LowerMyBills, Inc. v. Tyson Rukash
Claim Number: FA0511000592566
Complainant is LowerMyBills, Inc. (“Complainant”), represented by Sean F. Heneghan, 31 Reading Hill Avenue, Melrose, MA 02176. Respondent is Tyson Rukash (“Respondent”), 12/123 Ocean Street, Kingsford, Sydney, New South Wales 2032, Australia.
REGISTRAR AND DISPUTED DOMAIN
NAMES
The domain names at issue are <lowermybillss.com>, <lowermyibills.com>, <lowermybille.com>, <lowermybillx.com>, <lowermybilsl.com>, <lowermybillc.com>, <l0wermybills.com>, <llwermybills.com>, <lkwermybills.com>, <losermybills.com>, <lowermyblils.com>, <lowermhbills.com> and <oowermybills.com>, registered with Go Daddy Software, Inc.
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.
Terry F. Peppard as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on November 7, 2005; the National Arbitration Forum received a hard copy of the Complaint on November 10, 2005.
On November 8, 2005, Go Daddy Software, Inc. confirmed by e-mail to the National Arbitration Forum that the <lowermybillss.com>, <lowermyibills.com>, <lowermybille.com>, <lowermybillx.com>, <lowermybilsl.com>, <lowermybillc.com>, <l0wermybills.com>, <llwermybills.com>, <lkwermybills.com>, <losermybills.com>, <lowermyblils.com>, <lowermhbills.com> and <oowermybills.com> domain names are registered with Go Daddy Software, Inc. and that Respondent is the current registrant of the names. Go Daddy Software, Inc. has verified that Respondent is bound by the Go Daddy Software, 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 November 17, 2005, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of December 7, 2005 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@lowermybillss.com, postmaster@lowermyibills.com, postmaster@lowermybille.com, postmaster@lowermybillx.com, postmaster@lowermybilsl.com, postmaster@lowermybillc.com, postmaster@l0wermybills.com, postmaster@llwermybills.com, postmaster@lkwermybills.com, postmaster@losermybills.com, postmaster@lowermyblils.com, postmaster@lowermhbills.com and postmaster@oowermybills.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On December 13, 2005, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Terry F. Peppard 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 names be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
Complainant operates an independent online service that provides consumers with a one-stop destination offering cost savings through its relationship with more than 400 business partners across fifteen categories, including consumer lending, auto and health insurance and long distance phone and wireless services.
Complainant is also the owner of the mark LOWERMYBILLS.COM through its registration with the United States Patent and Trademark Office, issued December 18, 2001, and with other trademark authorities in Canada, the United Kingdom and Australia.
Complainant has used its LOWERMYBILLS.COM mark in connection with its business since 2000.
Complainant has been involved in several UDRP proceedings in which panels have rendered decisions favorable to Complainant and recognized Complainant’s rights in the LOWERMYBILLS.COM mark. See LowerMyBills, Inc. v. Theofficiallowermybills, FA560603 (Nat. Arb. Forum Oct. 28, 2005); see also LowerMyBills, Inc. v. DeBitetto, FA 440255 (Nat. Arb. Forum May 6, 2005); see also LowerMyBills, Inc. v. LowerALLmybills.com, FA 440261 (Nat. Arb. Forum Apr. 27, 2005); see also LowerMyBills, Inc. v. Lox Investments, FA 323756 (Nat. Arb. Forum Oct. 22, 2004); see also Lowermybills.com, Inc. v. Dinoia, FA 183728 (Nat. Arb. Forum Oct. 2, 2003).
On October 6, 2004, Respondent registered the following domain names: <lowermybillss.com>, <lowermyibills.com>, <lowermybille.com>, <lowermybillx.com>, <lowermybilsl.com>, <lowermybillc.com>, <l0wermybills.com>, <llwermybills.com>, <lkwermybills.com>, <losermybills.com>, <lowermyblils.com>, <lowermhbills.com> and <oowermybills.com>.
Respondent is using the disputed domain names to redirect Internet users to a search engine website that features links to online consumer services almost identical to and in competition with Complainant’s services.
Those websites feature pop-up advertisements and links to still other commercial sites.
Upon the expiration of the subject domain name registrations, and after receiving from Complainant a cease-and-desist letter, Respondent re-registered the domain names.
Respondent’s domain names are confusingly similar to Complainant’s mark.
Respondent has no rights or legitimate interests in respect of the disputed domain names.
Respondent has registered and is using the same domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding.
(a) the domain names registered by Respondent are confusingly similar to a service mark in which Complainant has rights;
(b) Respondent has no rights or legitimate interests in respect of the disputed domain names; and
(c) the same domain names have been registered and are being used in bad faith.
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); 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 its rights in the LOWERMYBILLS.COM mark through registration with trademark authorities in the United States, the United Kingdom, Canada and Australia. See Janus Int’l Holding Co. v. Rademacher, D2002-0201 (WIPO Mar. 5, 2002): "Panel decisions have held that registration of a mark is prima facie evidence of validity, which creates a rebuttable presumption that the mark is inherently distinctive."; see also Wal-Mart Stores, Inc. v. Stork, D2000-0628 (WIPO Aug. 11, 2000), and KCTS Television Inc. v. Get-on-the-Web Ltd., D2001-0154 (WIPO Apr. 20, 2001).
All of the disputed domain names registered by Respondent are confusingly similar to Complainant’s LOWERMYBILLS.COM mark because they are merely misspelled versions of Complainant’s mark. The Panel therefore finds that the misspelled versions of Complainant’s marks are confusingly similar to Complainant’s mark. See Oxygen Media, LLC v. Primary Source, D2000-0362 (WIPO June 19, 2000) (finding that the domain name <0xygen.com>, with zero in place of letter “O,” “appears calculated to trade on Complainant’s name by exploiting likely mistake by users when entering the url address”); see also Compaq Info. Techs. Group, L.P. v. Seocho, FA 103879 (Nat. Arb. Forum Feb. 25, 2002).
The Panel therefore finds that Policy ¶ 4(a)(i) has been
satisfied.
Complainant asserts that Respondent does not have rights or
legitimate interests in the subject domain names. When a complainant establishes a prima facie case pursuant
to Policy ¶ 4(a)(ii), the burden shifts to the respondent to prove that it has
such rights or interests. Because
Respondent has failed to respond to the Complaint, the Panel infers that
Respondent does not have rights or legitimate interests in the disputed domain
names. See Parfums Christian Dior
v. QTR Corp., D2000-0023 (WIPO Mar. 9, 2000); see also Bank of Am. Corp. v. McCall, FA 135012 (Nat. Arb. Forum Dec. 31, 2002): “Respondent's
failure to respond not only results in its failure to meet its burden, but also
will be viewed as evidence itself that Respondent lacks rights and legitimate
interests in the disputed domain name.”
Moreover, Respondent has not offered any evidence, and there is no proof in the record, indicating that Respondent is commonly known by any of the disputed domain names. For this additional reason, the Panel finds that Respondent has not established rights or legitimate interests in the disputed domain names pursuant to Policy ¶ 4(c)(ii). See Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003); see also G.D. Searle & Co. v. Cimock, FA 126829 (Nat. Arb. Forum Nov. 13, 2003): “Due to the fame of Complainant’s mark there must be strong evidence that Respondent is commonly known by the disputed domain name in order to find that Respondent has rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(c)(ii).”
In addition, there is evidence that Respondent is using the subject domain names to redirect Internet users to a search engine website that features links to online consumer services that compete with Complainant’s services, and that these websites also feature pop-up advertisements and links to other commercial services. The Panel presumes that Respondent receives click-through fees for hosting links to competing websites at the disputed domain names, and therefore finds that Respondent’s use of domain names that are confusingly similar to Complainant’s mark 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 of the domain names pursuant to Policy ¶ 4(c)(iii). See Am. Online, Inc. v. Advanced Membership Servs., Inc., FA 180703 (Nat. Arb. Forum Sept. 26, 2003): “Respondent's registration and use of the <gayaol.com> domain name with the intent to divert Internet users to Respondent's website suggests that Respondent has no rights to or legitimate interests in the disputed domain name pursuant to Policy Paragraph 4(a)(ii).”; see also 24 Hour Fitness USA, Inc. v. 24HourNames.com-Quality Domains For Sale, FA 187429 (Nat. Arb. Forum Sep. 26, 2003).
Accordingly, the Panel finds that Policy ¶ 4(a)(ii) has been
satisfied.
The Panel further finds that Respondent’s practice of registering and using multiple misspelled versions of Complainant’s LOWERMYBILLS.COM mark to take advantage of errors made by Internet users amounts to bad faith typo-squatting pursuant to Policy ¶ 4(a)(iii). See Nat’l Ass’n of Prof’l Baseball League, Inc. v. Zuccarini, D2002-1011 (WIPO Jan. 21, 2003): “Typo squatting … 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. Typo squatting is inherently parasitic and of itself evidence of bad faith.”; see also Dermalogica, Inc. v. Domains to Develop, FA 175201 (Nat. Arb. Forum Sept. 22, 2003).
Furthermore, the Panel finds that Respondent intentionally registered the disputed domain names incorporating Complainant’s registered mark to divert Internet users to a website offering links to third party commercial websites. The Panel thus separately concludes on this basis that such activity is evidence of Respondent’s bad faith registration and use pursuant to Policy ¶ 4(b)(iv). See G.D. Searle & Co. v. Celebrex Drugstore, FA 123933 (Nat. Arb. Forum Nov. 21, 2002); see also Perot Sys. Corp. v. Perot.net, FA 95312 (Nat. Arb. Forum Aug. 29, 2000).
Finally, it is evident that Respondent registered the contested
domain names with actual or constructive knowledge of Complainant’s rights in
the LOWERMYBILLS.COM mark by virtue of Complainant’s prior registration of that
mark with the United States Patent and Trademark Office and other pertinent
authorities. Registration of
confusingly similar domain names despite such actual or constructive knowledge
evidences bad faith registration and use of the domain name pursuant to Policy
¶ 4(a)(iii). See Digi Int’l v. DDI Sys.,
FA 124506 (Nat. Arb. Forum Oct. 24, 2002); see also Orange Glo Int’l v. Blume, FA 118313 (Nat. Arb.
Forum Oct. 4, 2002).
For all of these reasons, the Panel finds that Policy ¶ 4(a)(iii) has been satisfied.
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that the relief requested shall be, and it is hereby, GRANTED.
Accordingly, it is Ordered that the <lowermybillss.com>, <lowermyibills.com>, <lowermybille.com>, <lowermybillx.com>, <lowermybilsl.com>, <lowermybillc.com>, <l0wermybills.com>, <llwermybills.com>, <lkwermybills.com>, <losermybills.com>, <lowermyblils.com>, <lowermhbills.com> and <oowermybills.com> domain names be TRANSFERRED forthwith from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: December 27, 2005
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