Spark Networks PLC v. Jay Wallshein
Claim Number: FA0707001032203
Complainant is Spark Networks PLC (“Complainant”), represented by Victor
T. Fu, of Richardson & Patel LLP,
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <jdate.tv>, registered with GoDaddy.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.
The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on July 12, 2007; the National Arbitration Forum received a hard copy of the Complaint on July 13, 2007.
On July 13, 2007, GoDaddy.com, Inc. confirmed by e-mail to the National Arbitration Forum that the <jdate.tv> domain name is registered with GoDaddy.com, Inc. and that Respondent is the current registrant of the name. GoDaddy.com, Inc. has verified that Respondent is bound by the GoDaddy.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 July 18, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of August 7, 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 email@example.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On August 10, 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 <jdate.tv> domain name is identical to Complainant’s JDATE mark.
2. Respondent does not have any rights or legitimate interests in the <jdate.tv> domain name.
3. Respondent registered and used the <jdate.tv> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant has continuously used the JDATE mark in
connection with online personals and dating services, namely providing the web
site <jdate.com>. Complainant has
registered its JDATE mark in numerous jurisdictions worldwide, including in the
Respondent’s <jdate.tv> domain name was registered on December 5, 2004. The disputed domain name resolves to a parked web page featuring advertisements, a commercial search engine and sponsored links to both Complainant’s website and other third party websites, some of which provide services similar to those offered under Complainant’s JDATE 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 sufficiently established its rights in the
JDATE mark pursuant to Policy ¶ 4(a)(i) through
registration with the USPTO. See
Respondent’s <jdate.tv> domain name differs only from Complainant’s JDATE mark by the addition of a country code top level domain (“ccTLD”). It is well-established that a ccTLD is irrelevant to a Policy ¶ 4(a)(i) analysis. Accordingly, the Panel finds that Respondent’s disputed domain name is identical to Complainant’s mark pursuant to Policy ¶ 4(a)(i). See World Wrestling Fed'n Entm't, Inc. v. Rapuano, DTV2001-0010 (WIPO May 23, 2001) (“The addition of the country code top level domain (ccTLD) designation <.tv> does not serve to distinguish [the disputed domain] names from the complainant’s marks since ‘.tv’ is a common Internet address identifier that is not specifically associated with Respondent.”); see also Clairol Inc. v. Fux, DTV2001-0006 (WIPO May 7, 2001) (finding that the domain name <clairol.tv> is identical to the complainant’s CLAIROL marks).
The Panel concludes that Complainant has satisfied Policy ¶ 4(a)(i).
Under Policy ¶ 4(a)(ii), Complainant must initially make out
a prima facie case that Respondent
has no rights or legitimate interests in the domain name at issue. See
Inc. v. VeneSign
Respondent has failed to submit a Response to the Complaint. The Panel thus presumes that Respondent has no rights or legitimate interests in the <jdate.tv> domain name, but will still consider all the available evidence with respect to the factors listed in Policy ¶ 4(c) before making this determination. See Am. Express Co. v. Fang Suhendro, FA 129120 (Nat. Arb. Forum Dec. 30, 2002) (“[B]ased on Respondent's failure to respond, it is presumed that Respondent lacks all rights and legitimate interests in the disputed domain name.”); see also G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum Oct. 1, 2002) (“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).”).
Nowhere in the record, including Respondent’s WHOIS information, does it indicate that Respondent is or ever has been commonly known by the <jdate.tv> domain name. Further, Respondent has not sought, nor has Complainant granted, a license or permission to Respondent to use Complainant’s mark in any way. Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii). See Compagnie de Saint Gobain v. Com-Union Corp., D2000-0020 (WIPO Mar. 14, 2000) (finding no rights or legitimate interest where the respondent was not commonly known by the mark and never applied for a license or permission from the complainant to use the trademarked name); see also Charles Jourdan Holding AG v. AAIM, D2000-0403 (WIPO June 27, 2000) (finding no rights or legitimate interests where (1) the respondent is not a licensee of the complainant; (2) the complainant’s prior rights in the domain name precede the respondent’s registration; (3) the respondent is not commonly known by the domain name in question).
Moreover, Respondent’s disputed domain name resolves to a parked webpage featuring advertisements, a commercial search engine and sponsored links to both Complaint’s website and other third-party websites, some of which provide services similar to those offered under Complainant’s JDATE mark. It is presumed that Respondent benefits financially from the use of these sponsored links. The Panel finds thus that Respondent is not using the disputed domain name in connection with a bona fide offering of goods or services or in a legitimate noncommercial or fair way pursuant to Policy ¶ 4(c)(i) and Policy ¶ 4(c)(iii) respectively. See Disney Enters., Inc. v. Dot Stop, FA 145227 (Nat. Arb. Forum Mar. 17, 2003) (finding that the respondent’s diversionary use of the complainant’s mark to attract Internet users to its own website, which contained a series of hyperlinks to unrelated websites, was neither a bona fide offering of goods or services nor a legitimate noncommercial or fair use of the disputed domain names); see also Black & Decker Corp. v. Clinical Evaluations, FA 112629 (Nat. Arb. Forum June 24, 2002) (holding that the respondent’s use of the disputed domain name to redirect Internet users to commercial websites, unrelated to the complainant and presumably with the purpose of earning a commission or pay-per-click referral fee did not evidence rights or legitimate interests in the domain name).
The Panel concludes that Complainant has satisfied Policy ¶ 4(a)(ii).
Respondent is using the <jdate.tv> domain name to display sponsored links to third-party websites, some of which offer personal and dating services that compete with those offered under Complainant’s mark. The Panel therefore finds that Respondent registered and is now using the disputed domain name in bad faith, primarily for the purpose of disrupting Complainant’s business pursuant to Policy ¶ 4(b)(iii). See S. Exposure v. S. Exposure, Inc., FA 94864 (Nat. Arb. Forum July 18, 2000) (finding the respondent acted in bad faith by attracting Internet users to a website that competes with the complainant’s business); see also Puckett, Individually v. Miller, D2000-0297 (WIPO June 12, 2000) (finding that the respondent has diverted business from the complainant to a competitor’s website in violation of Policy ¶ 4(b)(iii)).
Also, since Respondent’s <jdate.tv> domain name is so similar to Complainant’s established JDATE mark and the disputed domain name resolves to a link driven website featuring third-parties which offer services that compete with Complainant’s mark, it is inferred that Respondent is financially benefiting from such use. Consequently, the Panel finds that Respondent has acted in bad faith registration and use pursuant to and Policy ¶ 4(b)(iv). 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 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).
The Panel concludes that 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 <jdate.tv> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: August 20, 2007
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