Skyhawke Technologies, LLC v. Joe Tentpeg
Claim Number: FA0704000964669
Complainant is Skyhawke Technologies, LLC (“Complainant”), represented by Jordan
S. Weinstein, of Oblon, Spivak, McClelland, Maier & Neustadt,
P.C.,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <wwwskycaddie.com>, registered with Wild West Domains, 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.
The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on April 19, 2007; the National Arbitration Forum received a hard copy of the Complaint on April 20, 2007.
On April 19, 2007, Wild West Domains, Inc. confirmed by e-mail to the National Arbitration Forum that the <wwwskycaddie.com> domain name is registered with Wild West Domains, Inc. and that Respondent is the current registrant of the name. Wild West Domains, Inc. has verified that Respondent is bound by the Wild West Domains, Inc. 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 April 25, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of May 15, 2007 by which Respondent could file a response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent's registration as technical, administrative and billing contacts, and to postmaster@wwwskycaddie.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On May 18, 2007, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed the Honorable Charles K. McCotter, Jr. (Ret.) 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." 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 <wwwskycaddie.com> domain name is confusingly similar to Complainant’s SKYCADDIE mark.
2. Respondent does not have any rights or legitimate interests in the <wwwskycaddie.com> domain name.
3. Respondent registered and used the <wwwskycaddie.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Skyhawke Technologies, LLC, holds a trademark registration with the United States Patent and Trademark Office (“USPTO”) for the SKYCADDIE mark (Reg. No. 2,977,019 issued July 26, 2005). Complainant has used the SKYCADDIE mark for the distribution and sale of electronic satellite tracking and information, including both hardware and software, used to determine distances on golf courses and other relevant course information or statistics. Specifically, Complainant has used the SKYCADDIE mark in connection with the sale of the SKYCADDIE rangefinder, a wireless technology that can download information about golf courses while on the course. For example, the SKYCADDIE rangefinder was used in the New England Pro Golf Tour in 2006 as a yardage-measuring device. Complainant has registered the <skycaddie.com> domain name which redirects internet traffic to the <skygolfgps.com> domain name which offers for sale Complainant’s goods under the SKYCADDIE mark.
Respondent registered the <wwwskycaddie.com> domain name on May 11, 2006. Respondent is using the disputed domain name to redirect Internet users to Respondent’s website which resolves to the <mygolfparty.com> domain name selling tee times and vanity email addresses under the SKYCADDIE 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."
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 has established rights in the SKYCADDIE mark through registration with the USPTO. See Innomed Techs., Inc. v. DRP Servs., FA 221171 (Nat. Arb. Forum Feb. 18, 2004) (“Registration of the NASAL-AIRE mark with the USPTO establishes Complainant's rights in the mark.”); see also Vivendi Universal Games v. XBNetVentures Inc., FA 198803 (Nat. Arb. Forum Nov. 11, 2003) (“Complainant's federal trademark registrations establish Complainant's rights in the BLIZZARD mark.”).
Respondent’s <wwwskycaddie.com> domain name is
confusingly similar to Complainant’s SKYCADDIE mark because it uses
Complainant’s mark in its entirety and merely removes the period after
“www.” The Panel finds that this minor
omission does not alter Complainant’s mark sufficiently to avoid a finding of
confusing similarity under Policy ¶ 4(a)(i). See Marie Claire Album v. Blakely,
D2002-1015 (WIPO Dec. 23, 2002) (holding that the letters "www" are
not distinct in the "Internet world" and thus the respondent 's
<wwwmarieclaire.com> domain name is confusingly similar to the
complainant's MARIE CLAIRE trademark); see also 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
Additionally, Respondent adds the generic top-level domain (“gTLD”) “.com” to Complainant’s mark. Panels have previously held that the addition of a gTLD is irrelevant to the determination of whether a domain name is confusingly similar. See Rollerblade, Inc. v. McCrady, D2000-0429 (WIPO June 25, 2000) (finding that the top level of the domain name such as “.net” or “.com” does not affect the domain name for the purpose of determining whether it is identical or confusingly similar); see also Blue Sky Software Corp. v. Digital Sierra, Inc., D2000-0165 (WIPO Apr. 27, 2000) (holding that the domain name <robohelp.com> is identical to the complainant’s registered ROBOHELP trademark, and that the "addition of .com is not a distinguishing difference").
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant has alleged that Respondent does not have rights or legitimate interests in the <wwwskycaddie.com> domain name. Complainant’s allegation establishes a prima facie case which shifts the burden to Respondent to prove that it has rights or legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii). See G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum Oct. 1, 2002) (“Because Complainant’s Submission constitutes a prima facie case under the Policy, the burden effectively shifts to Respondent. Respondent’s failure to respond means that Respondent has not presented any circumstances that would promote its rights or legitimate interests in the subject domain name under Policy ¶ 4(a)(ii).”); see also Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (holding that once the complainant asserts that the respondent has no rights or legitimate interests with respect to the domain, the burden shifts to the respondent to provide “concrete evidence that it has rights to or legitimate interests in the domain name at issue”).
The Panel assumes Respondent has no rights here because
Respondent has failed to respond to the Complaint. See Parfums Christian Dior v. QTR Corp., D2000-0023 (WIPO Mar. 9, 2000)
(finding that by not submitting a response, the respondent has failed to invoke
any circumstance which could demonstrate any rights or legitimate interests in
the domain name); see also Geocities
v. Geociites.com, D2000-0326 (WIPO June 19, 2000) (finding that the
respondent has no rights or legitimate interests in the domain name because the
respondent never submitted a response or provided the panel with evidence to
suggest otherwise). However, the Panel
will consider all evidence available in determining whether Respondent has
rights or legitimate interests in the mark under Policy ¶ 4(c).
Complainant contends that Respondent is using the <wwwskycaddie.com> domain name to
redirect Internet users seeking Complainant’s goods and services to
Respondent’s website which resolves itself to a third-party website selling tee
times and vanity email addresses. Such
use is for the presumed profit of Respondent.
Respondent’s use of the website to sell tee times and vanity email
addresses is not 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 under Policy ¶ 4(c)(iii). See Bank of Am. Corp. v. Nw. Free Cmty. Access, FA 180704 (Nat. Arb. Forum Sept. 30, 2003) (“Respondent's demonstrated intent
to divert Internet users seeking Complainant's website to a website of
Respondent and for Respondent's benefit is not a bona fide offering of goods or
services under Policy ¶ 4(c)(i) and it is not a
legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).”); see also
Seiko Kabushiki Kaisha v. CS into Tech, FA 198795 (Nat. Arb. Forum Dec. 6,
2003) (“Diverting customers, who are looking for products relating to the
famous SEIKO mark, to a website unrelated to the mark is not a bona fide
offering of goods or services under Policy ¶ 4(c)(i), nor does it represent a
noncommercial or fair use under Policy ¶ 4(c)(iii).”).
Additionally, Respondent has offered no evidence and no evidence is present in the record to indicate that Respondent is commonly known by the <wwwskycaddie.com> domain name. Respondent’s WHOIS information identifies Respondent as “Joe Tentpeg.” Complainant alleges that Respondent reported false information when it registered the disputed domain name. Therefore, the Panel finds that Respondent has failed to establish rights or legitimate interests in the disputed domain name under Policy ¶ 4(c)(ii). See Gallup, Inc. v. Amish Country Store, FA 96209 (Nat. Arb. Forum Jan. 23, 2001) (finding that the respondent does not have rights in a domain name when the respondent is not known by the mark); see also Am. W. Airlines, Inc. v. Paik, FA 206396 (Nat. Arb. Forum Dec. 22, 2003) (“Respondent has registered the domain name under the name ‘Ilyoup Paik a/k/a David Sanders.’ Given the WHOIS domain name registration information, Respondent is not commonly known by the [<awvacations.com>] domain name.”).
Finally, Respondent’s <wwwskycaddie.com> domain name simply omits the period after “www.” The Panel finds that this constitutes typosquatting and is itself evidence that Respondent lacks rights or legitimate interests in the disputed domain name. 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 Medline, Inc. v. Domain Active Pty. Ltd., FA 139718 (Nat. Arb. Forum Feb. 6, 2003) (finding no rights or legitimate interests where the respondent merely redirected the <wwwmedline.com> domain name to the complainant’s own website at <medline.com>).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Respondent has registered and is using the <wwwskycaddie.com> domain name, which is confusingly similar to Complainant’s SKYCADDIE mark, to redirect Internet users to Respondent’s website which resolves itself to a website offering for sale tee times and vanity email addresses. The Panel finds that because Respondent’s website is confusingly similar to Complainant’s SKYCADDIE mark, Internet users may become confused as to Complainant’s affiliation with the website. Presumably, Respondent is profiting from this confusion. Respondent’s use of the <wwwskycaddie.com> domain name to redirect Internet users to a third-party’s website for the profit of Respondent constitutes bad faith registration and use 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 G.D. Searle & Co. v. Celebrex Drugstore, FA 123933 (Nat. Arb. Forum Nov. 21, 2002) (finding that the respondent registered and used the domain name in bad faith pursuant to Policy ¶ 4(b)(iv) because the respondent was using the confusingly similar domain name to attract Internet users to its commercial website); see also Kmart v. Khan, FA 127708 (Nat. Arb. Forum Nov. 22, 2002) (finding that if the respondent profits from its diversionary use of the complainant's mark when the domain name resolves to commercial websites and the respondent fails to contest the complaint, it may be concluded that the respondent is using the domain name in bad faith pursuant to Policy ¶ 4(b)(iv)).
Additionally, Respondent’s <wwwskycaddie.com> domain name capitalizes on a common mistake of Internet users who simply leave out the period after “www.” Respondent’s registration of the disputed domain name constitutes typosquatting and is further evidence of bad faith registration 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,” which was evidence that the domain name was registered and used in bad faith); see also Nat’l Ass’n of Prof’l Baseball League, Inc. v. Zuccarini, D2002-1011 (WIPO Jan. 21, 2003) (“Typosquatting … is the intentional misspelling of words with [the] intent to intercept and siphon off traffic from its intended destination, by preying on Internauts who make common typing errors. Typosquatting is inherently parasitic and of itself evidence of bad faith.”).
The Panel finds that 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 <wwwskycaddie.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: May 30, 2007
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