Client First Settlement Funding, LLC v. Domain Privacy Service
Claim Number: FA1302001483681
Complainant is Client First Settlement Funding, LLC (“Complainant”), represented by Chanley T. Howell, Florida, USA. Respondent is Domain Privacy Service (“Respondent”), Utah, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <clientfirstfinding.com>, registered with FASTDOMAIN, INC.
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.
David A. Einhorn appointed as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on February 5, 2013; the National Arbitration Forum received payment on February 11, 2013.
On February 7, 2013, FASTDOMAIN, INC. confirmed by e-mail to the National Arbitration Forum that the <clientfirstfinding.com> domain name is registered with FASTDOMAIN, INC. and that Respondent is the current registrant of the name. FASTDOMAIN, INC. has verified that Respondent is bound by the FASTDOMAIN, INC. 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 15, 2013, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 7, 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@clientfirstfinding.com. Also on February 15, 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 21, 2013, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed David A. Einhorn 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
Policy ¶ 4(a)(i): Complainant’s Rights / Confusing Similarity
· Complainant has rights in the CF CLIENT FIRST SETTLEMENT FUNDING service mark by way of United States Patent & Trademark Office (“USPTO”) registrations for the mark. See Reg. No. 4,224,286 registered on Oct. 16, 2012 (filed on Aug. 17, 2011).
· Complainant also owns common law trademark rights in the CLIENTFIRSTFUNDING.COM and CLIENT FIRST SETTLEMENT FUNDING marks. Complainant has used the marks and spent a substantial amount of time, money and resources marketing its services under these marks since on or about February 2008. Complainant had sales of $4,900,000 throughout the United States under these marks prior to the registration date of Respondent’s domain name.
· Respondent has merely misspelled the term “funding” in generating its confusingly similar <clientfirstfinding.com> domain name.
Policy ¶ 4(a)(ii): Respondent Lacks Rights & Legitimate Interests
· Respondent has not been commonly known by the disputed domain name.
· Respondent has made no bona fide offering of goods or services through its inherently commercial offering of services in direct competition with Complainant. Respondent is using the domain name to redirect Internet users to a competitor of Complainant known as “Structured Settlement Quotes.” Furthermore, the domain name itself resolves to the <structuredsettlement-quotes.com> domain name. Respondent is thus simply diverting customers to another business when those customers intended to do business with Complainant.
· Respondent is clearly typosquatting. The domain name differs from Complainant’s mark by a mere single character and embodies a common misspelling of the Complainant’s marks.
Policy ¶ 4(a)(iii): Respondent’s Bad Faith Use & Registration
· Respondent is using the domain name to confuse Internet users into believing that Complainant and its mark are sponsors or owners of the disputed domain name. Respondent then redirects Internet users to a competing business’s website found at the <structuredsettlement-quotes.com> domain name. This tactic ensures that Respondent and this competing business receive the Internet users’ money, even if the user thought they were doing business with Complainant.
· Respondent’s typosquatting is in itself evidence of bad faith use and registration. Respondent has merely registered a domain name that is a common misspelling of Complainant’s mark.
· Respondent knew that it was making use of a domain name that would infringe upon Complainant’s rights. This is apparent by the fact that the domain name differs from Complainant’s own domain name by a single character and is being used to resolve exclusively to the domain name of Complainant’s competitor.
B. Respondent
Respondent failed to submit a Response in this proceeding. The Panel notes, however, that the <clientfirstfinding.com> domain name was registered on January 6, 2010.
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.”).
Complainant contends that it has rights in the CF CLIENT FIRST SETTLEMENT FUNDING mark by way of USPTO registrations for a service mark. See Reg. No. 4,224,286 registered on Oct. 16, 2012 (filed on Aug. 17, 2011). The Panel agrees that the USPTO registration is satisfactory under the Policy. See Vivendi Universal Games v. XBNetVentures Inc., FA 198803 (Nat. Arb. Forum Nov. 11, 2003) (“Complainant's federal trademark registrations [with the USPTO] establish Complainant's rights in the BLIZZARD mark.”).
Complainant also asserts that it owns common law trademark rights in the CLIENT FIRST SETTLEMENT FUNDING and CLIENTFIRSTFUNDING.COM marks. Complainant asserts that it uses these marks in its business letterheads, business cards, advertising materials and other marketing and promotional materials. Complainant alleges that it has spent a substantial amount of time, money and resources marketing its services under these marks since in or about February 2008. Complainant has provided a declaration stating that it had sales of $4,900,000 throughout the United States under these marks prior to the registration date of Respondent’s domain name. Previous panels have held that a complainant shows common law rights in a mark when that complainant has illustrated that its use of a mark has given that mark a secondary meaning beyond the ordinary or customary usage of that term/phrase by the general public. See, e.g., Williams v. WhoisGuard Protected, FA 1043246 (Nat. Arb. Forum Sept. 11, 2007) (finding that a complainant had sufficiently established common law rights where the popularity of complainant’s website identical to complainant’s trademark had allowed complainant to generate substantial revenue from advertisements featured on the site). The Panel accordingly finds that Complainant has established common law rights in its CLIENT FIRST SETTLEMENT FUNDING and CLIENTFIRSTFUNDING.COM marks pursuant to Policy 4(a)(i), dating prior to the registration date of Respondent’s domain name.
Complainant further contends that Respondent has misspelled the term “funding” in generating its confusingly similar <clientfirstfinding.com> domain name. The Panel agrees that Respondent’s domain name is confusingly similar to the CLIENTFIRSTFUNDING.COM domain name under Policy ¶ 4(a)(i) because of this minor substitution of a single character.
Complainant asserts that Respondent has not been commonly known by the disputed domain name. The Panel notes that Respondent elected to list “Domain Privacy Service” as the domain name’s registrant. The Panel concludes that the record illustrates no affirmative evidence suggesting that Respondent has ever been commonly known by the <clientfirstfinding.com> domain name under Policy ¶ 4(c)(ii).
Complainant also contends that Respondent has made no bona fide offering of goods or services by redirecting Internet users to the commercial offerings on the disputed domain name’s resolving content pages. Complainant notes that Respondent is using the <clientfirstfinding.com> domain name to redirect Internet users to a competitor of Complainant known as “Structured Settlement Quotes.” Complainant further points out that the domain name itself resolves to the competing website at <structuredsettlement-quotes.com>. The Panel notes that Complainant’s contentions in regards to the content of the <clientfirstfinding.com> domain name are supported by the record. The Panel further agrees that a Policy ¶ 4(c)(i) bona fide offering of goods or services cannot arise when the domain name is used to send Internet users to another domain name, and agrees that there can be no Policy ¶ 4(c)(iii) legitimate noncommercial or fair use in directing Internet users to a commercial business. See WeddingChannel.com Inc. v. Vasiliev, FA 156716 (Nat. Arb. Forum June 12, 2003) (finding that the respondent’s use of the disputed domain name to redirect Internet users to websites unrelated to the complainant’s mark, websites where the respondent presumably receives a referral fee for each misdirected Internet user, was not a bona fide offering of goods or services as contemplated by the Policy).
Complainant avers that Respondent is typosquatting. The Panel agrees that the presence of typosquatting in this disputed domain name is in itself strong evidence that Respondent has no rights or legitimate interests in this domain name under Policy ¶ 4(a)(ii). See 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’”).
Thus, Complainant has also satisfied Policy ¶ 4(a)(ii).
Complainant asserts that Respondent is using the domain name to confuse Internet users into believing that Complainant and its mark are the sponsors or owners of the disputed domain name. Complainant notes that Respondent redirects Internet users to a competing business’s website found at the <structuredsettlement-quotes.com> domain name. The Panel agrees that Respondent’s decision to redirect Internet users visiting this confusingly similar domain name to another domain name operated by Complainant’s competitors illustrates Policy ¶ 4(b)(iv) bad faith through the confusion of Internet users. See Identigene, Inc. v. Genetest Labs., D2000-1100 (WIPO Nov. 30, 2000) (finding bad faith where the respondent's use of the domain name at issue to resolve to a website where similar services are offered to Internet users is likely to confuse the user into believing that the complainant is the source of or is sponsoring the services offered at the site).
Complainant also contends that Respondent’s typosquatting is in itself evidence of bad faith use and registration. The Panel agrees that Respondent’s registration of a domain name consisting of the entire CLIENTFIRSTFUNDING.COM common law mark with a typographical error that an Internet user would make in hitting “i” rather than “u” on a keyboard illustrates Respondent’s bad faith registration and use under Policy ¶ 4(a)(iii). See Nextel Commc’ns Inc. v. Geer, FA 477183 (Nat. Arb. Forum July 15, 2005) (finding that the respondent’s registration and use of the <nextell.com> domain name was in bad faith because the domain name epitomized typosquatting in its purest form).
Thus, Complainant has also 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 <clientfirstfinding.com> domain name be TRANSFERRED from Respondent to Complainant.
David A. Einhorn, Panelist
Dated: April 17, 2013
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page