DatingDirect.com Limited v. Cheryl Barclay
Claim Number: FA0801001139908
Complainant is DatingDirect.com Limited (“Complainant”), represented by Adam
Taylor, of Adlex Solicitors,
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <4datingdirect.com>, registered with Direct Information Pvt Ltd d/b/a Publicdomainregistry.com.
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.
James A. Carmody, Esq., as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On January 30, 2008, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of February 19, 2008 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 <4datingdirect.com> domain name is confusingly similar to Complainant’s DATING DIRECT mark.
2. Respondent does not have any rights or legitimate interests in the <4datingdirect.com> domain name.
3. Respondent registered and used the <4datingdirect.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, DatingDirect.com Limited, is a respectable,
international, online dating service for single people looking for serious
friendships and relationships.
Complainant owns several international trademarks, including one with
the United Kingdom Intellectual Property Office for the DATING DIRECT mark (Reg.
No. 2,319,425 issued
Respondent registered the <4datingdirect.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.
Complainant asserts rights in the DATING DIRECT mark through
registration with the United Kingdom Intellectual Property Office pursuant to
Policy ¶ 4(a)(i). See 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."); see
also Men’s Wearhouse, Inc. v. Wick, FA 117861 (Nat. Arb. Forum Sept.
16, 2002) (“Under
Complainant contends Respondent’s <4datingdirect.com> domain name is confusingly similar to Complainant’s DATING DIRECT mark under Policy ¶ 4(a)(i). Respondent’s disputed domain name contains Complainant’s mark in its entirety, adds a generic numeral and adds the generic top-level domain (“gTLD”) “.com.” The Panel holds when a disputed domain name contains a complainant’s mark, the addition of a numeral and the addition of a gTLD are irrelevant in distinguishing a disputed domain name from a mark. See Am. Online, Inc. v. iDomainNames.com, FA 93766 (Nat. Arb. Forum Mar. 24, 2000) (finding that the respondent’s domain name <go2AOL.com> was confusingly similar to the complainant’s AOL mark); see also Oxygen Media, LLC v. Primary Source, D2000-0362 (WIPO June 19, 2000) (finding that the domain name <0xygen.com>, with zero in place of letter “O,” “appears calculated to trade on Complainant’s name by exploiting likely mistake by users when entering the url address”); 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). Therefore, the Panel finds the <4datingdirect.com> domain name is confusingly similar to Complainant’s mark pursuant to Policy ¶ 4(a)(i).
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant contends that Respondent lacks all rights and
legitimate interests in the <4datingdirect.com>
name. Once Complainant makes a prima facie case in support of its
allegations, the burden shifts to Respondent to prove that it has rights or
legitimate interests pursuant to Policy ¶ 4(a)(ii). The Panel finds that in this case Complainant
has established a prima facie
case. See Compagnie Generale des Matieres Nucleaires v.
Greenpeace Int’l, D2001-0376 (WIPO
Due to the failure of Respondent to respond to the
Complaint, the Panel assumes that Respondent lacks rights and legitimate
interests in the disputed domain name. See Desotec
N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO
Complainant contends that Respondent is neither commonly
known by the <4datingdirect.com> domain name, nor licensed to
register domain names using the DATING DIRECT mark. Respondent’s WHOIS information identifies
Respondent as “Cheryl Barclay,” which lacks any defining characteristics
relating it to the disputed domain name.
Therefore, the Panel finds that without any evidence of being commonly
known by the <4datingdirect.com> domain name, Respondent is not
commonly known by the disputed name pursuant to Policy ¶ 4(c)(ii). See
Wells Fargo & Co. v. Onlyne Corp.
Services11, Inc., FA 198969 (Nat. Arb.
Forum Nov. 17, 2003) (“Given the WHOIS contact information for the disputed
domain [name], one can infer that Respondent, Onlyne Corporate Services11, is
not commonly known by the name ‘welsfargo’ in any derivation.”); see also Gallup, Inc. v. Amish Country Store, FA 96209 (Nat. Arb. Forum
Respondent’s <4datingdirect.com> domain name was being used to intentionally divert Internet users to the associated website, where Respondent offered adult relationship services in direct competition with Complainant. The Panel finds that by using a confusingly similar domain name to intentionally divert Internet users to a website in direct competition with Complainant is neither a bona fide offering of goods and services pursuant to Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). See Glaxo Group Ltd. v. WWW Zban, FA 203164 (Nat. Arb. Forum Dec. 1, 2003) (finding that the respondent was not using the domain name within the parameters of Policy ¶ 4(c)(i) or (iii) because the respondent used the domain name to take advantage of the complainant's mark by diverting Internet users to a competing commercial site); see also Gardens Alive, Inc. v. D&S Linx, FA 203126 (Nat. Arb. Forum Nov. 20, 2003) (finding that the respondent used a domain name for commercial benefit by diverting Internet users to a website that sold goods and services similar to those offered by the complainant and thus, was not using the name in connection with a bona fide offering of goods or services nor a legitimate noncommercial or fair use).
Respondent is currently failing to
make an active use of the website that resolves from the disputed domain
name. The Panel finds that this 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 Pharmacia & Upjohn AB v. Romero, D2000-1273 (WIPO
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Respondent’s use of the <4datingdirect.com>
to offer services which directly compete with Complainant is evidence of bad
faith. The Panel finds that a registered
domain name used primarily to disrupt the business prospects of a competitor is
an illustration of bad faith registration and use pursuant to Policy ¶
4(b)(iii). See Puckett,
Individually v. Miller, D2000-0297 (WIPO
Respondent’s use of the <4datingdirect.com> domain name in order to intentionally attract Internet users to its website by creating a strong possiblity of confusion with Complainant’s DATING DIRECT mark and offering services in direct competition to Complainant is further evidence of bad faith. Therefore, pursuant to Policy ¶ 4(b)(iv), the Panel finds such use of the disputed domain name constitutes bad faith registration and use. See Luck's Music Library v. Stellar Artist Mgmt., FA 95650 (Nat. Arb. Forum Oct. 30, 2000) (finding that the respondent engaged in bad faith use and registration by using domain names that were identical or confusingly similar to the complainant’s mark to redirect users to a website that offered services similar to those offered by the complainant); 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).”).
Respondent’s current failure to actively use the disputed domain name is further evidence of Respondent’s registration and use in bad faith under Policy ¶ 4(a)(iii). See Telstra Corp. v. Nuclear Marshmallows, D2000-0003 (WIPO Feb. 18, 2000) (“[I]t is possible, in certain circumstances, for inactivity by the Respondent to amount to the domain name being used in bad faith.”); see also Clerical Med. Inv. Group Ltd. v. Clericalmedical.com, D2000-1228 (WIPO Nov. 28, 2000) (finding that merely holding an infringing domain name without active use can constitute use in bad faith).
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 <4datingdirect.com> domain name be TRANSFERRED from Respondent to Complainant.
James A. Carmody, Esq., Panelist
Dated: March 6, 2008
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