InfoSpace, Inc. v. Bella Holdings c/o Domain Admin
Claim Number: FA0705000997295
Complainant is InfoSpace, Inc. (“Complainant”), represented by Jan
Riggs, of InfoSpace, Inc.,
REGISTRAR
AND DISPUTED DOMAIN NAME
The domain name at issue is <infspace.com>, registered with Fabulous.Com Pty Ltd.
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 May 31, 2007; the National Arbitration Forum received a hard copy of the Complaint on June 1, 2007.
On May 31, 2007, Fabulous.Com Pty Ltd. confirmed by e-mail to the National Arbitration Forum that the <infspace.com> domain name is registered with Fabulous.Com Pty Ltd. and that Respondent is the current registrant of the name. Fabulous.Com Pty Ltd. has verified that Respondent is bound by the Fabulous.Com Pty Ltd. 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 June 8, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of June 28, 2007 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@infspace.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On July 5, 2007, 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 <infspace.com> domain name is confusingly similar to Complainant’s INFOSPACE mark.
2. Respondent does not have any rights or legitimate interests in the <infspace.com> domain name.
3. Respondent registered and used the <infspace.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, InfoSpace, Inc., holds several trademark registrations with the United States Patent and Trademark Office (“USPTO”) for the INFOSPACE mark (e.g., Reg. No. 2,121,439 issued December 16, 1997 and Reg. No. 2,580,133 issued June 11, 2002). Complainant has used the INFOSPACE mark in connection with the sale of its wireless and Internet software and application services and goods, the distribution of information on various subjects via websites and search engines, and the brokerage of electronic commerce transactions. Complainant also holds registrations in over 15 countries worldwide. Complainant has registered the <infospace.com> and <infospace.net> domain names, which it uses in connection with the sale and distribution of its Internet goods and services.
Respondent registered the <infspace.com> domain name on April 7, 2003. Respondent is using the disputed domain name to redirect Internet users to Respondent’s website displaying adult-oriented material. Complainant sent Respondent a cease and desist order to which Respondent stated, “If your client is interested in purchasing the domain, I am sure we can work something out.” Complainant offered “to reimburse you for the registration fee for no more than a two year period.” Respondent said this offer was “unacceptable” and went on to say that Respondent could simply sell the disputed domain name on the open market. Respondent also stated that “I have dealt with at least 30 of these kinds of situations.” Respondent agreed to take the domain down while the dispute was going on and to make a counteroffer. However, Respondent failed to do either.
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
under Policy ¶ 4(a)(i) through registration of that
mark with the USPTO. See SDC Media, Inc. v. SCMedia, FA
960250 (Nat. Arb. Forum June 7, 2007) (holding that “[t]his trademark
registration [with the USPTO] establishes Complainant’s rights in the mark
pursuant to Policy ¶ 4(a)(i).”); see also Victoria's Secret Stores
Brand Mgmt., Inc. v. Machuszek,
FA 945052 (Nat. Arb. Forum May 7, 2007) (finding “that Complainant has established
rights in the
Respondent’s <infspace.com>
domain name is confusingly similar to Complainant’s INFOSPACE mark as it uses
the mark in its entirety and simply omits the “o” from the mark and adds a
generic top-level domain (“gTLD”) to the mark.
First, the mere omission of the letter “o” from the INFOSPACE mark does
not sufficiently alter the mark to negate the confusingly similar aspects of
the domain name under Policy ¶ 4(a)(i). See Hallelujah Acres, Inc. v.
Additionally, the Panel finds, as other panels have found,
that the addition of a gTLD is irrelevant to the determination of whether a
domain name is confusingly similar to a mark.
See Busy Body, Inc. v. Fitness
Outlet Inc., D2000-0127 (WIPO Apr. 22, 2000) ("[T]he addition of the
generic top-level domain (gTLD) name ‘.com’ is…without legal significance since
use of a gTLD is required of domain name registrants…."); see also Isleworth Land Co. v. Lost in Space,
SA, FA 117330 (Nat. Arb. Forum Sept. 27, 2002) (“[I]t is a well established
principle that generic top-level domains are irrelevant when conducting a
Policy ¶ 4(a)(i) analysis.”).
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant asserts that Respondent does not have rights or legitimate interests in the <infspace.com> domain name. Complainant’s assertion establishes a prima facie case, which shifts the burden to Respondent to prove that it does have rights or legitimate interests in the <infspace.com> domain name pursuant to Policy ¶ 4(a)(ii). See Towmaster, Inc. v. Hale, FA 973506 (Nat. Arb. Forum June 4, 2007) (“Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), and then the burden shifts to Respondent to show it does have rights or legitimate interests.”); see also 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).”).
The Panel may assume here that Respondent has no rights or legitimate interests in the <infspace.com> domain name because Respondent failed to respond to the Complaint. See 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.”); see also Pavillion Agency, Inc. v. Greenhouse Agency Ltd., D2000-1221 (WIPO Dec. 4, 2000) (finding that the respondents’ failure to respond can be construed as an admission that they have no legitimate interest in the domain names). However, the Panel will review all available evidence before determining whether Respondent has rights or legitimate interests in the disputed domain name under Policy ¶ 4(c).
Complainant asserts that Respondent is using the <infspace.com> domain name to redirect Internet users to Respondent’s website displaying adult-oriented material. The Panel finds that Respondent’s use of the website to display adult-oriented material is not a use in connection with a bona fide offering of goods or services under Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See Sony Kabushiki Kaisha v. Domain rajadomain@yahoo.com +1.415.0, FA 128701 (Nat. Arb. Forum Dec. 16, 2002) (finding that the respondent’s use of its domain name in order to divert Internet users to a website that offers search engine services and links to adult-orientated websites was not considered to be in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use pursuant to Policy ¶¶ 4(c)(i) or 4(c)(iii)); see also Target Brands, Inc. v. Bealo Group S.A., FA 128684 (Nat. Arb. Forum Dec. 17, 2002) (finding that use of the <targetstore.net> domain name to redirect Internet users to an adult-oriented website did not equate to a bona fide offering of goods or services under Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use of a domain name under Policy ¶ 4(c)(iii)).
Additionally, Respondent offers no evidence and no evidence is present in the record to indicate that Respondent is commonly known by the <infspace.com> domain name. Respondent’s WHOIS information identifies Respondent as “Bella Holdings.” Therefore, the Panel finds that Respondent has failed to show evidence that Respondent is commonly known by the <infspace.com> domain name necessary to establish rights or legitimate interests under 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 Am. W. Airlines, Inc. v. Paik, FA 206396 (Nat. Arb. Forum Dec. 22, 2003) (“Respondent has registered the domain name under the name ‘Ilyoup Paik a/k/a David Sanders.’ Given the WHOIS domain name registration information, Respondent is not commonly known by the [<awvacations.com>] domain name.”).
Further, Complainant contends that Respondent
offered to sell the <infspace.com> domain name to
Complainant via e-mail. Complainant
offered to pay the registration fees for two years and Respondent stated this
offer was “unacceptable.” The Panel
finds that Respondent’s offer to sell the <infspace.com> domain name for more
than its registration costs is evidence that Respondent lacks rights or
legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii). See Am.
Nat’l Red Cross v. Domains, FA 143684 (Nat. Arb. Forum Mar. 4, 2003)
(“Respondent’s lack of rights and legitimate interests in the domain name is
further evidenced by Respondent’s attempt to sell its domain name registration
to Complainant, the rightful holder of the RED CROSS mark.”); see also Wal-Mart Stores, Inc. v. Stork,
D2000-0628 (WIPO Aug. 11, 2000) (finding the respondent’s conduct purporting to
sell the domain name suggests it has no legitimate use).
Finally, Complainant contends that Respondent registered the <infspace.com> domain name to capitalize on a common typing error made by Internet users searching for Complainant’s <infospace.com> domain name. The Panel finds that Respondent’s <infspace.com> domain name is merely a typosquatted version of Complainant’s INFOSPACE mark, which is evidence that Respondent does not have rights or legitimate interests in the mark. See IndyMac Bank F.S.B. v. Ebeyer, FA 175292 (Nat. Arb. Forum Sept. 19, 2003) (finding that the respondent lacked rights and legitimate interests in the disputed domain names because it “engaged in the practice of typosquatting by taking advantage of Internet users who attempt to access Complainant's <indymac.com> website but mistakenly misspell Complainant's mark by typing the letter ‘x’ instead of the letter ‘c’”); see also LTD Commodities LLC v. Party Night, Inc., FA 165155 (Nat. Arb. Forum Aug. 14, 2003) (finding that the <ltdcommadities.com>, <ltdcommmodities.com>, and <ltdcommodaties.com> domain names were intentional misspellings of Complainant's LTD COMMODITIES mark and this “‘typosquatting’ is evidence that Respondent lacks rights or legitimate interests in the disputed domain names”).
The Panel finds that Policy ¶ 4(a)(ii)
has been satisfied.
Respondent has registered and is using the <infspace.com> domain name, which is confusingly similar to Complainant’s INFOSPACE mark, to redirect Internet users to Respondent’s website displaying adult-oriented material. The Panel finds that Internet users seeking Complainant’s <infospace.com> domain name may become confused as to Complainant’s affiliation with the disputed domain name. Presumably, Respondent is profiting from this confusion. Therefore, the Panel finds that Respondent’s use of the <infspace.com> domain name to redirect Internet users to an adult-oriented website for the commercial gain of Respondent is evidence of bad faith under Policy ¶ 4(b)(iv). See Qwest Comm’ns Int’l Inc. v. Ling Shun Shing, FA 187431 (Nat. Arb. Forum Oct. 6, 2003) (“Respondent has attempted to commercially benefit from the misleading <qwestwirless.com> domain name by linking the domain name to adult oriented websites, gambling websites, and websites in competition with Complainant. Respondent’s attempt to commercially benefit from the misleading domain name is evidence of bad faith pursuant to Policy ¶ 4(b)(iv).”); see also Youtv, Inc. v. Alemdar, FA 94243 (Nat. Arb. Forum Apr. 25, 2000) (finding bad faith where the respondent attracted users to his website for commercial gain and linked his website to pornographic websites).
Further, Respondent offered to sell the <infspace.com> domain
name via e-mail after Complainant sent a cease and desist order to
Respondent. Respondent states that “[i]f
your client is interested in purchasing the domain name, I am sure we can work
something out.” Respondent went on to
say that “I have dealt with at least 30 of these kinds of situations.” The Panel finds that Respondent’s offer to
sell the <infspace.com>
domain name to Complainant for more than its out-of-pocket costs incurred in
registering the disputed domain name is evidence of bad faith registration and
use under Policy ¶ 4(b)(i). See Bank of Am.
Corp. v. Nw. Free Cmty. Access,
FA 180704 (Nat. Arb. Forum
Sept. 30, 2003) (“Respondent's general offer of the disputed domain name
registration for sale establishes that the domain name was registered in bad
faith under Policy ¶ 4(b)(i).”); see also Little Six,
Inc. v. Domain For
Additionally, the Panel finds that Respondent’s use of the confusingly similar <infspace.com> domain name to display adult-oriented material is in and of itself evidence of bad faith registration and use pursuant to Policy ¶ 4(a)(iii). See Wells Fargo & Co. v. Party Night Inc., FA 144647 (Nat. Arb. Forum Mar. 18, 2003) (finding that the 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); see also Ty, Inc. v. O.Z. Names, D2000-0370 (WIPO June 27, 2000) (finding that absent contrary evidence, linking the domain names in question to graphic, adult-oriented websites is evidence of bad faith).
Finally, Complainant contends that Respondent registered the <infspace.com> domain name in order to take advantage of a common misspelling made by Internet users of Complainant’s INFOSPACE mark and <infospace.com> domain name. The Panel finds that Respondent’s use of the <infspace.com> domain name to take advantage of those Internet users who misspell Complainant’s mark constitutes bad faith registration and use according to Policy ¶ 4(a)(iii). See Zone Labs, Inc. v. Zuccarini, FA 190613 (Nat. Arb. Forum Oct. 15, 2003) (“Respondent’s registration and use of [the <zonelarm.com> domain name] that capitalizes on the typographical error of an Internet user is considered typosquatting. 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 “simple misspelling” of the complainant's DERMALOGICA mark which indicated typosquatting and bad faith pursuant to Policy ¶ 4 (a)(iii)).
The Panel finds that Policy ¶ 4(a)(iii)
has been satisfied.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <infspace.com> domain name be TRANSFERRED from Respondent to Complainant.
Judge Harold Kalina (Ret.), Panelist
Dated: July 17, 2007
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