All Enthusiast, Inc. v. Chris Liu a/k/a GlobeLogic
Claim Number: FA0206000114684
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.
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.
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 firstname.lastname@example.org 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.
Complainant requests that the domain name be transferred from Respondent to 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.
Respondent failed to submit a Response in this proceeding.
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.
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.
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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