DatingDirect.com Limited v. Web Domain Names c/o Domain Administrator
Claim Number: FA0511000594723
Complainant is DatingDirect.com Limited (“Complainant”), represented by Adam Taylor, of Adlex Solicitors, 76A Belsize Lane, London, NW3 5BJ, United Kingdom. Respondent is Web Domain Names c/o Domain Administrator (“Respondent”), 777 Mo Xue Fang Road, Shanghai, Peoples Republic of China 435002.
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <dateingdirect.com>, registered with Moniker Online Services, 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.
Louis E. Condon as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on November 11, 2005; the National Arbitration Forum received a hard copy of the Complaint on November 11, 2005.
On November 11, 2005, Moniker Online Services, Inc. confirmed by e-mail to the National Arbitration Forum that the <dateingdirect.com> domain name is registered with Moniker Online Services, Inc. and that Respondent is the current registrant of the name. Moniker Online Services, Inc. has verified that Respondent is bound by the Moniker Online Services, 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 November 16, 2005, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of December 6, 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@dateingdirect.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On December 12, 2005 pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Louis E. Condon 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 name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <dateingdirect.com> domain name is confusingly similar to Complainant’s DATINGDIRECT.COM mark.
2. Respondent does not have any rights or legitimate interests in the <dateingdirect.com> domain name.
3. Respondent registered and used the <dateingdirect.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Datingdirect.com Limited, offers an international online dating agency service for singles seeking serious friendships and relationships. Complainant has been offering its services under the DATINGDIRECT.COM mark since launching its website at the <datingdirect.com> domain name in 1999. Complainant’s DATINGDIRECT.COM mark is registered with the United Kingdom Patent Office (Reg. No. 2,232,175, issued May 11, 2000).
Respondent registered the <dateingdirect.com> domain name on August 16, 2002. Respondent is using the disputed domain name to redirect Internet users to a website prominently displaying links to dating websites, including references to Complainant and Complainant’s competitors.
Respondent has been involved in three other UDRP proceedings where Respondent was ultimately found by each Panel to have registered and used the disputed domain names in bad faith and was ordered to transfer the domain names to the respective complainants. See Argosy Gaming Co. v. Web Domain Names, FA 306742 (Nat. Arb. Forum Sept. 20, 2004); see also Promissor v. Web Domain Names, FA 346305 (Nat. Arb. Forum Dec. 6, 2004); see also Robert Half Int’l, Inc. v. Web Domain Names, FA 422313 (Nat. Arb. Forum Mar. 31, 2004).
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. 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.”).
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.
Complainant has established that it has rights in the DATINGDIRECT.COM mark through registration with the United Kingdom Patent Office. See Janus Int’l Holding Co. v. Rademacher, D2002-0201 (WIPO Mar. 5, 2002) ("Panel decisions have held that registration of a mark is prima facie evidence of validity, which creates a rebuttable presumption that the mark is inherently distinctive."); see also Koninklijke KPN N.V. v. Telepathy Inc., D2001-0217 (WIPO May 7, 2001) (finding that the Policy does not require that the mark be registered in the country in which the respondent operates; therefore it is sufficient that the complainant can demonstrate a mark in some jurisdiction); see also KCTS Television Inc. v. Get-on-the-Web Ltd., D2001-0154 (WIPO Apr. 20, 2001) (holding that it does not matter for the purpose of paragraph 4(a)(i) of the Policy whether the complainant’s mark is registered in a country other than that of the respondent’s place of business).
The <dateingdirect.com> domain name registered by Respondent is confusingly similar to Complainant’s DATINGDIRECT.COM mark because it is a typographically misspelled version of Complainant’s mark, incorporating the letter “e” into the word “dating.” The Panel finds that the addition of the letter “e” does not distinguish Respondent’s domain name from Complainant’s mark. See Am. Online, Inc. v. Tencent Commc’ns Corp., FA 93668 (Nat. Arb. Forum Mar. 21, 2000) (finding that <oicq.net> and <oicq.com> are confusingly similar to the complainant’s mark, ICQ); see also Crédit Lyonnais v. Ass’n Etre Ensemble, D2000-1426 (WIPO Dec. 7, 2000) (finding that the addition of the letter “e” and a hyphen does not affect the power of the mark in determining confusing similarity).
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant asserts that Respondent does not have rights or
legitimate interests in the <dateingdirect.com> domain name. When a complainant establishes a prima
facie case pursuant to Policy ¶ 4(a)(ii), the burden shifts to the
respondent to prove that it has rights or legitimate interests. Due to Respondent’s failure to respond to
the Complaint, the Panel infers that Respondent does not have rights or legitimate
interests in the disputed domain name. See
Parfums Christian Dior v. QTR Corp.,
D2000-0023 (WIPO Mar. 9, 2000) (finding that by not submitting a response, the
respondent has failed to invoke any circumstance which could demonstrate any
rights or legitimate interests in the domain name); see also Bank of Am. Corp. v. McCall, FA 135012 (Nat. Arb. Forum Dec. 31, 2002) (“Respondent's
failure to respond not only results in its failure to meet its burden, but also
will be viewed as evidence itself that Respondent lacks rights and legitimate
interests in the disputed domain name.”).
Respondent has not offered any
evidence and there is no proof in the record or WHOIS information indicating
that Respondent is commonly known by the <dateingdirect.com>
domain name. Therefore, the Panel finds
that Respondent has not established rights or legitimate interests in the
disputed domain name pursuant to Policy ¶ 4(c)(ii). See Tercent Inc. v. Lee 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); see also G.D. Searle & Co. v. Cimock, FA 126829 (Nat. Arb. Forum Nov. 13, 2003) (“Due to the fame of
Complainant’s mark there must be strong evidence that Respondent is commonly
known by the disputed domain name in order to find that Respondent has rights
or legitimate interests in the disputed domain name pursuant to Policy ¶
4(c)(ii). However, there is no evidence
on record, and Respondent has not come forward with any proof to establish that
it is commonly known as CELEBREXRX or <celebrexrx.com>.”).
Moreover, Respondent is using the <dateingdirect.com> domain name to redirect Internet users to a website prominently displaying links to dating websites, including references to Complainant and Complainant’s competitors. The Panel presumes that Respondent receives click-through fees for hosting links to competing websites at the disputed domain name and finds that Respondent’s use of a domain name that is confusingly similar to Complainant’s mark is not a use in connection with a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use of the domain name pursuant to Policy ¶ 4(c)(iii). See Am. Online, Inc. v. Advanced Membership Servs., Inc., FA 180703 (Nat. Arb. Forum Sept. 26, 2003) (“Respondent's registration and use of the <gayaol.com> domain name with the intent to divert Internet users to Respondent's website suggests that Respondent has no rights to or legitimate interests in the disputed domain name pursuant to Policy Paragraph 4(a)(ii).”); see also 24 Hour Fitness USA, Inc. v. 24HourNames.com-Quality Domains For Sale, FA 187429 (Nat. Arb. Forum Sep. 26, 2003) (holding that Respondent’s use of the <24hrsfitness.com>, <24-hourfitness.com> and <24hoursfitness.com> domain names to redirect Internet users to a website featuring advertisements and links to Complainant’s competitors could not be considered a bona fide offering of goods or services or a legitimate noncommercial or fair use).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Respondent's involvement in several previous UDRP proceedings is evidence that Respondent has engaged in a pattern of registering domain names featuring the marks of others. Thus, the Panel finds that Respondent registered and used the disputed domain name in bad faith pursuant to Policy ¶ 4(b)(ii). See Australian Stock Exch. v. Cmty. Internet (Australia) Pty Ltd, D2000-1384 (WIPO Nov. 30, 2000) (finding bad faith under Policy ¶ 4(b)(ii) where the respondent registered multiple infringing domain names containing the trademarks or service marks of other widely known Australian businesses); see also Armstrong Holdings, Inc. v. JAZ Assocs., FA 95234 (Nat. Arb. Forum Aug. 17, 2000) (finding that the respondent violated Policy ¶ 4(b)(ii) by registering multiple domain names that infringe upon others’ famous and registered trademarks); see also Gamesville.com, Inc. v. Zuccarini, FA 95294 (Nat. Arb. Forum Aug. 30, 2000) (finding that the respondent engaged in a pattern of conduct of registering domain names to prevent the owner of the trademark from reflecting the mark in a corresponding domain name, which is evidence of registration and use in bad faith).
Additionally, the Panel finds that Respondent intentionally registered a domain name incorporating Complainant’s entire mark to divert Internet users to a website offering links to third party commercial websites. The Panel concludes that such activity is evidence of Respondent’s bad faith registration and use pursuant to Policy ¶ 4(b)(iv). See G.D. Searle & Co. v. Celebrex Drugstore, FA 123933 (Nat. Arb. Forum Nov. 21, 2002) (finding that the respondent registered and used the domain name in bad faith pursuant to Policy ¶ 4(b)(iv) because the respondent was using the confusingly similar domain name to attract Internet users to a commercial website); see also Perot Sys. Corp. v. Perot.net, FA 95312 (Nat. Arb. Forum Aug. 29, 2000) (finding bad faith where the domain name in question is obviously connected with the complainant’s well-known marks, thus creating a likelihood of confusion strictly for commercial gain).
Furthermore, the Panel finds that Respondent’s practice of using a typographically misspelled version of Complainant’s DATINGDIRECT.COM mark to take advantage of errors made by Internet users amounts to typosquatting, which is evidence of bad faith registration and use pursuant to Policy ¶ 4(a)(iii). See Nat’l Ass’n of Prof’l Baseball League, Inc. v. Zuccarini, D2002-1011 (WIPO Jan. 21, 2003) (“Typo squatting … is the intentional misspelling of words with [the] intent to intercept and siphon off traffic from its intended destination, by preying on Internauts who make common typing errors. Typo squatting is inherently parasitic and of itself evidence of bad faith.”); 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 “simple misspelling” of the complainant's DERMALOGICA mark which indicated typo squatting and bad faith pursuant to Policy 4 ¶ (a)(iii)).
The Panel finds that Policy 4 ¶ (a)(iii) has been satisfied.
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief should be GRANTED.
Accordingly, it is Ordered that the <dateingdirect.com> domain name be TRANSFERRED from Respondent to Complainant.
Louis E. Condon, Panelist
Dated: December 19, 2005
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