DatingDirect.com Limited v. Kerry Web Enterprise, Inc a/k/a KerryWeb Enterprise, Inc.
Claim Number: FA0708001052619
Complainant is DatingDirect.com Limited (“Complainant”), represented by Adam
Taylor of Adlex Solicitors, 76A
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <wwwdatingdirect.org>, registered with OnlineNIC Inc.
The undersigned certifies that she has acted independently and impartially and that to the best of his or her knowledge she has no known conflict in serving as Panelist in this proceeding. Hon. Carolyn Marks Johnson sits as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically August 1, 2007; the National Arbitration Forum received a hard copy of the Complaint August 3, 2007.
On August 1, 2007, OnlineNIC Inc. confirmed by e-mail to the National Arbitration Forum that the <wwwdatingdirect.org> domain name is registered with OnlineNIC Inc. and that Respondent is the current registrant of the name. OnlineNIC Inc. verified that Respondent is bound by the OnlineNIC Inc. registration agreement and thereby has agreed to resolve domain-name disputes brought by third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy").
On August
10, 2007, a Notification of Complaint and Commencement of Administrative
Proceeding (the "Commencement Notification"), setting a deadline of
August 30, 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@wwwdatingdirect.org by
e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On September 5, 2007, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Hon. Carolyn Marks Johnson as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration Forum 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. The domain name that Respondent registered, <wwwdatingdirect.org>, is confusingly similar to Complainant’s DATING DIRECT mark.
2. Respondent has no rights to or legitimate interests in the <wwwdatingdirect.org> domain name.
3. Respondent registered and used the <wwwdatingdirect.org> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, DatingDirect.com Limited, is a
Respondent registered the <wwwdatingdirect.org> domain name October 10, 2006. Respondent’s disputed domain name resolves to a website featuring links to various third-party websites, some of which offer online dating services that attempt to compete directly with Complainant.
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 will draw such inferences as the Panel 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 Complainant to 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.
The Panel finds that Complainant established rights in the DATING DIRECT mark by virtue of its registration of the mark with the UKPO. See 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.”); see also 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.").
Complainant alleges that the disputed domain name that Respondent registered, <wwwdatingdirect.org>, is confusingly similar to Complainant’s DATING DIRECT mark. The Panel agrees, as the disputed domain name incorporates the entire mark, merely adding the letters “www” to the beginning of the mark. This addition to the mark, which is a common typing error, does not negate any confusing similarity between the mark and a disputed domain name under the Policy. Moreover, the addition of the generic top-level domain “.org” to the mark is irrelevant under Policy ¶ 4(a)(i), because a top-level domain is a required element of all domain names. Thus, the Panel finds that the <wwwdatingdirect.org> domain name is confusingly similar to Complainant’s DATING DIRECT mark pursuant to Policy ¶ 4(a)(i). See Marie Claire Album v. Blakely, D2002-1015 (WIPO Dec. 23, 2002) (holding that the letters "www" are not distinct in the "Internet world" and thus the respondent 's <wwwmarieclaire.com> domain name is confusingly similar to the complainant's MARIE CLAIRE trademark); see also Neiman Marcus Group, Inc. v. S1A, FA 128683 (Nat. Arb. Forum Dec. 6, 2002) (holding confusing similarity has been established because the prefix "www" does not sufficiently differentiate the <wwwneimanmarcus.com> domain name from the complainant's NEIMAN-MARCUS mark); see also Gardline Surveys Ltd. v. Domain Fin. Ltd., FA 153545 (Nat. Arb. Forum May 27, 2003) (“The addition of a top-level domain is irrelevant when establishing whether or not a mark is identical or confusingly similar, because top-level domains are a required element of every domain name.”); see also Nev. State Bank v. Modern Ltd. – Cayman Web Dev., FA 204063 (Nat. Arb. Forum Dec. 6, 2003) (“It has been established that the addition of a generic top-level domain is irrelevant when considering whether a domain name is identical or confusingly similar under the Policy.”).
The Panel finds that Complainant satisfied Policy ¶ 4(a)(i).
Complainant next alleges that Respondent lacks rights and legitimate interests in the <wwwdatingdirect.org> domain name. Under Policy ¶ 4(a)(ii), Complainant has the initial burden of proving this allegation, but once Complainant has made a prima facie case, the burden shifts to Respondent to show that it does have rights or legitimate interests in the disputed domain name. In the instant case, the Panel finds that Complainant established a prima facie case under the Policy. See Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (holding that once the complainant asserts that the respondent has no rights or legitimate interests with respect to the domain, the burden shifts to the respondent to provide “concrete evidence that it has rights to or legitimate interests in the domain name at issue”); see also Clerical Med. Inv. Group Ltd. v. Clericalmedical.com, D2000-1228 (WIPO Nov. 28, 2000) (finding that, under certain circumstances, the mere assertion by the complainant that the respondent has no right or legitimate interest is sufficient to shift the burden of proof to the respondent to demonstrate that such a right or legitimate interest does exist).
Respondent’s failure to answer the Complaint raises the presumption that Respondent lacks rights and legitimate interests in the disputed domain name. See Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO Dec. 21, 2000) (finding that failing to respond allows a presumption that the complainant’s allegations are true unless clearly contradicted by the evidence); see also Law Soc’y of Hong Kong v. Domain Strategy, Inc., HK-0200015 (ADNDRC Feb. 12, 2003) (“A respondent is not obligated to participate in a domain name dispute . . . but the failure to participate leaves a respondent vulnerable to the inferences that flow naturally from the assertions of the complainant and the tribunal will accept as established assertions by the complainant that are not unreasonable.”).
Nevertheless, the Panel examine the evidence in the record to determine whether any proof there suggests that Respondent has rights or legitimate interests under Policy ¶ 4(c).
Respondent’s <wwwdatingdirect.org>
domain name resolves to a website featuring links to third-party websites,
some of which seek to compete directly with Complainant. The Panel presumes that Respondent earns
click-through fees when Internet users click on these links. Such use is not a bona fide offering of goods or services under Policy ¶ 4(c)(i) and it is not a legitimate noncommercial or fair use under
Policy ¶ 4(c)(iii). Further such use may
be held to indicate that Respondent lacks rights and legitimate interests in
the disputed domain name. See Ameritrade Holdings Corp. v. Polanski, FA 102715 (Nat. Arb.
Forum Jan. 11, 2002) (finding that the respondent’s use of the disputed domain
name to redirect Internet users to a financial services website, which competed
with the complainant, was not a bona fide offering of goods or
services); see also Coryn Group, Inc. v. Media
Insight, FA 198959 (Nat. Arb. Forum Dec.
5, 2003) (finding that the respondent was not using the domain names for a bona
fide offering of goods or services nor a legitimate noncommercial or fair
use because the respondent used the names to divert Internet users to a website
that offered services that competed with those offered by the complainant under
its marks).
Complainant asserts that Respondent is not commonly known by the <wwwdatingdirect.org> domain name, and the record supports this contention. This also supports findings that Respondent lacks rights and legitimate interests in the disputed domain name. Respondent’s WHOIS information does not indicate, and nothing further in the record suggests, that Respondent is commonly known by the disputed domain name. In addition, Complainant asserts that it has not authorized Respondent to use its DATING DIRECT mark for any purpose. Respondent offered no evidence to refute this assertion.
The Panel finds that Respondent lacks rights and legitimate interests in the <wwwdatingdirect.org> 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 Charles Jourdan Holding AG v. AAIM, D2000-0403 (WIPO June 27, 2000) (finding no rights or legitimate interests where (1) the respondent is not a licensee of the complainant; (2) the complainant’s prior rights in the domain name precede the respondent’s registration; (3) the respondent is not commonly known by the domain name in question).
The Panel finds that Respondent’s lack of rights or legitimate interests in the disputed domain name is further evidenced by the nature of the disputed domain name. The <wwwdatingdirect.org> domain name is a typosquatted version of Complainant’s DATING DIRECT mark, as it is a common typing mistake for Internet users to omit the period after typing “www” when searching for a particular website. See Diners Club Int’l Ltd. v. Domain Admin******It's all in the name******, FA 156839 (Nat. Arb. Forum June 23, 2003) (holding that the respondent’s <wwwdinersclub.com> domain name, a typosquatted version of the complainant’s DINERS CLUB mark, was evidence in and of itself that the respondent lacks rights or legitimate interests in the disputed domain name vis á vis the complainant); see also Nat’l Ass’n of Prof’l Baseball Leagues, Inc. v. Zuccarini, D2002-1011 (WIPO Jan. 21, 2003) (“Typosquatting … as a means of redirecting consumers against their will to another site, does not qualify as a bona fide offering of goods or services, whatever may be the goods or services offered at that site.”).
The Panel finds that Complainant satisfied Policy ¶ 4(a)(ii).
Lastly, Complainant alleges that Respondent registered and is using the <wwwdatingdirect.org> domain name in bad faith pursuant to Policy ¶ 4(a)(iii). Under Policy ¶ 4(b)(iii), bad faith registration and use can be found where a disputed domain name is being used to disrupt a complainant’s business. As Respondent in the present case is using the <wwwdatingdirect.org> domain name to display links in direct competition with Complainant, the Panel finds that this constitutes a disruption of Complainant’s business and indicates that Respondent registered and is using the disputed domain name in bad faith. See Puckett, Individually v. Miller, D2000-0297 (WIPO June 12, 2000) (finding that the respondent has diverted business from the complainant to a competitor’s website in violation of Policy ¶ 4(b)(iii)); see also S. Exposure v. S. Exposure, Inc., FA 94864 (Nat. Arb. Forum July 18, 2000) (finding the respondent acted in bad faith by attracting Internet users to a website that competes with the complainant’s business).
As mentioned previously, the Panel presumes that Respondent benefits commercially when Internet users click on the links displayed on the website that resolves from the <wwwdatingdirect.org> domain name. Respondent is therefore taking commercial advantage of the likelihood that users, presumably seeking Complainant’s services, will be confused as to Complainant’s affiliation with the disputed domain name. This is further evidence of Respondent’s bad faith registration and use under Policy ¶ 4(b)(iv). See Am. Univ. v. Cook, FA 208629 (Nat. Arb. Forum Dec. 22, 2003) (“Registration and use of a domain name that incorporates another's mark with the intent to deceive Internet users in regard to the source or affiliation of the domain name is evidence of bad faith.”); 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 typosquatted nature of the <wwwdatingdirect.org> domain name also indicates that Respondent registered and is using the disputed domain name in bad faith pursuant to Policy ¶ 4(a)(iii). See RE/MAX Int’l, Inc. v. Seocho, FA 142046 (Nat. Arb. Forum Feb. 25, 2003) (inferring that the respondent’s registration of the <wwwremax.com> domain name, incorporating the complainant’s entire mark, was done with actual notice of the complainant’s rights in the mark prior to registering the infringing domain name, evidencing bad faith); see also Black & Decker Corp. v. Khan, FA 137223 (Nat. Arb. Forum Feb. 3, 2003) (finding the <wwwdewalt.com> domain name was registered to “ensnare those individuals who forget to type the period after the ‘www’ portion of [a] web-address,” which was evidence that the domain name was registered and used in bad faith).
The Panel finds that Complainant satisfied 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 <wwwdatingdirect.org> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Carolyn Marks Johnson, Panelist
Dated: September 19, 2007.
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