Skype Limited v. SADECEHOSTING.COM Internet Hizmetleri San Tic Ltd Sti c/o Dns Administrator
Claim Number: FA0708001059477
Complainant is Skype Limited (“Complainant”), represented by Don
C. Moody, of Genga & Associates, P.C.,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <freeskypecredits.com>, registered with Direct Information Pvt Ltd d/b/a Publicdomainregis.
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
On August 21, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of September 10, 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@freeskypecredits.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On
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 <freeskypecredits.com> domain name is confusingly similar to Complainant’s SKYPE mark.
2. Respondent does not have any rights or legitimate interests in the <freeskypecredits.com> domain name.
3. Respondent registered and used the <freeskypecredits.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Skype Limited, is
provider of voice and data communications over the Internet through a function
known as “Voice over Internet Protocol” (“VoIP”). Complainant promotes and markets these
services under its SKYPE mark.
Complainant has registered this mark in numerous countries worldwide,
including with the United States Patent and Trademark Office (“USPTO”) (Reg.
No. 3,005,039 issued October 4, 2005) and with the Turkish Trademark Authority
(Reg. No. 2004 02797 – Hizmet, issued December 2, 2004).
Respondent registered the <freeskypecredits.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’s trademark registrations with various trademark authorities, including the USPTO and the Turkish Trademark Authority, sufficiently establish Complainant’s rights in the SKYPE mark under Policy ¶ 4(a)(i). See Vivendi Universal Games v. XBNetVentures Inc., FA 198803 (Nat. Arb. Forum Nov. 11, 2003) (“Complainant's federal trademark registrations establish Complainant's rights in the BLIZZARD mark.”); see also Janus Int’l Holding Co. v. Rademacher, D2002-0201 (WIPO Mar. 5, 2002) ("Panel decisions have held that registration of a mark is prima facie evidence of validity, which creates a rebuttable presumption that the mark is inherently distinctive.").
The Panel finds that the <freeskypecredits.com> domain name is confusingly similar to Complainant’s SKYPE mark under Policy ¶ 4(a)(i) as the disputed domain name contains Complainant’s mark in its entirety and adds the terms “free” and “credits,” as well as the generic top-level domain (“gTLD”) “.com” to the mark. The addition of words which have a relationship to Complainant’s services, as well as a gTLD, do not negate the confusingly similar aspects of the disputed domain name. Accordingly, the <freeskypecredits.com> domain name is confusingly similar under the parameters of Policy ¶ 4(a)(i). See Marriott Int’l, Inc. v. Café au lait, FA 93670, (Nat. Arb. Forum Mar. 13, 2000) (finding that the respondent’s domain name <marriott-hotel.com> is confusingly similar to the complainant’s MARRIOTT mark); see also L.L. Bean, Inc. v. ShopStarNetwork, FA 95404 (Nat. Arb. Forum Sept. 14, 2000) (finding that combining the generic word “shop” with the complainant’s registered mark “llbean” does not circumvent the complainant’s rights in the mark nor avoid the confusing similarity aspect of the ICANN Policy); see also Busy Body, Inc. v. Fitness Outlet Inc., D2000-0127 (WIPO Apr. 22, 2000) ("[T]he 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 . . . .").
The Panel finds that Policy ¶ 4(a)(i) has been
satisfied.
Under Policy ¶ 4(a)(ii), Complainant is required to present a prima facie case that Respondent lacks rights and legitimate interests with regards to the <freeskypecredits.com> domain name. If Complainant satisfies this burden, the burden then shifts to Respondent to demonstrate rights or legitimate interests. The Panel holds that Complainant has successfully met this burden, and will now examine the elements of Policy ¶ 4(c) to determine if Respondent has any rights or legitimate interests in the disputed domain name. See Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (holding that once the complainant asserts that the respondent has no rights or legitimate interests with respect to the domain, the burden shifts to the respondent to provide “concrete evidence that it has rights to or legitimate interests in the domain name at issue”); see also G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum Oct. 1, 2002) (“Because Complainant’s Submission constitutes a prima facie case under the Policy, the burden effectively shifts to Respondent. 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).”).
There is no evidence in the record, including Respondent’s WHOIS information, to suggest that Respondent is commonly known by the <freeskypecredits.com> domain name or that Respondent is authorized in any way to use Complainant’s mark. Thus, the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Gallup, Inc. v. Amish Country Store, FA 96209 (Nat. Arb. Forum Jan. 23, 2001) (finding that the respondent does not have rights in a domain name when the respondent is not known by the mark); see also 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").
Respondent is using the <freeskypecredits.com> domain name to operate a website where free and discounted “credits” for Complainant’s program are advertised. In order to receive or purchase these credits, Internet users must enter their personal information associated with their usage of Complainant’s legitimate website. Thus, the Panel finds evidence that the disputed domain name is being used in connection with a phishing scheme, as Respondent is attempting to acquire personal and financial information from Internet users. Such a use is neither a bona fide offering of goods or services under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See Juno Online Servs., Inc. v. Nelson, FA 241972 (Nat. Arb. Forum Mar. 29, 2004) (finding that using a domain name in a fraudulent scheme to deceive Internet users into providing their credit card and personal information is not a bona fide offering of goods or services nor a legitimate noncommercial or fair use); see also HOPE worldwide, Ltd. v. Jin, FA 320379 (Nat. Arb. Forum Nov. 11, 2004) (finding that a domain name that “is confusingly similar to Complainant’s mark, redirects Internet users to a website that imitates Complainant’s website, and is used to acquire personal information from Complainant’s potential associates fraudulently” does not fall within the parameters of Policy ¶¶ 4(c)(i) or (iii)).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
As discussed above, Respondent is using the <freeskypecredits.com> domain name in
order to gain access to personal and financial information of Internet
users. Such use of the disputed domain
name in connection with a phishing scheme qualifies as bad faith registration
and use under Policy ¶ 4(a)(iii). See
Capital One Fin. Corp. v. Howel, FA 289304 (Nat. Arb. Forum Aug. 11,
2004) (finding bad faith registration and use because the respondent used the
domain name to redirect Internet users to a website that imitated the
complainant’s website and to fraudulently acquire personal information from the
complainant’s clients); see also Juno
Online Servs., Inc. v. Nelson, FA 241972 (Nat. Arb. Forum Mar. 29, 2004)
(“The domain name <billing-juno.com> was registered and used in bad faith
by using the name for fraudulent purposes.”).
Respondent’s use of the disputed domain name is for
Respondent’s own commercial gain through creation of a likelihood of confusion
as to Complainant’s association with the <freeskypecredits.com>
domain name and resulting website. As a
result, the Panel finds bad faith registration and use under Policy ¶ 4(b)(iv). See Drs.
Foster & Smith, Inc. v. Lalli, FA 95284 (Nat. Arb. Forum Aug. 21, 2000)
(finding bad faith where the respondent directed Internet users seeking the
complainant’s site to its own website for commercial gain); see also Perot Sys. Corp. v. Perot.net, FA 95312
(Nat. Arb. Forum Aug. 29, 2000) (finding bad faith where the domain name in
question is obviously connected with the complainant’s well-known marks, thus
creating a likelihood of confusion strictly for commercial gain).
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 relief shall be GRANTED.
Accordingly, it is Ordered that the <freeskypecredits.com> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: September 27, 2007
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