Match.com, L.L.C. v. PPA Media Services / Ryan G Foo
Claim Number: FA1301001482647
Complainant is Match.com, L.L.C. (“Complainant”), represented by CitizenHawk, Inc., California, USA. Respondent is PPA Media Services / Ryan G Foo (“Respondent”), Chile.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <wwwmatch.com>, registered with INTERNET.BS CORP.
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.
Paul M. DeCicco, as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on January 29, 2013; the National Arbitration Forum received payment on January 29, 2013.
On February 4, 2013, INTERNET.BS CORP. confirmed by e-mail to the National Arbitration Forum that the <wwwmatch.com> domain name is registered with INTERNET.BS CORP. and that Respondent is the current registrant of the name. INTERNET.BS CORP. has verified that Respondent is bound by the INTERNET.BS CORP. 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 February 11, 2013, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 4, 2013 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@wwwmatch.com. Also on February 11, 2013, 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 March 15, 2013, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Paul M. DeCicco 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
Complainant contends as follows:
Complainant has rights in the MATCH.COM mark which it uses in connection with online dating and introduction services.
Complainant is the owner of numerous federal trademark registrations for the MATCH.COM mark including through the United States Patent and Trademark Office (“USPTO”) (Reg. No. 2,088,545 registered Aug. 19, 1997).
The <wwwmatch.com> domain name is confusingly similar to the MATCH.COM mark and takes advantage of the typing error of leaving out the “.” between “www” and the Complainant’s <match.com> domain name when entering Complainant’s worldwide web address.
Respondent does not have rights or legitimate interests in the <wwwmatch.com> domain name. Respondent is not commonly known by the disputed domain name. Respondent is not sponsored by or legitimately affiliated with Complainant, and is not licensed, authorized, or otherwise permitted to use the MATCH.COM mark in a domain name. Additionally, the WHOIS record is not suggestive of Respondent being known by the <wwwmatch.com> domain name or some derivative of it.
Respondent is using the <wwwmatch.com> domain name to redirect unsuspecting Internet users to a website featuring generic links to third-party websites, some of which directly compete with Complainant’s business. Respondent presumably receives pay-per-click fees from the linked websites.
Respondent has been the subject of multiple past UDRP disputes which resulted in the transfer of disputed domain names. See, e.g., Getty Images (US), Inc. v. PPA Media Servs. / Ryan G Foo, FA 1443660 (Nat. Arb. Forum Jul. 2, 2012); see also Fandango, LLC v. PPA Media Servs. / Ryan G Foo, FA 1439412 (Nat. Arb. Forum Jun. 4, 2012); see also Euromarket Designs, Inc. d/b/a Crate & Barrel v. PPA Media Servs. / Ryan G Foo, FA 1440326 (Nat. Arb. Forum May 28, 2012).
The <wwwmatch.com> domain name’s resolving website displays links to competing third-party websites which allows Respondent to manipulate Complainant’s mark and achieve a wrongful competitive advantage.
The diversion of Internet users to websites promoting products and services that compete with Complainant’s offerings via the <wwwmatch.com> domain name is disruptive.
Respondent typosquatted the MATCH.COM mark in forming the <wwwmatch.com> domain name. Respondent simply removes the punctuation usually existing between “www” and the substantive part of a domain name. This has been found to be a measure to take advantage of Internet users’ mistyping when seeking a domain name, and thus qualified by bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant holds trademark registrations with the USPTO for the MATCH.COM mark.
Complainant acquired rights in its MATCH.COM mark prior to Respondent’s registration of the at-issue domain name.
Respondent is not authorized to use Complainant’s trademark in any capacity.
The at-issue domain name addresses a website that displays links to competing third-party websites as well as other websites.
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 at-issue domain name is confusingly similar to a trademark in which Complainant has rights.
Complainant has rights in the MATCH.COM mark pursuant to Policy ¶ 4(a)(i) by virtue of its owning a federal trademark registration for the MATCH.COM mark. See Trip Network Inc. v. Alviera, FA 914943 (Nat. Arb. Forum Mar. 27, 2007) (finding that the complainant’s federal trademark registrations for the CHEAPTICKETS and CHEAPTICKETS.COM marks were adequate to establish its rights in the mark pursuant to Policy ¶ 4(a)(i)). Additionally, it is irrelevant that the trademark may have been registered outside of the Respondent’s country of residence. See Williams-Sonoma, Inc. v. Fees, FA 937704 (Nat. Arb. Forum Apr. 25, 2007) (finding that it is irrelevant whether the complainant has registered its trademark in the country of the respondent’s residence).
In forming the at-issue domain name Respondent prefixes Complainant’s entire trademark with “www”. However, after doing so the resulting domain name is nonetheless undeniably reminiscent of Complainant’s mark. Therefore, the Panel concludes that Respondent’s <wwwmatch.com> domain name is confusingly similar to Complainant’s MATCH.COM mark pursuant to Policy ¶ 4(a)(i). See Register.com Inc. v. House, FA 167970 (Nat. Arb. Forum Aug. 22, 2003) (finding that adding the prefix “www” to a domain name without separating it from the mark by a period does not negate a finding of confusing similarity).
Respondent lacks both rights and legitimate interests in respect of the at-issue domain name. Respondent is not authorized to use Complainant’s trademark in any capacity and, as discussed below, there are no Policy ¶4(c) circumstances from which the Panel might find that Respondent has rights or interests in respect of the at‑issue domain name.
Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with affirmative evidence of its rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006). Since Respondent failed to respond and as discussed below there is no evidence supporting any finding pursuant to Policy 4(c) suggesting that Respondent has rights in the at-issue domain name, Complainant’s prima facie showing acts conclusively.
The WHOIS information for the at-issue domain name identifies Respondent as “PPA Media Services / Ryan G Foo” The record before the Panel contains no evidence that might otherwise tend to prove that Respondent is nevertheless commonly known by the at-issue domain name despite the contrary WHOIS information. The Panel therefore finds that Respondent is not commonly known by the <wwwmatch.com> domain name for the purposes of Policy ¶ 4(c)(ii). See Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Nat. Arb. Forum July 17, 2006) (concluding that the respondent was not commonly known by the <coppertown.com> domain name where there was no evidence in the record, including the WHOIS information, suggesting that the respondent was commonly known by the disputed domain name).
Respondent uses the <wwwmatch.com> domain name to redirect unsuspecting Internet users to a website featuring generic links to third-party websites, some of which directly compete with Complainant’s business. The Panel reasonably presumes that Respondent receives pay-per-click fees when a website visitor navigates to one or more of the linked third party websites. Respondent’s use of the at-issue domain name in this manner is neither a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See 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)).
The at-issue domain name was registered is being used in bad faith. As discussed below, there are multiple Policy ¶4(b) bad faith circumstances present and there is additional non-Policy ¶4(b) evidence from which the Panel may conclude pursuant to Policy ¶4(a)(iii) that Respondent acted in bad faith in registering and using the at-issue domain name.
Respondent is a party to multiple past UDRP disputes each of which resulted in the transfer of the at-issue domain names from Respondent to the relevant complainant. See, e.g., Getty Images (US), Inc. v. PPA Media Servs. / Ryan G Foo, FA 1443660 (Nat. Arb. Forum Jul. 2, 2012); see also Fandango, LLC v. PPA Media Servs. / Ryan G Foo, FA 1439412 (Nat. Arb. Forum Jun. 4, 2012); see also Euromarket Designs, Inc. d/b/a Crate & Barrel v. PPA Media Servs. / Ryan G Foo, FA 1440326 (Nat. Arb. Forum May 28, 2012). Where, such as here, Respondent has engaged in bad faith regarding multiple UDRP proceedings, pursuant to Policy ¶ 4(b)(ii) Respondent’s bad faith may be inferred in the instant proceeding. See Westcoast Contempo Fashions Ltd. v. Manila Indus., Inc., FA 814312 (Nat. Arb. Forum Nov. 29, 2006) (finding bad faith registration and use pursuant to Policy ¶ 4(b)(ii) where the respondent had been subject to numerous UDRP proceedings where panels ordered the transfer of disputed domain names containing the trademarks of the complainants).
As mentioned above Respondent uses the confusingly similar at-issue domain name to address a website displaying links to Complainant’s competitors. Using <wwwmatch.com> to direct Internet users ostensibly looking for Complainant to websites promoting products and services that compete with Complainant disrupts Complainant’s business. These circumstances demonstrate under Policy ¶ 4(b)(iii) that Respondent registered and is using the <wwwmatch.com> domain name in bad faith. See Tesco Pers. Fin. Ltd. v. Domain Mgmt. Servs., FA 877982 (Nat. Arb. Forum Feb. 13, 2007) (holding that the display of competitive links on a disputed domain name diverts the complainant’s customers and thus disrupts the complainant’s business).
Furthermore, using the confusingly similar at-issue domain name to link to Complainant’s competitors allows Respondent through its unauthorized use of Complainant’s mark to gain a wrongful competitive advantage over Complainant. Respondent’s intentional attempt to attract, for commercial gain, Internet users to the <wwwmatch.com> website by exploiting the users likely confusion as to the source, sponsorship, and/or affiliation of such website demonstrates under Policy ¶ 4(b)(iv) that Respondent registered and is using the <wwwmatch.com> domain name in bad faith. 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).
Finally, Respondent is typosquatting. In designing the at-issue domain name Respondent removed the period, “.”, normally entered in the browser address bar between “www” and <match.com>. In so doing Respondent sought to take advantage of Internet users who are intent on visiting Complainant’s <match.com> website, but who inadvertently omit the period after “www” when typing Complainant’s URL. It goes without saying that when an Internet user makes this mistake he or she lands on Respondent’s <wwwmatch.com> website rather than Complainant’s <match.com> website as he or she intended. These circumstance further suggest Respondent’s bad faith under Policy ¶ 4(a)(iii). See 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,” and evidence that the domain name was registered and used in bad faith).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <wwwmatch.com> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: March 17, 2013
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