Unirush LLC v. MyPrivacyProtect.org / Domain Admin
Claim Number: FA1205001444529
Complainant is Unirush LLC (“Complainant”), represented by CitizenHawk, Inc., California, USA. Respondent is MyPrivacyProtect.org / Domain Admin (“Respondent”), India.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <wwwrushcard.com>, registered with WEB WERKS INDIA PVT. 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.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on May 17, 2012; the National Arbitration Forum received payment on May 17, 2012.
On May 18, 2012, WEB WERKS INDIA PVT. LTD confirmed by e-mail to the National Arbitration Forum that the <wwwrushcard.com> domain name is registered with WEB WERKS INDIA PVT. LTD and that Respondent is the current registrant of the name. WEB WERKS INDIA PVT. LTD has verified that Respondent is bound by the WEB WERKS INDIA PVT. LTD registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On May 23, 2012, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 12, 2012 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@wwwrushcard.com. Also on May 23, 2012, the Written Notice of the Complaint, notifying Respondent of the e-mail 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 18, 2012, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Sandra J. Franklin 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 Electronic and Written Notices, as defined in Rule 1 and Rule 2. 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 <wwwrushcard.com> domain name is confusingly similar to Complainant’s RUSHCARD mark.
2. Respondent does not have any rights or legitimate interests in the <wwwrushcard.com> domain name.
3. Respondent registered and used the <wwwrushcard.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant was founded in 2003 and was one of the first business entities to introduce the prepaid Visa debit cards, known as the “Rushcard.” Complainant owns trademark registrations for its RUSHCARD mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 2,826,230 registered March 23, 2004).
Respondent registered the <wwwrushcard.com> domain name on July 8, 2005, and the corresponding website contains hyperlinks to businesses offering services and products similar to those offered by Complainant under its RUSHCARD mark.
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."
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.
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.”).
The Panel finds that Complainant’s trademark registrations for the RUSHCARD mark evidence Complainant’s rights in the mark as set forth by Policy ¶ 4(a)(i). 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 Reebok Int’l Ltd. v. Santos, FA 565685 (Nat. Arb. Forum Dec. 21, 2005) (finding trademark registration with the USPTO was adequate to establish rights pursuant to Policy ¶ 4(a)(i)). Further, the Panel notes that Policy ¶ 4(a)(i) does not mandate that Complainant register its mark in the country where Respondent resides and operates. See Renaissance Hotel Holdings, Inc. v. Renaissance Cochin, FA 932344 (Nat. Arb. Forum Apr. 23, 2007) (finding that it does not matter whether the complainant has registered its trademark in the country in which the respondent resides, only that it can establish rights in some jurisdiction).
Respondent’s <wwwrushcard.com> domain name includes Complainant’s entire mark and merely adds the generic top-level domain (“gTLD”) “.com” and the “www” and “.com.” Therefore, the Panel finds that the disputed domain name tis confusingly similar to Complainant’s mark pursuant to Policy ¶ 4(a)(i). See Register.com Inc. v. House, FA 167970 (Nat. Arb. Forum Aug. 22, 2003) (finding the prefix “www” followed by the trademark with no period separating them did not distinguish the mark and was confusingly similar); see also Jerry Damson, Inc. v. Tex. Int’l Prop. Assocs., FA 916991 (Nat. Arb. Forum Apr. 10, 2007) (“The mere addition of a generic top-level domain (“gTLD”) “.com” does not serve to adequately distinguish the Domain Name from the mark.”).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(i).
Once Complainant makes a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), the burden shifts to Respondent to show it does have rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name); see also AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006) (“Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.”).
Complainant alleges that Respondent has not been commonly known by the <wwwrushcard.com> domain name, as demonstrated by the WHOIS information, identifying “Myprivacyprotect.org / Domain Admin” as the registrant. Complainant also states that Respondent does not have permission to use the RUSHCARD mark in a domain name. The panel in United Way of Am. v. Zingaus, FA 1036202 (Nat. Arb. Forum Aug. 30, 2007), stated that the respondent could not have been commonly known by the disputed domain name if the WHOIS information named “Alex Zingaus” as the registrant of the <unitedwayoprffp.org> domain name. In Reese v. Morgan, FA 917029 (Nat. Arb. Forum Apr. 5, 2007), the panel held that, without evidence showing that the respondent was commonly known by the domain name, including the WHOIS information and the complainant’s claims that it did not license the respondent to use its mark in a domain name, the respondent was not commonly known by the disputed domain name. The Panel finds that Respondent is not commonly known by the <wwwrushcard.com> domain name under Policy ¶ 4(c)(ii).
Complainant asserts that, by operating a website that presents third-party hyperlinks for services similar to Complainant’s, Respondent does not use the disputed domain name to make a bona fide offering of goods or services and is not making a legitimate noncommercial or fair use of the disputed domain name. The Panel finds that Respondent’s use of the <wwwrushcard.com> domain name does not constitute a bona fide offering of goods or services according to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use according to Policy ¶ 4(c)(iii). See ALPITOUR S.p.A. v. Albloushi, FA 888651 (Nat. Arb. Forum Feb. 26, 2007) (rejecting the respondent’s contention of rights and legitimate interests in the <bravoclub.com> domain name because the respondent was merely using the domain name to operate a website containing links to various competing commercial websites, which the panel did not find to be a use 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 also Expedia, Inc. v. Compaid, FA 520654 (Nat. Arb. Forum Aug. 30, 2005) (finding that the respondent’s use of the <expediate.com> domain name to redirect Internet users to a website featuring links to travel services that competed with the complainant was not 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)).
Complainant contends that, by adding a “www” to the beginning of the RUSHCARD mark in the disputed domain name, Respondent takes advantage of typical misspellings of Complainant’s domain name in order to gain visitors to Respondent’s resolving website, known as “typosquatting.” The Panel finds that typosquatting further demonstrates Respondent’s lack of rights or legitimate interests in the <wwwrushcard.com> domain name pursuant to Policy ¶ 4(a)(ii). See Amazon.com, Inc. v. J J Domains, FA 514939 (Nat. Arb. Forum Sept. 2 2005) (“respondent lacks rights and legitimate interests in the <www-amazon.com> domain name because respondent's addition of the prefix "www-" to complainant's AMAZON.COM mark constitutes typosquatting.”); see also RE/MAX Int’l, Inc. v. Seocho, FA 142046 (Nat. Arb. Forum Feb. 25, 2003) (finding that the respondent has no rights or legitimate interests in the <wwwremax.com> domain name as it is merely using the complainant’s mark to earn profit from pop-up advertisements).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
Respondent operates a website, corresponding to the <wwwrushcard.com> domain name, that provides links to services similar to those offered by Complainant and takes advantage of the reputation associated with the RUSHCARD mark in order to generate revenue for Respondent. Therefore, Panel finds that Respondent registered and uses the disputed domain name in bad faith pursuant to Policy ¶ 4(b)(iv). See AltaVista Co. v. Krotov, D2000-1091 (WIPO Oct. 25, 2000) (finding bad faith under Policy ¶ 4(b)(iv) where the respondent’s domain name resolved to a website that offered links to third-party websites that offered services similar to the complainant’s services and merely took advantage of Internet user mistakes); see also Univ. of Houston Sys. v. Salvia Corp., FA 637920 (Nat. Arb. Forum Mar. 21, 2006) (“Respondent is using the disputed domain name to operate a website which features links to competing and non-competing commercial websites from which Respondent presumably receives referral fees. Such use for Respondent’s own commercial gain is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv).”).
The Panel also finds that Respondent’s registration of a typosquatted domain name to capitalize on the reputation associated with Complainant’s mark provides evidence that Respondent registered and uses the <wwwrushcard.com> domain name in bad faith under Policy ¶ 4(a)(iii). The panel in Nat’l Ass’n of Prof’l Baseball Leagues v. Zuccarini, D2002-1011 (WIPO Jan. 21, 2003), found that registering a word that is misspelled with the purpose of intercepting traffic from the intended destination is evidence that Respondent registered the disputed domain name in bad faith. The panel in Vanguard Group, Inc. v. IQ Mgmt. Corp., FA 328127 (Nat. Arb. Forum Oct. 28, 2004), asserted that the respondent’s typosquatting demonstrates its bad faith registration and use pursuant to Policy ¶ 4(a)(iii).
The Panel finds that Complainant has 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 <wwwrushcard.com> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: June 22, 2012
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