Xcentric Ventures, L.L.C. v. Domain Privacy LTD c/o DNS Admin
Claim Number: FA0710001087178
Complainant is Xcentric Ventures, L.L.C. (“Complainant”), represented by Maria
Crimi Speth, 3200 N. Central Avenue, #2000, Phoenix, AZ, 85012. Respondent is Domain Privacy LTD c/o DNS Admin (“Respondent”),
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <rippoffreport.com>, registered with Fabulous.com Pty Ltd.
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 electronically September 28, 2007; the National Arbitration Forum received a hard copy of the Complaint October 1, 2007.
On October 1, 2007, Fabulous.com Pty Ltd. confirmed by e-mail to the National Arbitration Forum that the <rippoffreport.com> domain name is registered with Fabulous.com Pty Ltd. and that Respondent is the current registrant of the name. Fabulous.com Pty Ltd. verified that Respondent is bound by the Fabulous.com Pty Ltd. registration agreement and thereby has agreed to resolve domain-name disputes brought by third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy").
On October 12, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of November 1, 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@rippoffreport.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On November 9, 2007, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Hon. Carolyn Marks Johnson as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration Forum 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. The domain name that Respondent registered, <rippoffreport.com>, is confusingly similar to Complainant’s RIP-OFF REPORT mark.
2. Respondent has no rights to or legitimate interests in the <rippoffreport.com> domain name.
3. Respondent registered and used the <rippoffreport.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Xcentic Ventures, L.L.C., continuously has used the RIP-OFF REPORT mark in connection with providing information in the field of consumer protection through both printed publications and the website that resolves from Complainant’s <ripoffreport.com> domain name. Complainant currently holds a registration of the mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 2,958,949 issued June 7, 2005).
Respondent registered the disputed <rippoffreport.com> domain name July 6, 2005 and it currently resolves to a website that purports to offer consumers reviews of products while actually referring them to paid advertisers’ sites. No other content is shown at this website other than links to third-party websites.
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."
Given 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 will draw such inferences as the Panel 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 Complainant to 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.
Under Policy ¶ 4(a)(i), Complainant
established its rights in the RIP-OFF REPORT mark through registration with the
USPTO. See Innomed
Techs., Inc. v. DRP Servs., FA 221171 (Nat. Arb. Forum Feb. 18,
2004) (“Registration of the NASAL-AIRE mark with the USPTO establishes Complainant's
rights in the mark.”); see also
The
disputed domain name that Respondent registered, <rippoffreport.com>,
contains a misspelling of Complainant’s mark by adding an additional “p” in
between “RIP” and “OFF.” It then also
omits the hyphen between those two words and includes the generic top-level
domain (“gTLD”) “.com.” It is well
established that a common misspelling, the omission of a hyphen and the
inclusion of a gTLD do not distinguish a disputed domain name from a registered
mark. Therefore, the Panel finds that the
disputed <rippoffreport.com>
domain name is confusingly similar to Complainant’s RIP-OFF REPORT mark
pursuant to Policy ¶ 4(a)(i). See 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); see also Nat’l Cable Satellite Corp. v. Black Sun Surf Co., FA 94738 (Nat. Arb. Forum June 19, 2000)
(holding that the domain name <cspan.net>, which omitted the hyphen from
the trademark spelling, C-SPAN, is confusingly similar to the complainant's
mark); see also Reuters Ltd. v. Global Net 2000, Inc.,
D2000-0441 (WIPO July 13, 2000) (finding that a domain name which differs by
only one letter from a trademark has a greater tendency to be confusingly
similar to the trademark where the trademark is highly distinctive).
The Panel finds that Complainant satisfied Policy ¶ 4(a)(i).
Complainant established that it has rights to and legitimate
interests in the doman name contained in its entirety within the disputed
domain name. Complainant alleges that
Respondent has no such rights. Pursuant
to Policy ¶ 4(a)(ii), Complainant must first establish
a prima facie case that Respondent
has no rights or legitimate interests in the disputed domain name. See TotalFinaElf E&P USA,
Inc. v. Farnes, FA 117028 (Nat. Arb. Forum Sept. 16, 2002)
(“In order to bring a claim under the Policy, Complainant must first establish
a prima facie case. Complainant’s [initial burden] is to provide proof
of valid, subsisting rights in a mark that is similar or identical to the
domain name in question.”). The Panel
finds that Complainant has established a prima
facie case and that the burden is thus shifted to Respondent to show that
it does have rights or legitimate interests in the disputed domain name. See 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.”); see also 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”).
Respondent did not respond to the Complaint and the Panel is
entitled to presume that Respondent has no rights or legitimate interests in
the <rippoffreport.com>
domain name. The Panel still considers the factors listed in Policy ¶ 4(c) in
light of all of the available evidence. See 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).”); see also 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.”).
Nowhere in Respondent’s WHOIS information or elsewhere in
the record does it indicate that Respondent is or ever was commonly known by
the disputed domain. Further, nothing
indicates that Respondent ever sought or received permission to use the RIP-OFF
REPORT mark in any way. Absent any
evidence to the contrary, the Panel finds pursuant to Policy ¶ 4(c)(ii) that Respondent is not commonly known by the <rippoffreport.com> domain name. See Tercent Inc. v. Lee Yi,
FA 139720 (Nat. Arb. Forum Feb. 10, 2003) (stating “nothing in
Respondent’s WHOIS information implies that Respondent is ‘commonly known by’
the disputed domain name” as one factor in determining that Policy ¶ 4(c)(ii)
does not apply); 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).
The disputed domain name, <rippoffreport.com>,
resolves to a website purporting to offer consumers reviews of products while
really just referring them to paid advertisers’ websites. The Panel finds that Respondent is
commercially benefiting by attempting to pass itself off as Complainant and is
therefore making neither a bona fide
offering of goods or services pursuant to Policy ¶ 4(c)(i)
nor a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). See Crow v. LOVEARTH.net, FA 203208 (Nat. Arb. Forum Nov. 28, 2003) (“It is neither
a bona fide offerings [sic] of goods or services, nor an example of a
legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i)
& (iii) when the holder of a domain name, confusingly similar to a
registered mark, attempts to profit by passing itself off as Complainant . . .
.”); see also Am. Int’l
Group, Inc. v. Busby, FA 156251 (Nat. Arb. Forum May 30, 2003) (finding
that the respondent attempts to pass itself off as the complainant online,
which is blatant unauthorized use of the complainant’s mark and is evidence
that the respondent has no rights or legitimate interests in the disputed
domain name).
The Panel finds that Complainant satisfied Policy ¶ 4(a)(ii).
Respondent has created a likelihood of confusion with
Complainant’s RIP-OFF REPORT mark by registering and using the confusingly
similar <rippoffreport.com>
domain name for Respondent’s own financial gain. Respondent purportedly offers
consumer reviews of products, but instead Respondent commercially benefits by
referring Internet users to the websites of its paid advertisers. This conduct supports findings that
Respondent registered and is using the disputed domain name in bad faith
pursuant to Policy ¶ 4(b)(iv). See Monsanto Co. v. Decepticons,
FA 101536 (Nat. Arb. Forum Dec. 18, 2001) (finding that the respondent's
use of <monsantos.com> to misrepresent itself as the complainant and
to provide misleading information to the public supported a finding
of bad faith); see also Amazon.com, Inc. v. Shafir, FA 196119 (Nat. Arb. Forum Nov. 10, 2003) (“As Respondent
is using the domain name at issue in direct competition with Complainant, and
giving the impression of being affiliated with or sponsored by Complainant,
this circumstance qualifies as bad faith registration and use of the domain
name pursuant to Policy ¶ 4(b)(iv).”); see
also Kmart v. Khan, FA 127708 (Nat. Arb. Forum Nov. 22, 2002)
(finding that if the respondent profits from its diversionary use of the
complainant's mark when the domain name resolves to commercial websites and the
respondent fails to contest the complaint, it may be concluded that the
respondent is using the domain name in bad faith pursuant to Policy ¶
4(b)(iv)).
Further,
Respondent’s <rippoffreport.com>
domain name, while attempting to pass itself off as
Complainant’s website, is diverting Internet uses from Complainant to its
competing website. The Panel finds that
this also supports additional findings of Respondent’s bad faith pursuant to
Policy ¶ 4(b)(iii).
See Disney Enters., Inc. v. Noel,
FA 198805 (Nat. Arb. Forum Nov. 11, 2003) (“Respondent registered a domain name
confusingly similar to Complainant's mark to divert Internet users to a
competitor's website. It is a reasonable inference that Respondent's purpose of
registration and use was to either disrupt or create confusion for
Complainant's business in bad faith pursuant to Policy ¶¶ 4(b)(iii) [and]
(iv).”); see also EthnicGrocer.com, Inc. v. Latingrocer.com,
FA 94384 (Nat. Arb. Forum July 7, 2000) (finding bad faith where the
respondent’s sites pass users through to the respondent’s competing business).
The Panel finds that Complainant 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 <rippoffreport.com> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Carolyn Marks Johnson, Panelist
Dated: November 20, 2007.
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