CK Franchising, Inc. v. Transure Enterprise Ltd c/o Host Master
Claim Number: FA1004001322334
Complainant is CK Franchising, Inc. (“Complainant”), represented by Joan
Drake
REGISTRAR AND DISPUTED DOMAIN
NAMES
The domain names at issue are <wwwcomfortkeepers.com> and <comforkeepers.com>, registered with Above.com Pty Ltd.
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.
James A. Carmody, Esq., as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on April 30, 2010.
On May 3, 2010, Above.com Pty Ltd confirmed by e-mail to the National Arbitration Forum that the <wwwcomfortkeepers.com> and <comforkeepers.com> domain names are registered with Above.com Pty Ltd and that Respondent is the current registrant of the names. Above.com Pty Ltd has verified that Respondent is bound by the Above.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 May 12, 2010, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 1, 2010 by which Respondent could file a response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@wwwcomfortkeepers.com and postmaster@comforkeepers.com. Also on May 12, 2010, the Written Notice of the Complaint, notifying Respondent of the email addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent's registration as technical, administrative and billing contacts.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On June 4, 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed James A. Carmody, Esq., 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" through submission of a Written Notice, as defined in Rule 1. 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 names be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <wwwcomfortkeepers.com> and <comforkeepers.com> domain names are confusingly similar to Complainant’s COMFORT KEEPERS mark.
2. Respondent does not have any rights or legitimate interests in the <wwwcomfortkeepers.com> and <comforkeepers.com> domain names.
3. Respondent registered and used the <wwwcomfortkeepers.com> and <comforkeepers.com> domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, CK Franchising,
Inc., is a provider of non-medical senior care in-home services, such as
companionship, meal preparation, housekeeping, transportation, etc. Complainant owns a trademark registration for
the COMFORT KEEPERS mark with the United States Patent and Trademark Office
(“USPTO”) (e.g., Reg. No. 2,366,096
issued July 11, 2000).
Respondent, Transure Enterprise Ltd c/o Host Master, registered the <wwwcomfortkeepers.com> domain name on November 18, 2009 and the <comforkeepers.com> domain name on December 14, 2009. Both disputed domain names resolve to websites featuring a directory of links to competing services.
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 holds a USPTO trademark registration for the COMFORT KEEPERS mark (e.g., Reg. No. 2,366,096 issued July 11, 2000). The Panel finds that ownership of a trademark with the USPTO sufficiently establishes Complainant’s rights in the mark for the purposes of Policy ¶ 4(a)(i), even when the Respondent lives or operates in a country other than where the mark is registered. See Intel Corp. v. Macare, FA 660685 (Nat. Arb. Forum Apr. 26, 2006) (finding that the complainant had established rights in the PENTIUM, CENTRINO and INTEL INSIDE marks by registering the marks with the USPTO); 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).
Complainant alleges that Respondent’s <wwwcomfortkeepers.com> and <comforkeepers.com> disputed domain names are confusingly similar to Complainant’s COMFORT KEEPERS mark. In addition to both disputed domain names’ deletion of the space between the words and addition of the generic top-level domain (“gTLD”) “.com,” the <wwwcomfortkeepers.com> disputed domain names adds the prefix “www” without the period separating it from the rest of the domain name and the <comforkeepers.com> disputed domain name deletes the letter “t.” The Panel finds that these minor changes that resemble frequent typographical errors do not affect a disputed domain name’s similarity to Complainant’s mark according to Policy ¶ 4(a)(i). See Bank of Am. Corp. v. InterMos, FA 95092 (Nat. Arb. Forum Aug. 1, 2000) (finding that the respondent’s domain name <wwwbankofamerica.com> is confusingly similar to the complainant’s registered trademark BANK OF AMERICA because it “takes advantage of a typing error (eliminating the period between the www and the domain name) that users commonly make when searching on the Internet”); see also Pfizer Inc. v. BargainName.com, D2005-0299 (WIPO Apr. 28, 2005) (holding that the <pfzer.com> domain name was confusingly similar to the complainant’s PFIZER mark, as the respondent simply omitted the letter “i”). The Panel also finds that the deletion of the space between words and the addition of a gTLD have no legal effect on confusing similarity between the disputed domain names and Complainant’s mark. See Am. Int’l Group, Inc. v. Domain Admin. Ltd., FA 1106369 (Nat. Arb. Forum Dec. 31, 2007) (finding that “spaces are impermissible and a generic top-level domain, such as ‘.com,’ ‘.net,’ ‘.biz,’ or ‘.org,’ is required in domain names. Therefore, the panel finds that the disputed domain name [<americangenerallifeinsurance.com>] is confusingly similar to the complainant’s [AMERICAN GENERAL] mark.”). Therefore, the Panel finds that Respondent’s <wwwcomfortkeepers.com> and <comforkeepers.com> disputed domain names are confusingly similar to Complainant’s COMFORT KEEPERS mark.
The Panel finds Policy ¶ 4(a)(i)
has been satisfied.
Complainant contends that Respondent lacks rights and legitimate interests in the disputed domain names. According to Policy ¶ 4(a)(ii), Complainant must support this contention sufficiently and present a prima facie case against Respondent before the burden to demonstrate rights and legitimate interests is transferred to Respondent. The Panel finds Complainant has adequately presented a prima facie case in this instance. Respondent’s failure to respond to the Complaint supports a finding by the Panel that Respondent has not met its burden and therefore has not demonstrated rights and legitimate interests in the disputed domain names. See 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”); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“[Rule 14(b)] expressly provide[s] that the Panel ‘shall draw such inferences’ from the Respondent’s failure to comply with the rules ‘as it considers appropriate.”). The Panel elects, however, to consider all the evidence in the record in light of the Policy ¶ 4(c) factors to determine whether Respondent possesses any rights and legitimate interests in the disputed domain names.
Complainant argues that Respondent is not commonly known by
the <wwwcomfortkeepers.com>
and <comforkeepers.com>
disputed domain names as the WHOIS information does not facially indicate any
association between Respondent and the disputed domain names. The Panel finds this WHOIS information to be
sufficient to prove that Respondent is not commonly known by the disputed
domain names and thus consequently lacks rights and legitimate interests in the
disputed domain names under Policy ¶ 4(c)(ii). See Braun Corp. v. Loney,
FA 699652 (Nat. Arb. Forum July 7, 2006) (concluding that the respondent
was not commonly known by the disputed domain names where the WHOIS
information, as well as all other information in the record, gave no indication
that the respondent was commonly known by the disputed domain names, and the
complainant had not authorized the respondent to register a domain name
containing its registered mark); see also
Complainant asserts that Respondent uses the <wwwcomfortkeepers.com> and <comforkeepers.com> disputed domain names to redirect Internet users to websites featuring directories of pay-per-click links to competing services. The Panel finds that appropriating Complainant’s mark in the disputed domain names which redirect Complainant’s customers to sites advertising competing links is not a bona fide offering of goods or services according to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). See Gen. Mills, Inc. v. Zuccarini, FA 97050 (Nat. Arb. Forum May 30, 2001) (“[U]nder the “Policy,” Respondent may not utilize close derivations of famous and distinctive trademarks and, thus, profit from Internet users’ misspelling the Internet destinations they desire.”); see also Disney Enters., Inc. v. Kamble, FA 918556 (Nat. Arb. Forum Mar. 27, 2007) (holding that the operation of a pay-per-click website at a confusingly similar domain name was not 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)).
Complainant contends that both of Respondent’s <wwwcomfortkeepers.com> and <comforkeepers.com> disputed domain
names are only minor deviations from Complainant’s mark that result from a
single typographical error: the omission
of the period separating the “www” prefix from the rest of the domain name or
the omission of the letter “t.”
Complainant alleges that registering such typing mistakes as domain
names constitutes typosquatting, as Respondent is attempting to take advantage
of Internet users’ inadvertent misspellings or typing errors of Complainant’s
mark. The Panel finds that typosquatting
demonstrates a lack of rights and legitimate interests pursuant to Policy ¶ 4(a)(ii). 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 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’”).
The Panel finds Policy ¶ 4(a)(ii)
has been satisfied.
Complainant asserts that Respondent’s <wwwcomfortkeepers.com> and <comforkeepers.com> disputed domain names both redirect Internet users to a directory of competing links. The Panel finds that Respondent’s use of the disputed domain names to redirect Complainant’s customers away from Complainant’s website to competitors impermissibly disrupts Complainant’s business and represents bad faith registration and use according to Policy ¶ 4(b)(iii). See Jerie v. Burian, FA 795430 (Nat. Arb. Forum Oct. 30, 2006) (concluding that the respondent registered and used the <sportlivescore.com> domain name in order to disrupt the complainant’s business under the LIVESCORE mark because the respondent was maintaining a website in direct competition with the complainant); Tesco Pers. Fin. Ltd. v. Domain Mgmt. Servs., FA 877982 (Nat. Arb. Forum Feb. 13, 2007) (concluding that the use of a confusingly similar domain name to attract Internet users to a directory website containing commercial links to the websites of a complainant’s competitors represents bad faith registration and use under Policy ¶ 4(b)(iii)).
Complainant contends that the directories of links
advertised on Respondent’s webpages resolving from the <wwwcomfortkeepers.com> and <comforkeepers.com> disputed domain names are pay-per-click links
that profit Respondent whenever clicked.
By using disputed domain names that are confusingly similar to Complainant’s
mark, Respondent attempts to attract Internet users to its directory websites by
creating a likelihood of confusion in order to increase the pay-per-click
revenue potential. The Panel finds
Respondent’s activities in connection with the disputed domain names reveal bad
faith registration and use pursuant to Policy ¶ 4(b)(iv). See
The Panel has previously concluded that Respondent’s registration of the confusingly similar <wwwcomfortkeepers.com> and <comforkeepers.com> disputed domain names is typosquatting. The Panel finds such typosquatting to be evidence of bad faith registration and use according to Policy ¶ 4(a)(iii). See The Vanguard Group, Inc. v. IQ Mgmt. Corp., FA 328127 (Nat. Arb. Forum Oct. 28, 2004) (“By engaging in typosquatting, [r]espondent has registered and used the <vangard.com> domain name in bad faith pursuant to Policy ¶ 4(a)(iii).”); 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 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 <wwwcomfortkeepers.com> and <comforkeepers.com> domain names be TRANSFERRED from Respondent to Complainant.
James A. Carmody, Esq., Panelist
Dated: June 18, 2010
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