InfoSpace, Inc. v. Private c/o Aldwin Bolante
Claim Number: FA0604000677916
Complainant is InfoSpace, Inc. (“Complainant”), represented by Shannon M. Jost, of Stokes Lawrence, P.S., 800 Fifth Avenue, Suite 4000, Seattle, WA 98104-3179. Respondent is Private c/o Aldwin Bolante (“Respondent”), 12623 Pineacre Lane, West Palm Beach, FL 33414.
REGISTRAR
AND DISPUTED DOMAIN NAME
The domain name at issue is <infospacr.com>, registered with Registerfly.com, 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.
Judge Harold Kalina (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on April 12, 2006; the National Arbitration Forum received a hard copy of the Complaint on April 17, 2006.
On April 18, 2006, Registerfly.com, Inc. confirmed by e-mail to the National Arbitration Forum that the <infospacr.com> domain name is registered with Registerfly.com, Inc. and that Respondent is the current registrant of the name. Registerfly.com, Inc. has verified that Respondent is bound by the Registerfly.com, 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 24, 2006, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of May 15, 2006 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@infospacr.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On May 18, 2006, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Judge Harold Kalina (Ret.) 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 <infospacr.com> domain name is confusingly similar to Complainant’s INFOSPACE mark.
2. Respondent does not have any rights or legitimate interests in the <infospacr.com> domain name.
3. Respondent registered and used the <infospacr.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, InfoSpace, Inc., has continuously used the INFOSPACE mark in connection with its wireless and Internet software application services since 1995. Complainant is a pre-eminent worldwide leader in the wireless and broadband industry. Complainant operates websites at the <infospace.com> (registered on May 28, 1996) and <infospace.net> (registered on May 7, 1997) domain names.
Complainant has registered the INFOSPACE mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 2,121,439 issued December 16, 1997; Reg. No. 2,206,397 issued December 1, 1998; Reg. No. 2,580,133 issued June 11, 2002). Complainant also owns trademark registrations in over twenty-five countries worldwide.
Respondent registered the <infospacr.com> domain name on February 1, 2006. Respondent’s domain name does not resolve to any content.
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 rights in the INFOSPACE mark by
registering the mark with the USPTO. See Innomed
Techs., Inc. v. DRP Servs., FA 221171
(Nat. Arb. Forum Feb. 18, 2004) (“Registration of the NASAL-AIRE mark with the
USPTO establishes Complainant's rights in the mark.”); see also Vivendi
Universal Games v. XBNetVentures Inc., FA 198803 (Nat. Arb. Forum Nov. 11,
2003) (“Complainant's federal trademark registrations establish Complainant's
rights in the BLIZZARD mark.”).
The <infospacr.com> domain name is confusingly similar to Complainant’s INFOSPACE mark pursuant to Policy ¶ 4(a)(i), because it contains the entire mark and merely replaces the letter “e” with “r.” In Google, Inc. v. Goog LR, FA 98462 (Nat. Arb. Forum Sept. 28, 2001), the panel found the respondent’s <googlr.com> domain name confusingly similar to Complainant’s GOOGLE mark because the only difference between the domain name and the mark was the last letter. Therefore, the mere misspelling of Complainant’s INFOSPACE mark renders the disputed domain name confusingly similar to the mark pursuant to Policy ¶ 4(a)(i). See Toronto-Dominion Bank v. Karpachev, D2000-1571 (WIPO Jan. 15, 2001) (finding that the domain names <tdwatergouse.com> and <dwaterhouse.com> are virtually identical to the complainant’s TD WATERHOUSE name and mark).
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant claims that Respondent lacks rights and
legitimate interests in the <infospacr.com> domain name. Complainant must first make a prima
facie case in support of its allegations, and then the burden shifts to
Respondent to show it does have rights or legitimate interests pursuant to
Policy ¶ 4(a)(ii). See G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum Oct. 1,
2002) (“Because Complainant’s Submission constitutes a prima facie case under the Policy, the burden effectively shifts to
Respondent. Respondent’s failure to respond means that Respondent has not
presented any circumstances that would promote its rights or legitimate
interests in the subject domain name under Policy ¶ 4(a)(ii).”); see also Do The Hustle, LLC v. Tropic Web,
D2000-0624 (WIPO Aug. 21, 2000) (holding that, where the complainant has
asserted that the respondent has no rights or legitimate interests with respect
to the domain name, it is incumbent on the respondent to come forward with
concrete evidence rebutting this assertion because this information is
“uniquely within the knowledge and control of the respondent”).
Respondent’s failure to answer the Complaint raises a
presumption that Respondent has no rights or legitimate interests in the <infospacr.com>
domain name. See Am. Online, Inc. v. AOL Int'l,
D2000-0654 (WIPO Aug. 21, 2000) (finding no rights or legitimate interests
where the respondent fails to respond); see
also BIC Deutschland GmbH & Co. KG v. Tweed, D2000-0418 (WIPO June 20,
2000) (“By not submitting a response, Respondent has failed to invoke any
circumstance which could demonstrate, pursuant to ¶ 4(c) of the Policy, any
rights or legitimate interests in the domain name”). However, the Panel will now examine the
record to determine if Respondent has rights or legitimate interests under
Policy ¶ 4(c).
Respondent has registered the domain name under the name “Private
c/o Aldwin Bolante,” and there is no other evidence in the record suggesting
that Respondent is commonly known by the <infospacr.com> domain
name. Thus, Respondent has not
established rights or legitimate interests in the <infospacr.com> domain name
pursuant to Policy ¶ 4(c)(ii). See Gallup, Inc. v. Amish Country Store,
FA 96209 (Nat. Arb. Forum Jan. 23, 2001) (finding that the respondent does not
have rights in a domain name when the respondent is not known by the mark); see also Wells
Fargo & Co. v. Onlyne Corp. Services11, Inc., FA 198969 (Nat. Arb. Forum Nov. 17, 2003) (“Given the
WHOIS contact information for the disputed domain [name], one can infer that
Respondent, Onlyne Corporate Services11, is not commonly known by the name
‘welsfargo’ in any derivation.”).
Furthermore, Respondent’s <infospacr.com> domain name,
which is confusingly similar to Complainant’s INFOSPACE mark, does not resolve
to any content. Because Respondent has
not used the disputed domain name for any purpose since registering it on
February 1, 2006, the Panel finds that Respondent is not using the disputed
domain name in connection with a bona
fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a
legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). See
Pharmacia & Upjohn AB v. Romero, D2000-1273 (WIPO Nov. 13, 2000)
(finding no rights or legitimate interests where the respondent failed to
submit a response to the complaint and had made no use of the domain name in
question); see also TMP Int’l, Inc. v. Baker Enters., FA 204112 (Nat. Arb. Forum Dec. 6, 2003) (“[T]he Panel
concludes that Respondent's passive holding of the domain name does not
establish rights or legitimate interests pursuant to Policy ¶ 4(a)(ii).”).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Respondent is not using the <infospacr.com> domain name, and has not provided any
demonstrable preparations to use the disputed domain name. Therefore, Respondent’s non-use of the
disputed domain name since February 1, 2006 constitutes bad faith registration
and use under Policy ¶ 4(a)(iii). See Clerical Med. Inv. Group Ltd. v.
Clericalmedical.com, D2000-1228 (WIPO Nov. 28, 2000) (finding that merely
holding an infringing domain name without active use can constitute use in bad
faith); see also Telstra Corp. v. Nuclear
Marshmallows, D2000-0003 (WIPO Feb. 18, 2000) (“[I]t is possible, in
certain circumstances, for inactivity by the Respondent to amount to the domain
name being used in bad faith.”).
Moreover, Respondent is engaged in typosquatting, because Internet users seeking Complainant’s INFOSPACE goods and services at the <infospace.com> domain name who mistakenly enter “r” instead of “e” resolve to Respondent’s website. The letters “e” and “r” are right next to each other on the keyboard and thus it is a common error for an Internet users to accidentally type in “r” instead of “e.” Therefore, Respondent has registered and used the <infospacr.com> domain name to take advantage of Internet user’s typographical errors, and such typosquatting constitutes bad faith registration and use pursuant to Policy ¶ 4(a)(iii). See 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 typosquatting and bad faith pursuant to Policy ¶ 4(a)(iii)); see also K.R. USA, INC. v. SO SO DOMAINS, FA 180624 (Nat. Arb. Forum Sept. 18, 2003) (finding that the respondent’s registration and use of the <philadelphiaenquirer.com> and <tallahassedemocrat.com> domain names capitalized on the typographical error of Internet users seeking the complainant's THE PHILADELPHIA INQUIRER and TALLAHASSEE DEMOCRAT marks, evincing typosquatting and bad faith pursuant to 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 <infospacr.com> domain name be TRANSFERRED from Respondent to Complainant.
Judge Harold Kalina (Ret.), Panelist
Dated: June 1, 2006
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