Gregory A. Pearson v. Right Mobile Inc. c/o Domain Manager
Claim Number: FA0707001045815
Complainant is Gregory A. Pearson (“Complainant”), represented by Joseph
J. Weissman, of Johnson, Pope, Bokor, Ruppel & Burns,
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <hotrussainbrides.com>, registered with Enom, 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.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On July 31, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of August 20, 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.
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 <hotrussainbrides.com> domain name is confusingly similar to Complainant’s HOT RUSSIAN BRIDES mark.
2. Respondent does not have any rights or legitimate interests in the <hotrussainbrides.com> domain name.
3. Respondent registered and used the <hotrussainbrides.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Gregory A.
Pearson, owns Romantic Tours, a
Respondent registered the <hotrussainbrides.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.
The Panel finds that Complainant has established rights in the HOT RUSSIAN BRIDES mark through virtue of its trademark registration with the USPTO. See VICORP Rests., Inc. v. Triantafillos, FA 485933 (Nat. Arb. Forum July 14, 2005) (“Complainant has established rights in the BAKERS SQUARE mark by registering it with the United States Patent and Trademark Office (“USPTO”).”); see also Ameridream, Inc. v. Russell, FA 677782 (Nat. Arb. Forum May 24, 2006) (holding that with the complainant’s registration of the AMERIDREAM mark with the USPTO, the complainant had established rights in the mark pursuant to Policy ¶ 4(a)(i)).
Further, the Panel finds that Complainant’s rights in the HOT RUSSIAN BRIDES mark date back to the filing date of the application with the USPTO. See Thompson v. Zimmer, FA 190625 (Nat. Arb. Forum Oct. 27, 2003) (“As Complainant’s trademark application was subsequently approved by the U.S. Patent and Trademark Office, the relevant date for showing ‘rights’ in the mark for the purposes of Policy ¶ 4(a)(i) dates back to Complainant’s filing date.”); see also Planetary Soc’y v. Rosillo, D2001-1228 (WIPO Feb. 12, 2002) (holding that the effective date of Complainant’s trademark rights date back to the application’s filing date).
The Panel finds that the <hotrussainbrides.com> domain name is confusingly similar to Complainant’s HOT RUSSIAN BRIDES mark, as the disputed domain name contains a misspelled version of Complainant’s mark, reversing the letters “i” and “a” in the mark, and adding the generic top-level domain (“gTLD”) “.com.” These minor variations are insufficient to distinguish the disputed domain name from Complainant’s mark under Policy ¶ 4(a)(i). See Google Inc. v. Jon G., FA 106084 (Nat. Arb. Forum Apr. 26, 2002) (finding <googel.com> to be confusingly similar to the complainant’s GOOGLE mark and noting that “[t]he transposition of two letters does not create a distinct mark capable of overcoming a claim of confusing similarity, as the result reflects a very probable typographical error”); see also Pier 1 Imps., Inc. v. Success Work, D2001-0419 (WIPO May 16, 2001) (finding that the domain name <peir1.com> is confusingly similar to the complainant's PIER 1 mark); see also 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).
The Panel finds Policy ¶ 4(a)(i) has been satisfied.
Complainant must establish a prima facie case that Respondent lacks rights and legitimate
interests in the <hotrussainbrides.com>
domain name. Once
Complainant makes this case, the burden shifts to Respondent to put forth
evidence to this effect. The
Panel finds that Complainant has successfully discharged its burden under
Policy ¶ 4(a)(i), and has shifted the burden to
Respondent. See Do The Hustle, LLC v.
Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (holding that, where the
complainant has asserted that the respondent has no rights or legitimate
interests with respect to the domain name, it is incumbent on the respondent to
come forward with concrete evidence rebutting this assertion because this
information is “uniquely within the knowledge and control of the respondent”); see also G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum
The Panel finds that there is no evidence, either in the WHOIS information or otherwise, indicating that Respondent is or has ever been commonly known by the <hotrussainbrides.com> domain name. Moreover, there is no indication that Respondent has ever been authorized to use Complainant’s mark in any way. The Panel thus finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See RMO, Inc. v. Burbridge, FA 96949 (Nat. Arb. Forum May 16, 2001) (interpreting Policy ¶ 4(c)(ii) "to require a showing that one has been commonly known by the domain name prior to registration of the domain name to prevail"); see also 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).
Respondent’s use of the disputed domain name to display hyperlinks and pop-up advertisements to adult-oriented content does not qualify as a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See Target Brands, Inc. v. Bealo Group S.A., FA 128684 (Nat. Arb. Forum Dec. 17, 2002) (finding that use of the <targetstore.net> domain name to redirect Internet users to an adult-oriented website did not equate to a bona fide offering of goods or services under Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use of a domain name under Policy ¶ 4(c)(iii)); see also Vivendi Universal Games v. Chang, FA 206328 (Nat. Arb. Forum Dec. 17, 2003) (finding that the respondent did not use a domain name in connection with a bona fide offering of goods or services nor a legitimate noncommercial or fair use because the respondent used the domain name to divert Internet users seeking the complainant's goods or services to adult-oriented material and links, while presumably earning a commission or referral fees from advertisers).
Moreover, the <hotrussainbrides.com>
domain name is a typosquatted version of Complainant’s HOT RUSSIAN BRIDES mark,
as it reverses the letters “i” and “a” in the middle of the mark. The very nature of the disputed domain name
thus indicates that Respondent lacks rights and legitimate interests 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 LTD
Commodities LLC v. Party Night, Inc., FA 165155 (Nat.
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Respondent is using the <hotrussainbrides.com>
domain name to display hyperlinks and pop-up advertisements that resolve to
adult-oriented material, presumably for Respondent’s own commercial gain
through the accrual of click-through fees.
The Panel finds that there is a likelihood of confusion possible between
Complainant’s mark and Respondent’s disputed domain name and corresponding
website due to the confusingly similar nature of the disputed domain name, and
thus find evidence of bad faith registration and use under Policy ¶ 4(b)(iv). See State
The disputed domain name takes advantage of a common typing error by reversing two letters in the mark, the Panel finds that the typosquatted nature of the <hotrussainbrides.com> domain name further indicates bad faith registration and use under Policy ¶ 4(a)(iii). See Zone Labs, Inc. v. Zuccarini, FA 190613 (Nat. Arb. Forum Oct. 15, 2003) (“Respondent’s registration and use of [the <zonelarm.com> domain name] that capitalizes on the typographical error of an Internet user is considered typosquatting. Typosquatting, itself is evidence of bad faith registration and use pursuant to Policy ¶ 4(a)(iii).”); see also Dermalogica, Inc. v. Domains to Develop, FA 175201 (Nat. Arb. Forum Sept. 22, 2003) (finding that the <dermatalogica.com> domain name was a “simple misspelling” of the complainant's DERMALOGICA mark which indicated typosquatting and bad faith pursuant to Policy 4 ¶ (a)(iii)).
Finally, the adult-oriented nature of the hyperlinks and pop-up advertisements on the website that results from the <hotrussainbrides.com> domain name further indicates that the disputed domain name was registered and is being used in bad faith under Policy ¶ 4(a)(iii). See Wells Fargo & Co. v. Party Night Inc., FA 144647 (Nat. Arb. Forum Mar. 18, 2003) (finding that the respondent’s tarnishing use of the disputed domain names to redirect Internet users to adult-oriented websites was evidence that the domain names were being used in bad faith); see also Geocities v. Geociites.com, D2000-0326 (WIPO June 19, 2000) (finding bad faith where the respondent linked the domain name in question to websites displaying banner advertisements and adult-oriented material).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <hotrussainbrides.com> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: September 7, 2007
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