Ameridebt Inc v. Web Solutions
Claim Number: FA0111000102180
Complainant is Ameridebt, Inc., Germantown, MD (“Complainant”) represented by Julian Spirer, of Spirer and Goldberg. Respondent is Web Solutions, Victor, NY (“Respondent”).
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <ameridebit.com> and <ameridept.com>, registered with Intercosmos Media Group, Inc.
The undersigned certifies that she has acted independently and impartially and that to the best of her knowledge she has no known conflict in serving as Panelist in this proceeding. Hon. Carolyn Marks Johnson sits as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum (the “Forum”) electronically on November 15, 2001; the Forum received a hard copy of the Complaint on November 15, 2001.
On November 15, 2001, Intercosmos Media Group, Inc. confirmed by e-mail to the Forum that the domain names <ameridebit.com> and <ameridept.com> are registered with Intercosmos Media Group, Inc. and that Respondent is the current registrant of the names. Intercosmos Media Group, Inc. has verified that Respondent is bound by the Intercosmos Media Group, 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 and email@example.com 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 21, 2001, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the Forum appointed Hon. Carolyn Marks Johnson 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 names be transferred from Respondent to Complainant.
A. Complainant alleges the following:
The disputed domain names <ameridebit.com> and <ameridept.com> are confusingly similar to Complainant’s registered AMERIDEBT mark. Respondent has no rights or legitimate interests in respect of the disputed domain names. Respondent registered and has used the domain names in bad faith.
B. Respondent did not submit a Response in this proceeding.
Complainant is in the business of providing credit counseling and debt management services to consumers. Complainant has used its <ameridebt.com> domain name and AMERIDEBT service mark in association with its credit and debt management services since August 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 both of the disputed domain names June 19, 2001. Both domain names redirect users to another site, <loancalculator.com>, which offers debt management and credit counseling services in competition with Complainant.
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.
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;
(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 AMERIDEBT mark through registration with the U.S. Patent and Trademark Office. The disputed domain names <ameridebit.com> and <ameridept.com> are confusingly similar to the AMERIDEBT mark.
The addition of the letter “i” in <ameridebit.com> does not defeat the confusing similarity between the domain name and Complainant’s mark. See America Online, Inc. v. Avrasya Yayincilik Danismanlik Ltd., FA 93679 (Nat. Arb. Forum Mar. 16, 2000) (finding that Respondent’s domain name, <americanonline.com>, is confusingly similar to the Complainant’s AMERICA ONLINE mark); see also Blue Cross & Blue Shield Ass’n v. InterActive Communications, Inc., D2000-0788 (WIPO Aug. 28, 2000) (finding that a domain name which merely adds the letter ‘s’ to Complainant’s mark is sufficiently similar to the mark to cause a likelihood of confusion among the users of the Complainant’s services and those who were to view a web site provided by the Respondent accessed through the contested domain name).
Similarly, the replacement of the letter “b” with the letter “p” in the <ameridept.com> domain name is insufficient to defeat a claim of confusing similarity. See Oxygen Media, LLC v. Primary Source, D2000-0362 (WIPO June 19, 2000) (finding that the domain name <0xygen.com>, with a zero in place of the letter “O,” “appears calculated to trade on Complainant’s name by exploiting likely mistakes by users when entering the URL address”). Furthermore, <ameridebit.com> and <ameridept.com> are phonetically similar to AMERIDEBT. See YAHOO! Inc. v. Murray, D2000-1013 (WIPO Nov. 17, 2000) (finding that the domain name <yawho.com> is confusingly similar to the Complainant’s YAHOO mark).
The addition of “.com” to the variations of Complainant’s mark do nothing to alter a finding of confusing similarity. See Snow Fun, Inc. v. O'Connor, FA 96578 (Nat. Arb. Forum Mar. 8, 2001) (finding that the domain name <termquote.com> is identical to Complainant’s TERMQUOTE mark); see also Pomellato S.p.A v. Tonetti, D2000-0493 (WIPO July 7, 2000) (finding <pomellato.com> identical to Complainant’s mark because the generic top-level domain (gTLD) “.com” after the name POMELLATO is not relevant).
Accordingly, the Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant has established that it has rights to and legitimate interests in the mark that it has legally registered and used in commerce. Because Respondent has not submitted a Response in this matter, the Panel may conclude that Respondent has no rights or legitimate interests in the disputed domain names. 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).
No evidence suggests that Respondent is commonly known by either of the disputed domain names pursuant to Policy ¶ 4(c)(ii) and none shows that Respondent is making any legitimate, noncommercial or fair use of the domain names 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. & D3M Domain Sales, 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 that it may possess); see also Boeing Co. v. Bressi, D2000-1164 (WIPO Oct. 23, 2000) (finding no rights or legitimate interests where Respondent has advanced no basis on which the Panel could conclude that it has a right or legitimate interest in the domain names and no use of the domain names has been established).
Respondent further cannot claim bona fide offering of goods or services within the meaning of Policy ¶ 4(c)(i). Respondent redirects users to a site produced by one of Complainant’s competitors; this is not a bona fide offering of goods or services within the Policy. See Ticketmaster Corp. v. DiscoverNet, Inc., D2001-0252 (WIPO Apr. 9, 2001) (finding no rights or legitimate interests where Respondent generated commercial gain by intentionally and misleadingly diverting users away from the Complainant's site to a competing website).
The Panel concludes that Respondent has no rights or legitimate interests in respect of the disputed domain names; Policy ¶ 4(a)(ii) has therefore been satisfied.
Respondent registered and used the disputed domain names, which were confusingly similar to Complainant’s mark, in order to direct users to a competing website. This constitutes bad faith under the Policy ¶ 4(b)(iv). See 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); see also Busy Body, Inc. v. Fitness Outlet, Inc., D2000-0127 WIPO Apr. 22, 2000) (finding bad faith where the Respondent attempted to attract customers to its website, <efitnesswholesale.com>, and created confusion by offering similar products for sale as the Complainant).
Further, by intentionally registering and using likely misspellings of Complainant’s mark, a practice known as “typosquatting,” Respondent has also demonstrated bad faith. See e.g., Hewlett-Packard Co. v. Zuccarini, FA 94454 (Nat. Arb. Forum May 30, 2000) (awarding <hewlitpackard.com> a misspelling of HEWLETT-PACKARD to Complainant); see also Bama Rags, Inc. v. Zuccarini, FA 94380 (Nat. Arb. Forum May 8, 2000) (awarding <davemathewsband.com> and <davemattewsband.com>, common misspellings of DAVE MATTHEWS BAND to Complainant).
Finally, by registering multiple variations of Complainant’s mark, Respondent has exhibited a pattern of infringement that has also been held to constitute bad faith under Policy ¶ 4(b)(ii). See YAHOO! Inc. v. Syrynx, Inc. & Hamilton, D2000-1675 (WIPO Jan. 30, 2001) (finding bad faith pattern pursuant to Policy ¶ 4(b)(ii) in Respondent's registration of two domain names incorporating Complainant's YAHOO! mark).
The Panel finds that Respondent registered and used the disputed domain names in bad faith, and 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 <ameridebit.com> and <ameridept.com> domain names be transferred from Respondent to Complainant.
Hon. Carolyn Marks Johnson, Panelist
Dated: January 2, 2002.
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