DatingDirect.com Limited v. Tabish Tabish
Claim Number: FA0801001139910
Complainant is DatingDirect.com Limited (“Complainant”), represented by Adam
Taylor, of Adlex Solicitors,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <onlinedatingdirect.com>, registered with Direct Information Pvt Ltd d/b/a Publicdomainregistry.
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 January 24, 2008; the National Arbitration Forum received a hard copy of the Complaint on January 25, 2008.
On January 24, 2008, Direct Information Pvt Ltd d/b/a Publicdomainregistry confirmed by e-mail to the National Arbitration Forum that the <onlinedatingdirect.com> domain name is registered with Direct Information Pvt Ltd d/b/a Publicdomainregistry and that Respondent is the current registrant of the name. Direct Information Pvt Ltd d/b/a Publicdomainregistry has verified that Respondent is bound by the Direct Information Pvt Ltd d/b/a Publicdomainregistry 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 January 28, 2008, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of February 18, 2008 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@onlinedatingdirect.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On February 22, 2008, 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 name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <onlinedatingdirect.com> domain name is confusingly similar to Complainant’s DATINGDIRECT mark.
2. Respondent does not have any rights or legitimate interests in the <onlinedatingdirect.com> domain name.
3. Respondent registered and used the <onlinedatingdirect.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, DatingDirect.com Limited, is an online dating agency. Complainant owns and operates a business website with the <datingdirect.com> domain name. Complainant holds a trademark registration of the DATINGDIRECT mark with United Kingdom Intellectual Property Office (“UKIPO”) (Reg. 2,319,425 issued June 16, 2006, filed Dec. 24, 2002).
Respondent registered the disputed domain name on July 22, 2005. The <onlinedatingdirect.com> domain name is not being actively used.
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.
Although the disputed domain name was registered before the recognized trademark, the relevant date for a Policy ¶ 4(a)(i) analysis is the filing date for the mark with a recognized trademark organization. The DATINGDIRECT mark was filed with the UKIPO before the disputed domain name was registered. The Panel finds this is sufficient to establish rights under Policy ¶ 4(a)(i). See Planetary Soc’y v. Rosillo, D2001-1228 (WIPO Feb. 12, 2002) (holding that the effective date of Complainant’s trademark rights date back to the application’s filing date); see also Thompson v. Zimmer, FA 190625 (Nat. Arb. Forum Oct. 27, 2003) (“As Complainant’s trademark application was subsequently approved by the U.S. Patent and Trademark Office, the relevant date for showing ‘rights’ in the mark for the purposes of Policy ¶ 4(a)(i) dates back to Complainant’s filing date.”).
The disputed domain name is confusingly similar to Complainant’s mark. The disputed domain name adds the common term, “online,” as well as the generic top-level domain (“gTLD”) “.com.” These additions are not sufficient to eliminate the confusing similarity between the <onlinedatingdirect.com> domain name and Complainant’s mark. The Panel finds that the disputed domain name is confusingly similar to Complainant’s mark under Policy ¶ 4(a)(i). See Broadcom Corp. v. Domain Depot, FA 96854 (Nat. Arb. Forum Apr. 23, 2001) (finding the <broadcomonline.com> domain name is confusingly similar to the complainant’s BROADCOM mark); see also 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).
The Panel finds that Policy ¶ 4(a)(i)
has been satisfied.
Complainant asserts that Respondent lacks rights and legitimate interests in the <onlinedatingdirect.com> domain name. Complainant has the burden of proof for this allegation persuant to Policy ¶ 4(a)(ii). Once Complainant has made a prima facie showing, the burden of proof shifts to Respondent. The Panel finds Complainant has met its burden. See 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”); 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 respond to the Complaint allows the Panel to assume Respondent has no rights or legitimate interests in the <onlinedatingdirect.com> domain name. See Am. Express Co. v. Fang Suhendro, FA 129120 (Nat. Arb. Forum Dec. 30, 2002) (“[B]ased on Respondent's failure to respond, it is presumed that Respondent lacks all rights and legitimate interests in the disputed domain name.”); 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 assertions in this regard.”). Nonetheless, the Panel will examine the record to determine legitimate rights or interests under Policy ¶ 4(c).
The record contains nothing to suggest Respondent is
commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii). The WHOIS
information identifies Respondent as “Tabish Tabish” with no reference to the <onlinedatingdirect.com>
domain name. Respondent is not
licensed or authorized to use the DATINGDIRECT mark. The Panel finds that Respondent has no rights
or legitimate interests to the <onlinedatingdirect.com> domain name under Policy ¶ 4(c)(ii). See Tercent Inc. v. Lee Yi,
FA 139720 (Nat. Arb. Forum
The Panel finds that Respondent is not currently using the disputed domain name, as the <onlinedatingdirect.com> domain name does not resolve to an active website. Based on the evidence in the record, the disputed domain name has never been actively used. There is no evidence that Respondent is preparing to use the <onlinedatingdirect.com> 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). Therefore, the Panel finds Respondent lacks rights and legitimate interests under Policy 4(a)(ii). See Open Sys. Computing AS v. degli Alessandri, D2000-1393 (WIPO Dec. 11, 2000) (finding that the respondent did not establish rights and legitimate interests in the domain name where the respondent mentioned that it had a business plan for the website at the time of registration but did not furnish any evidence in support of this claim); see also LFP, Inc. v. B & J Props., FA 109697 (Nat. Arb. Forum May 30, 2002) (A the respondent cannot simply do nothing and effectively “sit on his rights” for an extended period of time when that the respondent might be capable of doing otherwise).
The Panel finds that Policy ¶ 4(a)(ii)
has been satisfied.
Respondent is not currently making an active use of the <onlinedatingdirect.com>
domain name. Failure to make an active use of the disputed
domain name constitutes bad faith registration and use under Policy ¶ 4(a)(iii). See DCI
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 <onlinedatingdirect.com> domain name be TRANSFERRED from Respondent to Complainant.
Tyrus R. Atkinson, Jr., Panelist
Dated: March 6, 2008
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