Reed Elsevier Inc. and Seisint, Inc v. William Vaughan c/o smtm investments ltd
Claim Number: FA0802001153979
Complainant is Reed Elsevier Inc. and Seisint, Inc (collectively,
“Complainant”), represented by Valyncia Simmons, of Fulbright &
Jaworski,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <acccurint.com>, registered with Innerwise, Inc. d/b/a Itsyourdomain.com.
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 March 5, 2008, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of March 25, 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 postmaster@acccurint.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On April 1, 2008,pursuant to C omplainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Sandra J. Franklin as Panelist.
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 <acccurint.com> domain name is confusingly similar to Complainant’s ACCURINT mark.
2. Respondent does not have any rights or legitimate interests in the <acccurint.com> domain name.
3. Respondent registered and used the <acccurint.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Reed Elsevier Inc. and its wholly-owned subsidiary, Seisint,
Inc, collectively Complainant in this proceeding, is a provider of many
services, including individual background information services which are
provided under its ACCURINT mark.
Complainant has used the ACCURINT mark since at least April 2001 and
holds two trademark registrations with the United States Patent and Trademark
Office (“USPTO”) for the mark, the earliest of which is Registration Number
2,624,319 issued on
Respondent registered the <acccurint.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 holds that Complainant’s trademark registrations with the USPTO sufficiently establish Complainant’s rights in the ACCURINT mark for the purposes of Policy ¶ 4(a)(i). See Intel Corp. v. Macare, FA 660685 (Nat. Arb. Forum Apr. 26, 2006) (finding that the complainant had established rights in the PENTIUM, CENTRINO and INTEL INSIDE marks by registering the marks with the USPTO); see also Metro. Life Ins. Co. v. Bonds, FA 873143 (Nat. Arb. Forum Feb. 16, 2007) (finding that a trademark registration adequately demonstrates a complainant’s rights in a mark under Policy ¶ 4(a)(i)).
The <acccurint.com> domain name is confusingly
similar to Complainant’s ACCURINT mark under Policy ¶ 4(a)(i) as the disputed
domain name contains Complainant’s mark in its entirety with the addition of an
extra letter “c” to the mark, as well as a generic top-level domain. The Panel finds that neither the simple
spelling error with Complainant’s mark, nor the addition of a necessary
top-level domain, sufficiently distinguishes the disputed domain name from
Complainant’s mark under Policy ¶ 4(a)(i).
See Marriott Int'l, Inc. v. Seocho, FA 149187 (Nat. Arb. Forum Apr. 28, 2003) (finding that
the respondent's <marrriott.com> domain name was confusingly
similar to the complainant's MARRIOTT mark); see also Jerry Damson, Inc. v.
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Policy ¶ 4(a)(ii) requires
Complainant to demonstrate a prima facie
case that Respondent lacks rights and legitimate interests in the <acccurint.com>
domain name. Once Complainant satisfies
its burden, the burden shifts to Respondent to present evidence that it
possesses rights or legitimate interests in the disputed domain name under
Policy ¶ 4(a)(ii). The Panel, upon
examination of the Complaint, finds that Complainant has satisfied its
burden. Although Respondent has not
replied to the Complaint, and as such the Panel may presume that Respondent
lacks all rights and legitimate interests in the disputed domain name, the
Panel chooses to examine all the evidence with respect to Policy ¶ 4(c) before
making a final determination. See
Document Tech., Inc. v. Int’l Elec. Commc'ns Inc., D2000-0270 (WIPO June 6, 2000) (“Although
Paragraph 4(a) of the Policy requires that the Complainant prove the presence
of this element (along with the other two), once a Complainant makes out a prima
facie showing, the burden of production on this factor shifts to the
Respondent to rebut the showing by providing concrete evidence that it has
rights to or legitimate interests in the Domain Name.”); see also Desotec N.V. v. Jacobi Carbons AB, D2000-1398
(WIPO Dec. 21, 2000) (finding that failing to respond allows a presumption that
the complainant’s allegations are true unless clearly contradicted by the
evidence).
Respondent’s WHOIS information
indicates that Respondent is “William Vaughan
c/o smtm investments ltd.” Additionally,
Complainant contends that Respondent is not authorized to use its ACCURINT mark
in any way. Thus, the Panel determines
that Respondent is not commonly known by the <acccurint.com>
domain name under Policy ¶ 4(c)(ii). See St. Lawrence Univ. v.
Nextnet Tech, FA
881234 (Nat. Arb. Forum Feb. 21, 2007) (concluding a respondent has no rights
or legitimate interests in a disputed domain name where there is no evidence in
the record indicating that the respondent is commonly known by the disputed
domain name); 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 website that resolves from the <acccurint.com> domain name displays hyperlinks to various third-party websites, some of which are in direct competition with Complainant. The Panel finds that this use is not in connection with either a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See Charles Letts & Co Ltd. v. Citipublications, FA 692150 (Nat. Arb. Forum July 17, 2006) (finding that the respondent’s parking of a domain name containing the complainant’s mark for the respondent’s commercial gain did not satisfy Policy ¶ 4(c)(i) or ¶ 4(c)(iii)); see also Royal Bank of Scot. Group plc v. Demand Domains, FA 714952 (Nat. Arb. Forum Aug. 2, 2006) (finding that the operation of a commercial web directory displaying various links to third-party websites was not a use in connection with a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii), as the respondent presumably earned “click-through” fees for each consumer it redirected to other websites).
The disputed domain name is a typosquatted version of Complainant’s ACCURINT mark, as the <acccurint.com> domain name adds an extra letter “c” to Complainant’s mark, a common spelling error that Internet users may make. As such, the nature of the disputed domain name itself indicates a lack of rights and legitimate interests under Policy ¶ 4(a)(ii). See Microsoft Corp. v. Domain Registration Phil., FA 877979 (Nat. Arb. Forum Feb. 20, 2007) (concluding that the respondent had no rights or legitimate interests in the typosquatted <microssoft.com> domain name because it was a mere misspelling of the complainant’s MICROSOFT mark); see also eHealthInsurance Servs., Inc. v. Hasan, FA 982289 (Nat. Arb. Forum July 9, 2007) (holding that the registration of a typosquatted domain name represents a lack of rights or legitimate interests on the part of a respondent).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Respondent has been the respondent in several previous UDRP
decisions in which disputed domain names were transferred from Respondent to
the individual complainants in those proceedings. See
Royal Bank of
Due to the confusingly similar nature of the <acccurint.com> domain name to Complainant’s mark, the disputed domain name is capable of creating a likelihood of confusion as to Complainant’s source, sponsorship, affiliation or endorsement of the disputed domain name and resulting website. Additionally, the Panel finds that Respondent is attempting to profit from the operation of the <acccurint.com> domain name through the accrual of click-through fees for the hyperlinks displayed on the resulting website. Thus, the Panel finds evidence of bad faith registration and use under Policy ¶ 4(b)(iv). See Am. Univ. v. Cook, FA 208629 (Nat. Arb. Forum Dec. 22, 2003) (“Registration and use of a domain name that incorporates another's mark with the intent to deceive Internet users in regard to the source or affiliation of the domain name is evidence of bad faith.”); 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)).
As stated above, the <acccurint.com>
domain name is a typosquatted version of Complainant’s ACCURINT mark. Therefore, this indicates bad faith
registration and use under Policy ¶ 4(a)(iii).
See Nextel Commc'ns Inc. v. Geer, FA 477183 (Nat. Arb. Forum July 15, 2005) (finding that the respondent's
registration and use of the <nextell.com> domain name was in bad faith
because the domain name epitomized typosquatting in its purest form); see also Dermalogica, Inc. v. Domains to Develop, FA
175201 (Nat. Arb. Forum Sept. 22, 2003) (finding that
the <dermatalogica.com> domain name was a “simple misspelling” of the
complainant's DERMALOGICA mark which indicated typosquatting and
bad faith pursuant to Policy 4 ¶ (a)(iii)).
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 <acccurint.com> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: April 15, 2008
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