Lavalife Inc. f/k/a Interactive Media Group (
Claim Number: FA0706001011427
Complainant is Lavalife Inc. f/k/a Interactive Media Group
(Canada) Limited (“Complainant”), represented
by Candace Lynn Bell, of Kavinoky Cook, LLP, 726 Exchange Street, Suite 800, Buffalo, NY 14210. Respondent is St Kitts Registry (“Respondent”),
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <lavalfe.com>, registered with Moniker Online Services, 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.
Complainant submitted a Complaint to the National Arbitration Forum electronically on June 18, 2007; the National Arbitration Forum received a hard copy of the Complaint on June 19, 2007.
On June 21, 2007, Moniker Online Services, Inc. confirmed by e-mail to the National Arbitration Forum that the <lavalfe.com> domain name is registered with Moniker Online Services, Inc. and that Respondent is the current registrant of the name. Moniker Online Services, Inc. has verified that Respondent is bound by the Moniker Online Services, 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 June 25, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of July 16, 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@lavalfe.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On
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 <lavalfe.com> domain name is confusingly similar to Complainant’s LAVALIFE mark.
2. Respondent does not have any rights or legitimate interests in the <lavalfe.com> domain name.
3. Respondent registered and used the <lavalfe.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Lavalife Inc.
f/k/a Interactive Media Group (
Respondent registered the <lavalfe.com> domain name on
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.
Panels have repeatedly found registration of a mark with a
trademark authority confers upon the registrant rights in the mark sufficient
to satisfy Policy ¶ 4(a)(i). See Expedia, Inc. v. Emmerson, FA 873346 (Nat. Arb. Forum
Feb. 9, 2007) (“Complainant’s trademark registrations with the USPTO adequately
demonstrate its rights in the [EXPEDIA] mark pursuant to Policy ¶ 4(a)(i).”); see also Vivendi Universal Games v.
XBNetVentures Inc., FA 198803 (Nat. Arb. Forum
The <lavalfe.com> domain name differs from Complainant’s LAVALIFE
mark only through the omission of an “i” and the inclusion of the generic
top-level domain “.com.” These nominal
variations do not sufficiently set apart Respondent’s domain name from
Complainant’s LAVALIFE mark and, thus, result in a domain name confusingly
similar to Complainant’s registered mark under Policy ¶ 4(a)(i). See
Compaq Info. Techs. Group,
L.P. v. Seocho, FA 103879 (Nat. Arb.
Forum Feb. 25, 2002) (finding that the domain name <compq.com> is
confusingly similar to the complainant’s COMPAQ mark because the omission of
the letter “a” in the domain name does not significantly change the overall
impression of the mark); see also Guinness UDV N. Am., Inc. v. Dallas Internet Servs.,
D2001-1055 (WIPO Dec. 12, 2001) (finding the <smirnof.com> domain name
confusingly similar to the complainant’s SMIRNOFF mark because merely removing
the letter “f” from the mark was insignificant); see also Nevada State Bank v. Modern Ltd. – Cayman Web
Dev., FA 204063 (Nat. Arb. Forum
Thus, the Panel concludes Complainant has satisfied Policy ¶ 4(a)(i).
As explained by the panel in Compagnie Generale des Matieres Nucleaires v. Greenpeace Int’l, D2001-0376 (WIPO May 14, 2001), “[p]roving that the Respondent has no rights or legitimate interests in respect of the Domain Name requires the Complainant to prove a negative. For the purposes of [Policy ¶ 4(a)(ii)], however, it is sufficient for the Complainant to show a prima facie case and the burden of proof is then shifted on to the shoulders of Respondent. In those circumstances, the common approach is for respondents to seek to bring themselves within one of the examples of paragraph 4(c) or put forward some other reason why they can fairly be said to have a relevant right or legitimate interests in respect of the domain name in question.” Because Complainant has met its initial burden in alleging Respondent’s lack of rights or legitimate interests in the <lavalfe.com> domain name, the Panel will now examine whether Respondent has put forth any evidence demonstrating rights or legitimate interests in the disputed domain name. See F. Hoffman-La Roche AG v. Tomasso Di Salvatore, D2006-1417 (WIPO Feb. 1, 2007) (“Proper analysis of paragraph 4(a)(ii) of the Policy shows that the burden of proof shifts from the Complainant to the Respondent once the Complainant has made out a prima facie case that the Respondent has no rights or interests in the domain names.”).
Respondent has not made an appearance in this
proceeding. In light of Respondent’s
failure to respond, the Panel may infer Respondent holds no rights or
legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii). See American Express Co. v. Fang Suhendro, FA 129120 (Nat. Arb. Forum
The record fails to lend any
support to a determination that Respondent is commonly known by the <lavalfe.com> domain name. The Panel finds Respondent’s WHOIS
information more aptly suggests Respondent is commonly known by “St Kitts
Registry.” See Tercent
Inc. v. Lee Yi, FA 139720 (Nat. Arb.
Forum
Moreover,
Respondent’s use of the <lavalfe.com>
domain name does not a constitute a bona fide offering of goods or
services according to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair
use under Policy ¶ 4(c)(iii). Using the
domain name at issue to redirect Internet users to third parties in direct
competition with Complainant, presumably generating referral fees while users
click through attempting to reach such third party, does not bring Respondent
within the scope of Policy ¶¶ (c)(i) or (ii). See TM
Acquisition Corp. v. Sign Guards, FA 132439 (Nat. Arb. Forum Dec.
31, 2002) (finding that the respondent’s diversionary use of the complainant’s
marks to send Internet users to a website which displayed a series of links,
some of which linked to the complainant’s competitors, was not a bona fide
offering of goods or services); see also
Wells Fargo & Co. v. Lin Shun Shing, FA 205699 (Nat. Arb. Forum Dec. 8, 2003) (finding that
using a domain name to direct Internet traffic to a website featuring pop-up advertisements
and links to various third-party websites 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) because the
registrant presumably receives compensation for each misdirected Internet
user).
Similarly, Respondent’s <lavalfe.com> domain name is, in
essence, Complainant’s LAVALIFE mark with a typographical error—the omission of
an “i.” Taking advantage of common
errors that can occur when a user attempts to reach Complainant in order to
misdirect them away from Complainant, known as typosquatting, is in and of
itself evidence Respondent lacks rights and legitimate interests in the
disputed 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’”); see also Encyclopaedia Britannica, Inc. v. Zuccarini, D2000-0330 (WIPO June
7, 2000) (finding that fair use does not apply where the domain names are
misspellings of the complainant's mark).
The Panel, therefore, concludes Complainant has satisfied Policy ¶ 4(a)(ii).
By connecting Internet users to competing personal relationship and dating service providers through a domain name confusingly similar to Complainant’s LAVALIFE mark, Respondent is purposefully diverting individuals seeking to reach Complainant. Use of the <lavalfe.com> in this manner constitutes bad faith registration and use pursuant to Policy ¶ 4(b)(iii). See Tesco Pers. Fin. Ltd. v. Domain Mgmt. Servs., FA 877982 (Nat. Arb. Forum Feb. 13, 2007) (finding that the respondent registered and used the disputed domain name in bad faith pursuant to Policy ¶ 4(b)(iii) when the disputed domain name resolved to a website that displayed commercial links to the websites of the complainant’s competitors); see also Disney Enters., Inc. v. Noel, FA 198805 (Nat. Arb. Forum Nov. 11, 2003) (“Respondent registered a domain name confusingly similar to Complainant's mark to divert Internet users to a competitor's website. It is a reasonable inference that Respondent's purpose of registration and use was to either disrupt or create confusion for Complainant's business in bad faith pursuant to Policy ¶¶ 4(b)(iii) [and] (iv).”).
Additionally, the Panel infers the resolution of Respondent’s <lavalfe.com> domain name to links of Complainant’s competitors is an attempt by Respondent to commercially benefit from the confusion generated by the strong similarity between the domain name at issue and Complainant’s LAVALIFE mark, further evidencing bad faith registration and use according to Policy ¶ 4(b)(iv). Presumably, click-through fees are generated for Respondent by Internet users who pass through Respondent’s site and sponsored links in their quest to reach the authentic site of Complainant. See Associated Newspapers Ltd. v. Domain Manager, FA 201976 (Nat. Arb. Forum Nov. 19, 2003) (“Respondent's prior use of the <mailonsunday.com> domain name is evidence of bad faith pursuant to Policy ¶ 4(b)(iv) because the domain name provided links to Complainant's competitors and Respondent presumably commercially benefited from the misleading domain name by receiving ‘click-through-fees.’”); see also Luck's Music Library v. Stellar Artist Mgmt., FA 95650 (Nat. Arb. Forum Oct. 30, 2000) (finding that the respondent engaged in bad faith use and registration by using domain names that were identical or confusingly similar to the complainant’s mark to redirect users to a website that offered services similar to those offered by the complainant).
Further, as stated by the panel in Do
The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO
Based on the foregoing, the Panel concludes Complainant has 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 <lavalfe.com> domain name be TRANSFERRED from Respondent to Complainant.
Dated: July 31, 2007
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