All Enthusiast, Inc. v. Chris Liu a/k/a
GlobeLogic
Claim Number: FA0206000114684
PARTIES
Complainant
is All Enthusiast, Inc., Dallas, TX
(“Complainant”) represented by Scott
Wainner. Respondent is Chris Liu a/k/a GlobeLogic, Mountlake
Terrace, WA (“Respondent”).
REGISTRAR AND DISPUTED DOMAIN NAME
The
domain name at issue is <resellerrating.com>,
registered with Bulkregister.com.
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.
Hon.
Ralph Yachnin as Panelist.
PROCEDURAL HISTORY
Complainant
submitted a Complaint to the National Arbitration Forum (the “Forum”)
electronically on June 25, 2002; the Forum received a hard copy of the
Complaint on June 25, 2002.
On
June 25, 2002, Bulkregister.com confirmed by e-mail to the Forum that the
domain name <resellerrating.com>
is registered with Bulkregister.com and that Respondent is the current
registrant of the name. Bulkregister.com
has verified that Respondent is bound by the Bulkregister.com 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
June 25, 2002, a Notification of Complaint and Commencement of Administrative
Proceeding (the “Commencement Notification”), setting a deadline of July 15,
2002 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@resellerrating.com by e-mail.
Having
received no Response from Respondent, using the same contact details and
methods as were used for the Commencement Notification, the Forum transmitted
to the parties a Notification of Respondent Default.
On
July 17, 2002 pursuant to Complainant’s request to have the dispute decided by
a single-member Panel, the Forum appointed Hon. Ralph Yachnin as Panelist.
Having
reviewed the communications records, the Administrative Panel (the “Panel”)
finds that the 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 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
The
<resellerrating.com> domain name is confusingly similar to
Complainant’s RESELLERRATINGS.COM mark.
Respondent
has no rights or legitimate interests in the <resellerrating.com>
domain name.
Respondent
registered and used the <resellerrating.com> domain name in bad
faith.
B.
Respondent
Respondent failed to submit a Response in
this proceeding.
FINDINGS
Since 1998, the RESELLERRATINGS.COM mark
has been used in commerce to identify a website that allows customers of online
businesses to submit ratings and reviews of these businesses for display,
which, in turn, provides market data to online businesses based upon customer
surveys. Complainant obtained the
rights to the RESELLERRATINGS.COM mark and associated website business in March
2002.
Complainant’s RESELLERRATINGS.COM
business has 63,000 registered users who have reviewed over 2,400
companies. Complainant claims that the
RESELLERRATINGS.COM mark has become well-known for providing a unique service
of assessing businesses for consumers. Complainant contends that the
RESELLLERRATINGS.COM mark has developed into a valuable source identifier.
Complainant filed a United States
Trademark application (serial number 78/119864) for the RESELLERRATINGS.COM
mark on April 5, 2002.
Respondent registered the <resellerrating.com>
domain name on March 12, 2001.
Respondent first used the domain name for a website that was nearly
identical to Complainant’s Internet business ranking website. Subsequent to learning of Complainant’s
dissatisfaction with Respondent’s activities, Respondent altered the use of the
domain name and linked it to <topclicks.net>. Respondent attached “pop-up” advertisements to the
<topclicks.net> website, which Respondent presumably profited from.
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 the 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.
Paragraph
4(a) of the Policy requires that the 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 the Respondent is identical or confusingly
similar to a trademark or service mark in which the Complainant has rights; and
(2)
the 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
RESELLERRATINGS.COM mark through continuous use in commerce since 1998. Complainant declares, without contest, that
Internet consumers associate the RESELLERRATINGS.COM mark with Complainant’s
unique services. Furthermore,
Complainant has filed for trademark protection with the United States Patent
and Trademark Office for the RESELLERRATINGS.COM mark, which is further evidence
of Complainant’s rights and interests in the mark. See SeekAmerica
Networks Inc. v. Masood, D2000-0131 (WIPO Apr. 13, 2000) (finding that the
Rules do not require that the Complainant's trademark or service mark be
registered by a government authority or agency for such rights to exist. Rights in the mark can be established by pending
trademark applications); see also British Broad. Corp. v.
Renteria, D2000-0050 (WIPO Mar. 23, 2000) (noting that the UDRP “does not
distinguish between registered and unregistered trademarks and service marks in
the context of abusive registration of domain names” and applying the UDRP to
“unregistered trademarks and service marks”); see also Tuxedos By Rose v. Nunez, FA 95248 (Nat.
Arb. Forum Aug. 17, 2000) (finding common law rights in a mark where its use
was continuous and ongoing, and secondary meaning was established).
Respondent’s <resellerrating.com>
domain name is virtually a carbon copy of Complainant’s RESELLERRATINGS.COM
mark absent the “s” before the generic top level domain “.com” suffix. Altering a mark used in a domain name by
omitting an “s” is a common practice of typosquatting. Respondent’s domain name is confusingly
similar to Complainant’s mark, as the domain name takes advantage of a
potential consumer typing error. See
Universal City Studios, Inc. v.
HarperStephens, D2000-0716 (WIPO Sept. 5, 2000) (finding that deleting the
letter “s” from the Complainant’s UNIVERSAL STUDIOS STORE mark did not change
the overall impression of the mark and thus made the disputed domain name
confusingly similar to it); see also American Airlines Inc. v. Data Art Corp., FA 94908 (Nat. Arb. Forum July 11, 2000)
(finding <americanairline.com> "effectively identical and certainly
confusingly similar" to Complainant's AMERICAN AIRLINES registered marks).
Accordingly, the
Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Rights or Legitimate Interests
In light of Complainant’s assertion that
Respondent has no rights or legitimate interests in the <resellerrating.com>
domain name and Respondent’s failure to respond, it is presumed that Respondent
has no such rights in the domain name. See
Pavillion Agency, Inc. v. Greenhouse
Agency Ltd., D2000-1221 (WIPO Dec. 4, 2000) (finding that Respondents’
failure to respond can be construed as an admission that they have no
legitimate interest in the domain names).
Furthermore, in the absence of a Response, the Panel may make all
reasonable inferences in favor of Complainant.
See Vertical Solutions
Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31,
2000) (failure to respond allows all reasonable inferences of fact in the
allegations of Complainant to be deemed true).
Respondent initially used the <resellerrating.com>
domain name in connection with a website that offered services identical to
Complainant’s online business rating services. At this website, Respondent used Complainant’s
RESELLERRATINGS.COM graphic logo with the letter “s” digitally removed. Respondent transformed its use of the domain
name following notification by Complainant that Respondent was infringing on
Complainant’s rights. Respondent next
used the domain name to link to a website located at <topclicks.net>,
which is owned by Respondent and operates as a website that advertises links to
other websites. From the evidence
presented it is clear that Respondent was attempting to profit from the domain
name that takes advantage of a common spelling error. Therefore, Respondent’s <resellerrating.com> domain
name is not used in connection with a bona fide offering of goods or services
pursuant to Policy ¶ 4(c)(i), nor is it used for a noncommercial or fair use
pursuant to Policy ¶ 4(c)(iii). See
Vapor Blast Mfg. Co. v. R & S Tech.,
Inc., FA 96577 (Nat. Arb. Forum Feb. 27, 2001) (finding that Respondent’s
commercial use of the domain name to confuse and divert Internet traffic is not
a legitimate use of the domain name); see also N. Coast Med., Inc. v. Allegro Med., FA 95541 (Nat. Arb. Forum Oct.
2, 2000) (finding no bona fide use where Respondent used the domain name to
divert Internet users to its competing website); see also Toronto-Dominion Bank v. Karpachev, 188 F.Supp.2d 110, 114 (D. Mass. 2002) (finding
that, because the Respondent's sole purpose in selecting the domain names was
to cause confusion with the Complainant's website and marks, it's use of the
names was not in connection with the offering of goods or services or any other
fair use).
Complainant never authorized
Respondent to use the RESELLERRATINGS.COM mark for any reason. There is no evidence on the record that shows
Respondent is commonly known by the RESELLERRATING moniker or the <resellerrating.com>
domain name. Therefore, Respondent has
no rights or legitimate interests in the domain name pursuant to Policy ¶
4(c)(ii). See Gallup
Inc. v. Amish Country Store,
FA 96209 (Nat. Arb. Forum Jan. 23, 2001) (finding that Respondent does not have
rights in a domain name when Respondent is not known by the mark); see also
Broadcom Corp. v. Intellifone Corp.,
FA 96356 (Nat. Arb. Forum Feb. 5, 2001) (finding no rights or legitimate
interests because Respondent is not commonly known by the disputed domain name
or using the domain name in connection with a legitimate or fair use).
Accordingly, the Panel finds that
Respondent has no rights or legitimate interests in the <resellerrating.com>
domain name; thus, Policy ¶ 4(a)(ii) has been satisfied.
Registration and Use in Bad Faith
Respondent’s domain name, which
capitalizes on a common typing error, was registered and used in bad faith
under Policy ¶ 4(b)(iv). Respondent
attempted to capitalize on the goodwill associated with Complainant’s
RESELLERRATINGS.COM mark by using its registered <resellerating.com>
domain name for the same business objective in which Complainant established
rights in the mark. After learning of
Complainant’s disapproval of the use, Respondent linked the domain name to its
<topclicks.net> website, which profits off of “pop-up” advertisements.
Respondent’s diversionary use of the domain name, which is substantially
similar to Complainant’s mark, is likely to confuse consumers as to the source,
affiliation, or sponsorship of the website that <resellerrating.com>
links to. Hence, Respondent’s
infringing behavior warrants a finding of bad faith use and registration
pursuant to Policy ¶ 4(b)(iv). See
State Fair of Texas v. Granbury.com,
FA 95288 (Nat. Arb. Forum Sept. 12, 2000) (finding bad faith where Respondent
registered the domain name <bigtex.net> to infringe on Complainant’s
goodwill and attract Internet users to Respondent’s website); see also Am. Online, Inc. v. Tencent Comm. Corp.,
FA 93668 (Nat. Arb. Forum Mar. 21, 2000) (finding bad faith where Respondent
registered and used an infringing domain name to attract users to a website
sponsored by Respondent); see also Bama
Rags, Inc. v. Zuccarini, FA 94380 (Nat. Arb. Forum May 8, 2000) (finding
bad faith where the Respondent attracted users to advertisements).
The Panel finds that Policy ¶ 4(a)(iii)
has been satisfied.
DECISION
Having established all three elements
required under the ICANN Policy, the Panel concludes that the requested relief
shall be hereby GRANTED.
Accordingly, it is Ordered that the
domain name <resellerrating.com> be TRANSFERRED from
Respondent to Complainant.
Hon. Ralph Yachnin, Panelist
Justice, Supreme Court, NY (Ret.)
Dated: July 18, 2002
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