Affordable Care, Inc. v. Pulsar Media Inc.
Claim Number: FA1510001644581
Complainant is Affordable Care, Inc. (“Complainant”), represented by CitizenHawk, Inc., California, USA. Respondent is Pulsar Media Inc. (“Respondent”), Panama.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <wwwaffordabledentures.com>, registered with PSI-USA, Inc. dba Domain Robot.
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.
Hon. Karl V. Fink (Ret.) as Panelist.
Complainant submitted a Complaint to the Forum electronically on October 29, 2015; the Forum received payment on October 29, 2015.
On October 30, 2015, PSI-USA, Inc. dba Domain Robot confirmed by e-mail to the Forum that the <wwwaffordabledentures.com> domain name is registered with PSI-USA, Inc. dba Domain Robot and that Respondent is the current registrant of the name. PSI-USA, Inc. dba Domain Robot has verified that Respondent is bound by the PSI-USA, Inc. dba Domain Robot 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 November 2, 2015, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 23, 2015 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@wwwaffordabledentures.com. Also on November 2, 2015, 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 Forum transmitted to the parties a Notification of Respondent Default.
On November 25, 2015, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Hon. Karl V. Fink (Ret.) as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the 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 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.
Complainant
Complainant uses the AFFORDABLE DENTURES mark in connection with its business as a national denture provider. Complainant owns the AFFORDABLE DENTURES mark through its trademark registration with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 2,546,707, registered March 12, 2002). The disputed domain name is confusingly similar to the AFFORDABLE DENTURES mark, because the disputed domain name contains the mark in its entirety, and Respondent has attached the common domain name prefix “www” to the beginning of the domain and the generic top-level domain (“gTLD”) “.com” to the end of the domain.
Respondent lacks rights or legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii). Respondent is not commonly known by the disputed domain name, as evidenced by the available WHOIS information for Respondent. Additionally, Respondent has failed to provide a bona fide offering of goods or services or a legitimate noncommercial or fair use. Rather, Respondent uses the disputed 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 has registered and is using the disputed domain name in bad faith under Policy ¶ 4(a)(iii). Respondent is using the disputed domain name to disrupt Complainant’s business by redirect Internet users to competitors of Complainant. Further, Respondent is likely receiving commercial gain through this process. Finally, Respondent appears to be typosquatting in bad faith.
Respondent
Respondent did not submit a Response in this proceeding.
For the reasons set forth below, the Panel finds Complainant is entitled to the requested relief of transfer of the <wwwaffordabledentures.com> domain name.
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 uses the AFFORDABLE DENTURES mark in connection with its business as a national denture provider. Complainant claims to own the AFFORDABLE DENTURES mark through its trademark registration with the USPTO (Reg. No. 2,546,707, registered March 12, 2002). Past panels have found such registrations to be sufficient in demonstrating a complainant’s rights in a mark under Policy ¶ 4(a)(i). 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.”). Accordingly, the Panel finds that Complainant has established rights in the mark under Policy ¶ 4(a)(i).
Complainant argues that the disputed domain name is confusingly similar to the AFFORDABLE DENTURES mark, because the disputed domain name contains the mark in its entirety, and Respondent has attached the common domain name prefix “www” to the beginning of the domain and the generic top-level domain (“gTLD”) “.com” to the end of the domain. Generally, panels have found that these changes are insignificant under a Policy ¶ 4(a)(i) analysis. See Trip Network Inc. v. Alviera, FA 914943 (Nat. Arb. Forum Mar. 27, 2007) (concluding that the affixation of a gTLD to a domain name is irrelevant to a Policy ¶ 4(a)(i) analysis); see also Neiman Marcus Group, Inc. v. S1A, FA 128683 (Nat. Arb. Forum Dec. 6, 2002) (holding confusing similarity has been established because the prefix "www" does not sufficiently differentiate the <wwwneimanmarcus.com> domain name from the complainant's NEIMAN-MARCUS mark). Therefore, the Panel finds that the <wwwaffordabledentures.com> domain name is confusingly similar to the AFFORDABLE DENTURES mark under Policy ¶ 4(a)(i).
Complainant has proved this element.
Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), and then 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 argues that Respondent lacks rights or legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii). In so arguing, Complainant states that Respondent is not commonly known by the disputed domain name, as demonstrated by the available WHOIS information for the disputed domain name. The WHOIS lists “Pulsar Media Inc.” as registrant of the disputed domain name. Respondent has not submitted a response to refute any of Complainant’s arguments. Given the lack of evidence to indicate otherwise, the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See IndyMac Bank F.S.B. v. Eshback, FA 830934 (Nat. Arb. Forum Dec. 7, 2006) (finding that the respondent failed to establish rights and legitimate interests in the <emitmortgage.com> domain name as the respondent was not authorized to register domain names featuring the complainant’s mark and failed to submit evidence that it is commonly known by the domain name).
Complainant argues that Respondent is not using the domain name for a bona fide offering of goods or services, or a legitimate noncommercial or fair use of the disputed domain name. Respondent uses the disputed domain name to redirect Internet users to competitors of Complainant by displaying hyperlinks on the resolving webpage. The Panel therefore finds that Respondent is not using the domain name for a bona fide offering of goods or services, or a legitimate noncommercial or fair use of the disputed domain name under Policy ¶¶ 4(c)(i) and 4(c)(iii), respectively. See Compania Mexicana de Aviacion, S.A. de C.V. v. Bigfoot Ventures LLC, FA 1195961 (Nat. Arb. Forum July 14, 2008) (holding that the respondent had not demonstrated a bona fide offering of goods or services or a legitimate noncommercial or fair use when “the website resolving from the disputed domain name displays links to travel products and services, which directly compete with Complainant’s business”).
Complainant has proved this element.
Complainant contends that Respondent has registered and is using the disputed domain name in bad faith under Policy ¶ 4(a)(iii). Complainant states that Respondent uses the disputed domain name to redirect Internet users to Complainant’s competitors. Generally, panels have considered such behavior as indicative of bad faith under Policy ¶ 4(b)(iii). See Univ. of Texas Sys. v. Smith, FA 1195696 (Nat. Arb. Forum July 7, 2008) (finding that using the resolving website to divert Internet users to the complainant’s competitors constituted bad faith registration and use under Policy ¶ 4(b)(iii)). Therefore, the Panel finds that Respondent has acted in bad faith under Policy ¶ 4(b)(iii).
Complainant argues that Respondent is likely profiting through the redirection of Internet users to Complainant’s competitors. Complainant argues that such behavior constitutes bad faith under Policy ¶ 4(b)(iv). The Panel agrees and therefore finds that Respondent has acted in bad faith under 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).
Complainant argues that Respondent’s typosquatting behavior is further evidence of Respondent’s bad faith under Policy ¶ 4(a)(iii). Complainant argues that Respondent’s disputed domain name is identical to Complainant’s mark, and the only addition to the mark in the disputed domain name is the common web prefix “www”. Complainant claims that such a change is insignificant and is likely intended to capitalize on Internet users’ mistakes. The Panel agrees with Complainant’s argument and finds that Respondent has typosquatted in bad faith under Policy ¶ 4(a)(iii). See Diners Club Int’l Ltd. v. Domain Admin******It's all in the name******, FA 156839 (Nat. Arb. Forum June 23, 2003) (“Registering a domain name which entirely incorporates a famous mark with the addition of the “www” prefix evidences not only actual knowledge of a trademark holder’s rights in that mark but an intent to ensnare Internet users who forget to type the period between the “www” and a second-level domain name while attempting to reach Complainant’s URL.”).
Complainant has proved this element.
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is ORDERED that the <wwwaffordabledentures.com> domain name be TRANSFERRED from Respondent to Complainant.
__________________________________________________________________
Hon. Karl V. Fink (Ret.), Panelist
Dated: December 7, 2015
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