national arbitration forum

 

DECISION

 

DatingDirect.com Limited  v. V Venus

Claim Number: FA0708001052606

 

PARTIES

 

Complainant is DatingDirect.com Limited (“Complainant”), represented by Adam Taylor, of Adlex Solicitors, 76A Belsize Lane, London NW3 5BJ, United Kingdom.  Respondent is V Venus (“Respondent”), 47 Spencer Ave, Suite 111, Toronto, ON M6K2K2, CA.

 

REGISTRAR AND DISPUTED DOMAIN NAME

 

The domain name at issue is <moderndatingdirect.com>, registered with Dotster.

 

PANEL

 

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.

 

Bruce E. Meyerson as Panelist.

 

PROCEDURAL HISTORY

 

Complainant submitted a Complaint to the National Arbitration Forum electronically on August 1, 2007; the National Arbitration Forum received a hard copy of the Complaint on August 3, 2007.

 

On August 2, 2007, Dotster confirmed by e-mail to the National Arbitration Forum that the <moderndatingdirect.com> domain name is registered with Dotster and that Respondent is the current registrant of the name.  Dotster has verified that Respondent is bound by the Dotster 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 August 10, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of August 30, 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@moderndatingdirect.com by e-mail.

 

Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.

 

On September 6, 2007, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Bruce E. Meyerson 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.

 

RELIEF SOUGHT

 

Complainant requests that the domain name be transferred from Respondent to Complainant.

 

PARTIES' CONTENTIONS

 

A.  Complainant makes the following assertions:

 

1.      Respondent’s <moderndatingdirect.com> domain name is confusingly similar to Complainant’s DATING DIRECT mark.

 

2.      Respondent does not have any rights or legitimate interests in the <moderndatingdirect.com> domain name.

 

3.      Respondent registered and used the <moderndatingdirect.com> domain name in bad faith.

 

B.  Respondent failed to submit a Response in this proceeding.

 

FINDINGS

 

Complainant, DatingDirect.com Limited, has used the DATING DIRECT mark since 1999 in connection with its international online dating agency.  Complainant has engaged in marketing its mark in print advertising and on the radio.  Complainant also has provided examples of press coverage of its business and membership numbers for its dating services.  Complainant holds a United Kingdom Patent Office (“UKPO”) registration for the DATING DIRECT mark (Reg. No. 2,319,425 registered June 16, 2006).  Complainant operates its dating service from its website at the <datingdirect.com> domain name.

 

Respondent registered the <moderndatingdirect.com> domain name on August 1, 2006.  Respondent is using the disputed domain name to redirect Internet users to its website that features escort dating services offered by “Selina.”

 

DISCUSSION

 

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.

 

Identical and/or Confusingly Similar

 

Complainant has established rights in the DATING DIRECT mark pursuant to Policy ¶ 4(a)(i) through registration of the mark with the UKPO.  See Royal Bank of Scot. Group plc v. TRB, FA 622345 (Nat. Arb. Forum Feb. 22, 2006) (“The Panel accepts Complainant’s registration of the THE ROYAL BANK OF SCOTLAND mark with the United Kingdom Patent Office as evidence of Complainant’s rights in the mark pursuant to Policy ¶ 4(a)(i).”); see also Royal Bank of Scot. Group plc v. Soloviov, FA 787983 (Nat. Arb. Forum Nov. 3, 2006) (“Complainant’s trademark registrations for the NATWEST mark with the United Kingdom Patent Office . . . establish Complainant’s rights in the mark pursuant to Policy ¶4(a)(i).”).

 

Respondent’s <moderndatingdirect.com> domain name is confusingly similar to Complainant’s DATING DIRECT mark.  Respondent’s domain name includes Complainant’s DATING DIRECT mark in its entirety.  The only difference between the disputed domain name and Complainant’s mark is the addition of the term “modern” and the generic top-level domain “.com” to Complainant’s mark.  The additions of the term “modern” and a generic top-level domain to Complainant’s mark are insufficient to distinguish the disputed domain name from Complainant’s mark.  Thus, the Panel finds that the disputed domain name is confusingly similar to Complainant’s mark pursuant to Policy ¶ 4(a)(i).  See Arthur Guinness Son & Co. (Dublin) Ltd. v. Healy/BOSTH, D2001-0026 (WIPO Mar. 23, 2001) (finding confusing similarity where the domain name in dispute contains the identical mark of the complainant combined with a generic word or term); see also Pfizer, Inc. v. Suger, D2002-0187 (WIPO Apr. 24, 2002) (finding that because the subject domain name incorporates the VIAGRA mark in its entirety, and deviates only by the addition of the word “bomb,” the domain name is rendered confusingly similar to the complainant’s mark);  Nevada State Bank v. Modern Ltd. – Cayman Web Dev., FA 204063 (Nat. Arb. Forum Dec. 6, 2003) (“It has been established that the addition of a generic top-level domain is irrelevant when considering whether a domain name is identical or confusingly similar under the Policy.”).

 

The Panel finds that Policy ¶ 4(a)(i) has been satisfied.

 

Rights or Legitimate Interests

 

Complainant claims that Respondent has no rights and legitimate interests in the <moderndatingdirect.com> domain name.  Complainant has the initial burden of proof in establishing that Respondent lacks rights and legitimate interests in the domain name.  Once Complainant makes a prima facie case in support of its allegations, the burden then shifts to Respondent to show it does have rights or legitimate interests pursuant to Policy ¶ 4(a)(ii).  In this case, Complainant has made out a prima facie case under Policy ¶ 4(a)(ii).  See Document Tech., Inc. v. International Elec. Commc’ns Inc., D2000-0270 (WIPO June 6, 2000) (“[O]nce a Complainant makes out a prima facie showing, the burden of production on this factor shifts to the Respondent to rebut the showing by providing concrete evidence that it has rights to or legitimate interests in the Domain Name.”). 

 

Respondent’s failure to answer the Complaint raises a presumption that Respondent has no rights or legitimate interests in the disputed domain name.  See Bank of Am. Corp. v. McCall, FA 135012 (Nat. Arb. Forum Dec. 31, 2002) (“Respondent's failure to respond not only results in its failure to meet its burden, but also will be viewed as evidence itself that Respondent lacks rights and legitimate interests in the disputed domain name.”); see also 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 was immediately apparent to the panel and the respondent did not come forward to suggest any right or interest it may have possessed).  However, the Panel will now examine the record to determine if Respondent has rights or legitimate interests under Policy ¶ 4(c).

 

Complainant has alleged that Respondent is not commonly known by the <moderndatingdirect.com> domain name.  The WHOIS information identifies Respondent as “V Venus,” and no evidence in the record indicates that Respondent is commonly known by the disputed domain name.  Therefore, the Panel concludes that Respondent is not commonly known by the <moderndatingdirect.com> domain name pursuant to Policy ¶ 4(c)(ii).  See Ian Schrager Hotels, L.L.C. v. Taylor, FA 173369 (Nat. Arb. Forum Sept. 25, 2003) (finding without demonstrable evidence to support the assertion that a respondent is commonly known by a domain name, the assertion must be rejected).

 

Respondent is using the <moderndatingdirect.com> domain name to provide escort services offered by “Selina.”  Respondent is attempting to commercially benefit from the goodwill associated with Complainant’s DATING DIRECT mark, and such use of the disputed domain name does not constitute 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 Bank of Am. Corp. v. Northwest Community Access, FA 180704 (Nat. Arb. Forum Sept. 30, 2003) (“Respondent's demonstrated intent to divert Internet users seeking Complainant's website to a website of Respondent and for Respondent's benefit is not a bona fide offering of goods or services under Policy ¶ 4(c)(i) and it is not a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).”); see also G.D. Searle & Co. v. Pelham, FA 117911 (Nat. Arb. Forum Sept. 19, 2002) (finding that because the respondent is using the infringing domain name to sell prescription drugs, the panel could infer that the respondent is using the complainant’s mark to attract Internet users to its website for commercial benefit).

 

The Panel finds that Complainant satisfied Policy ¶ 4(a)(ii).

 

Registration and Use in Bad Faith

 

Respondent’s <moderndatingdirect.com> domain name, which is confusingly similar to Complainant’s DATING DIRECT mark, is likely to cause confusion among customers searching for Complainant’s online dating services.  Specifically, customers may become confused as to the affiliation, endorsement, or sponsorship of the services advertised on Respondent’s website.  Therefore, the Panel finds that Respondent’s registration and use of the <moderndatingdirect.com> domain name constitutes bad faith pursuant to Policy ¶ 4(b)(iv).  See Metropolitan Life Ins. Co. v. Bonds, FA 873143 (Nat. Arb. Forum Feb. 16, 2007) (“The Panel finds such use to constitute bad faith registration and use pursuant to Policy ¶ 4(b)(iv), because Respondent is taking advantage of the confusing similarity between the <metropolitanlife.us> domain name and Complainant’s METLIFE mark in order to profit from the goodwill associated with the mark.”); see also Identigene, Inc. v. Genetest Labs., D2000-1100 (WIPO Nov. 30, 2000) (finding bad faith where the respondent's use of the domain name at issue to resolve to a website where similar services are offered to Internet users is likely to confuse the user into believing that the complainant is the source of or is sponsoring the services offered at the site).

 

The Panel finds that Complainant satisfied Policy ¶ 4(a)(iii).

 

DECISION

 

Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.

 

Accordingly, it is Ordered that the <moderndatingdirect.com> domain name be TRANSFERRED from Respondent to Complainant.

 

 

 

 

Bruce E. Meyerson, Panelist

Dated:  September 19, 2007

 

 

Click Here to return to the main Domain Decisions Page.

 

Click Here to return to our Home Page

 

National Arbitration Forum