Ameridebt, Inc. v. Polanski c/o Victor Lashenko
Claim Number: FA0111000102163
Complainant is Ameridebt, Inc., Germantown, MD (“Complainant”) represented by Julian Spirer, of Spirer and Goldberg. Respondent is Polanski c/o Victor Lashenko, Krakow (“Respondent”).
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <ameradebt.com>, registered with BulkRegister.com, 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.
John J. Upchurch as Panelist.
On November 16, 2001, BulkRegister.com, Inc. confirmed by e-mail to the Forum that the domain name <ameradebt.com> is registered with BulkRegister.com, Inc. and that Respondent is the current registrant of the name. BulkRegister.com, Inc. has verified that Respondent is bound by the BulkRegister.com, 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 19, 2001, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of December 10, 2001 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 firstname.lastname@example.org by e-mail.
Having received no Response from Respondent, using the same contact details and methods as were used for the Commencement Notification, the Forum transmitted to the parties a Notification of Respondent Default.
On December , pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the Forum appointed John J. Upchurch 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.” 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 the Respondent to the Complainant.
The disputed domain name is confusingly similar to Complainant's registered service mark AMERIDEBT.
Respondent has no rights or legitimate interests in respect of the disputed domain name.
Respondent registered and has used the domain name in bad faith.
Respondent did not submit a Response in this proceeding.
Complaint is a non-profit organization which primarily assists consumers by providing credit counseling and debt management services. Complainant has used the <ameridebt.com> domain name and AMERIDEBT mark in association with these services since 1998. The AMERIDEBT service mark was registered on the Principal Register of the United States Patent and Trademark Office on November 23, 1999 as Registration No. 2,294,177.
Respondent registered the disputed domain name <ameradebt.com> on August 17, 2000, and has since used the domain name to redirect users to <lowermybills.com> a site offering services in competition with Complainant, as well as to another site offering debt consolidation and credit counseling services.
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 the Complainant's undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules.
Paragraph 4(a) of the Policy requires that the 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 the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;
(2) the 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.
Identical and/or Confusingly Similar
The disputed domain name <ameradebt.com> is confusingly similar to Complainant's registered AMERIDEBT mark as the misspelling of the mark does not distinguish the domain name from the mark. See Victoria’s Secret v. Zuccarini, FA 95762 (Nat. Arb. Forum Nov. 18, 2000) (finding that misspelling words and adding letters on to words does not create a distinct mark but is nevertheless confusingly similar with the Complainant’s marks); see also State Farm Mut. Auto. Ins. Co. v. Try Harder & Co., FA 94730 (Nat. Arb. Forum June 15, 2000) (finding the domain name <statfarm.com> to be confusingly similar to the Complainant’s STATE FARM mark).
The inclusion of ".com" in the domain name does not defeat the confusing similarity between the domain name and the AMERIDEBT mark. 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 Busy Body, Inc. v. Fitness Outlet Inc., D2000-0127 (WIPO Apr. 22, 2000) (finding that the addition of the generic top-level domain (gTLD) name ".com" is "without legal significance since use of a gTLD is required of domain name registrants").
Accordingly, the Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Rights or Legitimate Interests
Because Respondent failed to submit a Response in this proceeding, the Panel may presume that Respondent has no rights or legitimate interests in the disputed domain name. See Pavillion Agency, Inc. v. Greenhouse Agency Ltd., D2000-1221 (WIPO Dec. 4, 2000) (finding that Respondents’ failure to respond can be construed as an admission that they have no legitimate interest in the domain names); see also CMGI, Inc. v. Reyes, D2000-0572 (WIPO Aug. 8, 2000) (finding that Respondent’s failure to produce requested documentation supports a finding for Complainant).
There is no evidence that Respondent is commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii), nor that Respondent is making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers pursuant to Policy ¶ 4(c)(iii). See Canadian Imperial Bank of Commerce v. D3M Virtual Reality Inc., AF-0336 (eResolution Sept. 23, 2000) (finding no rights or legitimate interests where no such right or interest is immediately apparent to the Panel and Respondent has not come forward to suggest any right or interest it may possess).
Further, Respondent's use of a domain name confusingly similar to Complainant's mark in order to offer competing services cannot be construed as a bona fide offering of goods or services under Policy ¶ 4(c)(i). See The Chip Merchant, Inc. v. Blue Star Elec., D2000-0474 (WIPO Aug. 21, 2000) (finding that Respondent’s use of domain names that were confusingly similar to Complainant’s mark in order to sell competing goods was an illegitimate use and not a bona fide offering of goods or services); see also America Online, Inc. v. Fu, D2000-1374 (WIPO Dec. 11, 2000) (finding that “it would be unconscionable to find a bona fide offering of services in a respondent’s operation of web-site using a domain name which is confusingly similar to the complainant’s mark and for the same business”).
The Panel thus finds that Policy ¶ 4(a)(ii) has been satisfied, and that Respondent has no rights or legitimate interests in respect of the disputed domain name.
Registration and Use in Bad Faith
In determining whether a domain name was registered and used in bad faith, pursuant to Policy ¶ 4(a)(iii), the Panel must look at the "totality of circumstances." Twentieth Century Fox Film Corp. v. Risser, FA 93761 (Nat. Arb. Forum May 18, 2000).
By selecting and using a domain name that was confusingly similar to Complainant's mark to direct users to a competing website, Respondent acted in bad faith within the meaning of Policy ¶ 4(b)(iv). See Identigene, Inc. v. Genetest Lab., D2000-1100 (WIPO Nov. 30, 2000) (finding bad faith where Respondent's use of the disputed domain name to resolve to a website where similar services are offered is likely to confuse the user into believing that Complainant is the source of or is sponsoring the services offered at the site); see also TM Acquisition Corp. v. Carroll, FA 97035 (Nat. Arb. Forum May 14, 2001) (finding bad faith where Respondent used the disputed domain name, for commercial gain, to intentionally attract users to a direct competitor of Complainant).
Moreover, the obvious similarity between Complainant's mark and the disputed domain name tends to indicate that Respondent's bad faith intent was to prey on Internet users' occasional typographical mistake in order to attract consumers to its own website. See Bama Rags, Inc. v. Zuccarini, FA 94381 (Nat. Arb. Forum May 8, 2000) (finding that the Respondent’s registration of names of famous people, with slight typographical errors, was evidence of bad faith); see also Kraft Foods (Norway) v. Wide, D2000-0911 (WIPO Sept. 23, 2000) (finding that the fact “that the Respondent chose to register a well known mark to which he has no connections or rights indicates that he was in bad faith when registering the domain name at issue”)
Accordingly, 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 the requested relief should be hereby granted.
Accordingly, it is Ordered that the <ameradebt.com> domain name be transferred from Respondent to Complainant.
John J. Upchurch, Panelist
Dated: December 28, 2001
[LA1] (MZ) - The original complaint was deficient on several grounds… The amended complaint was received November 19, 2001.