1998,
Respondent registered the domain name <peopleconnection.com>. On September 16, 1998, Respondent registered
the domain name <ucq.com>.
On September 23, 1998, Respondent registered the domain name <ciq.com>.
Each of the
aforementioned domain names resolves to a website located at
<megago.com>. The resolved
website contains a variety of links entitled “Gambling,” “Massage,” “Sex,”
“Viagra,” “Adult,” “Adult Life,” “Free XXX,” “Casino,” “BlackJack,” and
“Craps.” Moreover, the resolved website
contains a variety of pop-up advertisements relating to the above categories.
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."
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.
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.
At the outset it
is noted that Respondent has failed to respond to the Complaint; therefore,
“all reasonable inferences of fact in the allegations of the Complainant will
be deemed true.” Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc.,
FA 95095 (Nat. Arb. Forum July 31, 2000); see also Strum v. Nordic Net
Exchange AB, FA 102843 (Nat. Arb. Forum Feb. 21, 2002) (finding that in
accordance with Paragraph 14(b) of the Policy, the Panel may draw such inferences
as it considers appropriate, if Respondent fails to comply with the Panel's
requests for information).
Complainant has
established a presumption of valid trademark rights in the PEOPLE CONNECTION,
AOL, and ICQ marks as a result of registering the marks with the U.S. Patent
and Trademark Office (“USPTO”). See Janus Int’l Holding Co. v. Rademacher,
D2002-0201 (WIPO Mar. 5, 2002) (finding that the registration of a mark is prima facie evidence of validity, which
creates a rebuttable presumption that the mark is inherently distinctive. Respondent has the burden of refuting this
assumption); see also Men’s Wearhouse, Inc. v. Wick, FA 117861 (Nat.
Arb. Forum Sept. 16, 2002) (“Under U.S. trademark law, registered marks hold a
presumption that they are inherently distinctive and have acquired secondary
meaning.”).
Although the
USPTO granted registration for Complainant’s ICQ mark after the disputed domain
name registrations, Complainant filed the registration application on October
29, 1997, prior to every disputed domain name registration. Prior panels have held that a complainant’s
trademark rights, based on federal registration, date back to the original
filing date (provided the mark is granted registration); therefore,
Complainant’s rights in the ICQ mark date back to 1997 and priority is not an
issue. See FDNY Fire Safety Educ.
Fund, Inc. v. Miller, FA 145235 (Nat. Arb. Forum Mar. 26, 2003) (finding
that Complainant’s rights in the FDNY mark relate back to the date that its
successful trademark registration was filed with the U.S. Patent and Trademark
Office); see also J. C. Hall Co. v. Hallmark Cards, Inc., 340 F.2d 960,
144 U.S.P.Q. 435 (C.C.P.A. 1965) (registration on the Principal Register is
prima facie proof of continual use of the mark, dating back to the filing date
of the application for registration).
The Panel finds
that the <peopleconnection.com> domain name is identical to
Complainant’s PEOPLE CONNECTION mark pursuant to Policy ¶ 4(a)(i). As evidence, the domain name incorporates
Complainant’s entire mark without modification. The fact that the domain name adds the generic top-level domain
“.com” is without significance under Policy ¶ 4(a)(i). See Rollerblade,
Inc. v. McCrady, D2000-0429 (WIPO June 25, 2000) (finding that the top
level of the domain name such as “.net” or “.com” does not affect the domain
name for the purpose of determining whether it is identical or confusingly
similar); see also Busy Body, Inc.
v. Fitness Outlet Inc., D2000-0127 (WIPO Apr. 22, 2000) (finding that the
addition of a top-level domain is without legal significance).
Prior panels
have held that a domain name, which contains a third-party mark in its
entirety, that simply adds a single letter to the mark is confusingly similar
to the mark under Policy ¶ 4(a)(i). See
Am. Online, Inc. v. Informatics, Inc., FA 104570 (Nat. Arb. Forum Mar. 25,
2002) (finding the <iaol.com> domain name confusingly similar to the AOL
mark); see also Canadian Tire
Corp. v. 849075 Alberta Ltd., D2000-0985 (WIPO Oct. 19, 2000) (finding that
the domain-names <ecanadiantire.com> and <e-canadiantire.com> are
confusingly similar to Canadian Tire’s trademarks).
Consistent with
these prior decisions, in combination with the facts that Respondent has failed
to respond to the Complaint and the AOL mark is highly distinctive,[1]
the Panel finds the following domain names confusingly similar to Complainant’s
AOL mark pursuant to Policy ¶ 4(a)(i): <ajol.com>,
<aoel.com>, <aoil.com>, <aolc.com>,
<aolh.com>, <aolk.com>, <aoln.com>,
<aolo.com>, <aool.com>, <aqol.com>,
<auol.com>, <axol.com>, <ayol.com>,
<caol.com>, <eaol.com>, <faol.com>,
<gaol.com>, <jaol.com>, <oaol.com>,
<xaol.com>, <yaol.com>, and <zaol.com>. 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).
Prior decisions under the Policy have held that a domain
name, which is phonentically identical to a third-party mark, is confusingly
similar to the mark under Policy ¶ 4(a)(i).
See Hewlett-Packard Co. v.
Cupcake City, FA 93562 (Nat. Arb. Forum Apr. 7, 2000) (finding that a
domain name which is phonetically identical to Complainant’s mark satisfies ¶
4(a)(i) of the Policy); see also YAHOO!
Inc. v. Murray, D2000-1013 (WIPO Nov. 17, 2000) (finding that the domain
name <yawho.com> is confusingly similar to Complainant’s YAHOO mark).
In the instant
case, the domain names <iseeku.com> and <iseekyou.com> are
both phonetically identical to Complainant’s ICQ mark. In the absence of a response, and consistent
with prior decisions under the Policy, the Panel finds that the domain names <iseeku.com>
and <iseekyou.com> are confusingly similar to Complainant’s
ICQ mark under Policy ¶ 4(a)(i).
However, the
Panel finds that the following domain names are not confusingly similar to
Complainant’s ICQ mark, despite Respondent’s failure to respond: <ciq.com>,
<ixq.com>, <jcq.com>, <ncq.com>,
<ocq.com>, <qcq.com>, <ucq.com>,
<vcq.com>, <xcq.com>, and <ycq.com>. In “the Internet context, consumers are
aware that domain names for different Web sites are quite often similar,
because of the need for language economy, and that very small differences
matter.” Entrepreneur Media, Inc. v.
Smith,
279 F.3d 1135, 1147 (9th Cir. 2002). “Especially in cases involving only a few
letters, where those letters do not create a recognized word…the Panel may
choose to consider whether the scarcity of domain names should be included in
its analysis.” IMDb, Inc. v. Seventh
Summit Ventures, FA 436735 (Nat. Arb. Forum Apr. 25, 2005).
A
primary difference between domain names and trademarks is that only one entity
is able to use a single domain name; whereas many different entities are
capable of using the same trademark, albeit for different goods or
services. Given the scarcity of useful
and recognizable domain names, the Panel may choose to consider whether a
possible confusing similarity between a domain name and mark may be trumped by
the competing need to allow for diversified registrants and uses of such domain
names. Id.
See also Susan Thomas Johnson, Internet
Domain Name and Trademark Disputes: Shifting Paradigms in Intellectual
Property, 43 Ariz. L. Rev.
465, 470 (2001) (“The uniqueness requirement of domain names creates an
exclusivity that has important economic ramifications, since only one entity
can use a specific domain name. This
contrasts with trademarks, where more than one entity can have the same
trademark, depending on circumstances, such as geographic location.”).
Based on the foregoing rationale, the Panel finds that the
following domain names are not confusingly similar to Complainant’s ICQ mark
pursuant to Policy ¶ 4(a)(i): <ciq.com>, <ixq.com>,
<jcq.com>, <ncq.com>, <ocq.com>,
<qcq.com>, <ucq.com>, <vcq.com>,
<xcq.com>, and <ycq.com>.
Complainant has established Policy ¶ 4(a)(i) with respect to
the following domain names: <peopleconnection.com>,
<ajol.com>, <aoel.com>, <aoil.com>,
<aolc.com>, <aolh.com>, <aolk.com>,
<aoln.com>, <aolo.com>, <aool.com>,
<aqol.com>, <auol.com>, <axol.com>,
<ayol.com>, <caol.com>, <eaol.com>,
<faol.com>, <gaol.com>, <jaol.com>,
<oaol.com>, <xaol.com>, <yaol.com>,
<zaol.com>, <iseeku.com>, and <iseekyou.com>.
Complainant has failed to establish Policy ¶ 4(a)(i) with
respect to the following domain names: <ciq.com>, <ixq.com>,
<jcq.com>, <ncq.com>, <ocq.com>,
<qcq.com>, <ucq.com>, <vcq.com>,
<xcq.com>, and <ycq.com>.
The failure of
Respondent to respond to the Complaint functions as an implicit admission that
Respondent lacks rights and legitimate interests in the disputed domain names
pursuant to Policy ¶ 4(a)(ii). See Pavillion Agency, Inc. v. Greenhouse Agency
Ltd., D2000-1221 (WIPO Dec. 4, 2000) (finding that Respondents’ failure to
respond can be construed as an admission that they have no legitimate interest
in the domain names); see also Bloomberg L.P. v. GAF, FA
190614 (Nat. Arb. Forum Oct. 20, 2003) (finding that since Respondent did not
come forward to explain what legitimate use it may have had in the domain
names, the panel could “presume that
Respondent lacks rights and legitimate interests in the domain names at
issue”).
In addition, in
the absence of a Response, the Panel may accept all reasonable allegations set
forth in the Complaint as true. See Honeywell
Int’l Inc. v. Domain Deluxe,
FA 269166 (Nat. Arb. Forum June 29, 2004) (“The failure of Respondent to
respond to the Complaint functions both as an implicit admission that
Respondent lacks rights to and legitimate interests in the domain names, as
well as a presumption that Complainant’s reasonable allegations are true.”); see
also Do the Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000)
(“Failure of a respondent to come forward to [contest complainant’s
allegations] is tantamount to admitting the truth of complainant’s assertion in
this regard.”).
Respondent is
using the disputed domain names to divert Internet users to a website that
offers links to a variety of adult-oriented websites and online gambling
websites. Moreover, Respondent uses a
variety of pop-up advertisements at the resolved websites. None of these actions evidence a bona
fide offering of goods or services, or a legitimate noncommercial or fair
use pursuant to Policy ¶¶ 4(c)(i) and (iii).
See Vivendi
Universal Games v. Chang, FA 206328 (Nat. Arb. Forum Dec. 17, 2003)
(finding it was not a bona
fide offering of goods or
services nor a legitimate noncommercial or fair use when respondent used the
domain name to divert Internet users seeking Complainant's goods or services to
pornographic material and links, presumably earning commission or referral fees
from advertisers); see also Am.
Online, Inc. v. Bates, FA 192595 (Nat. Arb. Forum Oct. 7, 2003) (“Attempts to commercially benefit from a domain name that is
confusingly similar to another's mark by linking the domain name to an
adult-oriented website as evidence that the registrant lacks rights or
legitimate interests in the domain name.”); see also Pioneer Hi-Bred Int’l Inc. v. Chan, FA 154119 (Nat. Arb. Forum May 12,
2003) (finding that Respondent did not have rights or legitimate interests in a
domain name that used Complainant’s mark and redirected Internet users to
website that pays domain name registrants for referring those users to its
search engine and pop-up advertisements).
Moreover, there
is nothing in the record that indicates, let alone suggests, that Respondent is
commonly known by any of the disputed domain names pursuant to Policy ¶
4(c)(ii). See Compagnie de Saint Gobain v. Com-Union Corp.,
D2000-0020 (WIPO Mar. 14, 2000) (finding no rights or legitimate interest where
Respondent was not commonly known by the mark and never applied for a license
or permission from Complainant to use the trademarked name); see also Tercent Inc.
v. 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).
Complainant has
established Policy ¶ 4(a)(ii).
Respondent has
registered 25 domain names that are identical or confusingly similar to not
only one of Complainant’s trademarks, but three. This is strong evidence that Respondent had
actual knowledge of Complainant and its trademarks prior to registering the
domain names. Respondent’s actions are
evidence of bad faith registration and use of the following domain names
pursuant to Policy ¶ 4(a)(iii): <peopleconnection.com>,
<ajol.com>, <aoel.com>, <aoil.com>,
<aolc.com>, <aolh.com>, <aolk.com>,
<aoln.com>, <aolo.com>, <aool.com>,
<aqol.com>, <auol.com>, <axol.com>,
<ayol.com>, <caol.com>, <eaol.com>,
<faol.com>, <gaol.com>, <jaol.com>, <oaol.com>,
<xaol.com>, <yaol.com>, <zaol.com>,
<iseeku.com>, and <iseekyou.com>. See also Digi Int’l v. DDI Sys.,
FA 124506 (Nat. Arb. Forum Oct. 24, 2002) (“[T]here is a legal presumption of
bad faith, when Respondent reasonably should have been aware of Complainant’s
trademarks, actually or constructively.”); see also Entrepreneur Media, Inc.
v. Smith, 279
F.3d 1135, 1148 (9th Cir. 2002) ("Where an alleged infringer chooses a
mark he knows to be similar to another, one can infer an intent to
confuse.").
Furthermore,
the Panel finds that Respondent has intentionally attempted to attract Internet
users to its website for commercial gain by creating a likelihood of confusion
with Complainant’s marks pursuant to Policy ¶ 4(b)(iv). As stated prior, Respondent has registered 25 domain names
that are confusingly similar to Complainant’s trademarks. Respondent has used those domain names to
point to its own website, which utilizes pop-up advertisements and links to
adult-oriented and gambling websites, presumably for commercial gain. In the absence of a response, and especially
given the fame of Complainant’s AOL mark, the Panel finds Respondent is in
violation of Policy ¶ 4(b)(iv). See
Kmart v. Khan, FA 127708 (Nat. Arb. Forum Nov. 22, 2002) (finding that if
Respondent profits from its diversionary use of Complainant's mark when the
domain name resolves to commercial websites and Respondent fails to contest the
Complaint, it may be concluded that Respondent is using the domain name in bad
faith pursuant to Policy ¶ 4(b)(iv)); see also ESPN, Inc. v. Ballerini, FA 95410 (Nat. Arb. Forum Sept. 15, 2000)
(finding bad faith where Respondent linked the domain name to another website
<iwin.com>, presumably receiving a portion of the advertising revenue
from the site by directing Internet traffic there, thus using a domain name to
attract Internet users for commercial gain); see also Encyclopaedia Britannica Inc. v. Shedon.com,
D2000-0753 (WIPO Sept. 6, 2000) (finding that Respondent violated Policy ¶
4(b)(iv) by using the domain name <britannnica.com> to hyperlink to a
gambling site); see also Wells Fargo & Co. v. Party Night Inc. and Peter
Carrington, FA 144647 (Nat. Arb. Forum March 18, 2003) (finding that Respondent’s tarnishing use of the disputed domain names to redirect Internet users to
adult-oriented websites was evidence that the domain names were being used in
bad faith).
Moreover,
based on the foregoing, the Panel also concludes that Respondent is engaged in
the practice of typosquatting.
“Typosquatting is the intentional misspelling of words with intent to
intercept and siphon off traffic from its intended destination, by preying on
Internauts who make common typing errors.
Typosquatting is inherently parasitic and of itself evidence of bad
faith.” Nat’l Ass’n of Prof’l Baseball Leagues v. Zuccarini,
D2002-1011 (WIPO Jan. 21, 2003); see also Zone Labs, Inc.
v. Zuccarini, FA 190613 (Nat. Arb.
Forum Oct. 15, 2003) ("Typosquatting, itself is evidence of bad faith
registration and use pursuant to Policy ¶ 4(a)(iii)."); see also Dermalogica,
Inc. v. Domains to Develop, FA 175201 (Nat. Arb. Forum Sept. 22, 2003) (finding that the
<dermatalogica.com> domain name was a typosquatted version of
Complainant's DERMALOGICA mark and
stating, "[t]yposquatting itself is evidence of bad faith
registration and use pursuant to Policy 4(a)(iii).").
Having failed to
establish that the following domain names are confusingly similar to
Complainant’s ICQ mark, pursuant to ICANN Policy ¶ 4(a)(i), the Panel concludes
that relief shall be DENIED: <ciq.com>, <ixq.com>,
<jcq.com>, <ncq.com>, <ocq.com>,
<qcq.com>, <ucq.com>, <vcq.com>,
<xcq.com>, and <ycq.com>.
Having established all three elements required under the
ICANN Policy for the remaining domain names, the Panel concludes that relief
shall be GRANTED: Accordingly,
it is Ordered that the <peopleconnection.com>, <ajol.com>,
<aoel.com>, <aoil.com>, <aolc.com>,
<aolh.com>, <aolk.com>, <aoln.com>,
<aolo.com>, <aool.com>, <aqol.com>,
<auol.com>, <axol.com>, <ayol.com>,
<caol.com>, <eaol.com>, <faol.com>,
<gaol.com>, <jaol.com>, <oaol.com>,
<xaol.com>, <yaol.com>, <zaol.com>,
<iseeku.com>, and <iseekyou.com> domain names be TRANSFERRED
from Respondent to Complainant.
Tyrus R. Atkinson, Jr., Panelist
Dated:
May 26, 2005
Click Here to return
to the main Domain Decisions Page.
Click Here to return to our Home
Page
National Arbitration Forum
[1] E.g., Am.
Online, Inc. v. Amigos On Line RJ, FA 115041 (Nat. Arb. Forum Aug. 28,
2002) (referring to Complainant’s AOL mark as “famous”); Am. Online, Inc. v.
Alliance for Online Living, FA 414567 (Nat. Arb. Forum Mar. 22, 2005)
(referring to Complainant’s AOL mark as “well-known”); Am. Online, Inc. v.
Niche Profit LTD., FA 209902 (Nat. Arb. Forum Dec. 22, 2003) (referring to
Complainant’s AOL mark as having “worldwide prominence”).