Naim Interactive Inc. v. DSA
Claim Number: FA0805001195387
Complainant is Naim Interactive Inc. (“Complainant”)
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <gototraficschool.com>, registered with Godaddy.com, Inc.
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.
Louis E. Condon as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
10, 2008, a Notification of Complaint and Commencement of Administrative
Proceeding (the "Commencement Notification"), setting a deadline of
June 30, 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 <gototraficschool.com> domain name is confusingly similar to Complainant’s GOTOTRAFFICSCHOOL.COM mark.
2. Respondent does not have any rights or legitimate interests in the <gototraficschool.com> domain name.
3. Respondent registered and used the <gototraficschool.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant has used the GOTOTRAFFICSCHOOL.COM mark in
connection with online, workbook, and video traffic school and defensive
driving courses since it registered the <gototrafficschool.com> domain
The <gototraficschool.com> domain name was registered
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 need not have registered its GOTOTRAFFICSCHOOL.COM
mark with any governmental authority in order to establish rights in that mark
sufficient for the purpose of Policy ¶ 4(a)(i).
See Artistic Pursuit LLC v. calcuttawebdevelopers.com, FA 894477 (Nat.
Arb. Forum Mar. 8, 2007) (finding that Policy ¶ 4(a)(i) does not require a
trademark registration if a complainant can establish common law rights in its
mark); see also British Broad. Corp. v. Renteria, D2000-0050
Complainant has been continuously offering online, workbook,
and video traffic school and defensive driving courses under the
GOTOTRAFFICSCHOOL.COM mark since it registered the
<gototrafficschool.com> domain name on January 21, 2000. The online and workbook course have been
approved by traffic court judges and insurance providers in at least 16
Respondent’s <gototraficschool.com> domain name would be identical to Complainant’s GOTOTRAFFICSCHOOL.COM mark but for the omission of a second letter “f.” Simple misspellings of a mark do not sufficiently distinguish a disputed domain name. As a result of this, the Panel finds that the disputed domain name is confusingly similar to Complainant’s mark pursuant to Policy ¶ 4(a)(i). See 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); see also Myspace, Inc. v. Kang, FA 672160 (Nat. Arb. Forum June 19, 2006) (finding that the <myspce.com> domain name was confusingly similar to the complainant’s MYSPACE mark and the slight difference in spelling did not reduce the confusing similarity).
The Panel concludes that Complainant has sufficiently established Policy ¶ 4(a)(i).
Under Policy ¶ 4(a)(ii), Complainant must first establish a prima facie case that Complainant has no
rights or legitimate interests in the disputed domain name. See VeriSign
Inc. v. VeneSign
Respondent has failed to reply to the Complaint. Therefore, the Panel may presume that Respondent has no rights or legitimate interests in the disputed domain name, but will nonetheless examine the record in consideration of the elements established under Policy ¶ 4(c). See Do the Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (“Failure of a respondent to come forward to [contest complainant’s allegations] is tantamount to admitting the truth of complainant’s assertions in this regard.”); 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).
Nothing in the disputed domain name’s WHOIS information or
anything else in the record indicates that Respondent is or ever was commonly
known by the disputed domain name.
Accordingly, the Panel finds that Respondent is not commonly known by
the <gototraficschool.com> domain name pursuant to
Policy ¶ 4(c)(ii). See Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb.
The <gototraficschool.com> domain name redirects Internet users to the <ezts.com> domain name, where services and products of a direct competitor of Complainant are advertised and offered. The Panel finds that this does not constitute either a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommerical or fair use pursuant to Policy ¶ 4(c)(iii). See eBay Inc. v. Hong, D2000-1633 (WIPO Jan. 18, 2001) (stating that the respondent’s use of the complainant’s entire mark in domain names makes it difficult to infer a legitimate use); see also Am. Int’l Group, Inc. v. Benjamin, FA 944242 (Nat. Arb. Forum May 11, 2007) (finding that the respondent’s use of a confusingly similar domain name to advertise real estate services which competed with the complainant’s business did not constitute 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 also DLJ Long Term Inv. Corp. v. BargainDomainNames.com, FA 104580 (Nat. Arb. Forum Apr. 9, 2002) (“Respondent is not using the disputed domain name in connection with a bona fide offering of goods and services because Respondent is using the domain name to divert Internet users to <visual.com>, where services that compete with Complainant are advertised.”).
The Panel concludes that Complainant has sufficiently established Policy ¶ 4(a)(ii).
When Internet users attempt to access the <gototraficschool.com> domain name, they are immediately redirected to another domain name under which products and services that are in direct competition with those offered under Complainant’s mark are offered. The Panel finds that this is disruptive use and establishes Respondent’s bad faith registration and use of the disputed domain name pursuant to Policy ¶ 4(b)(iii). See Travant Solutions, Inc. v. Cole, FA 203177 (Nat. Arb. Forum Dec. 6, 2003) (“Respondent registered and used the domain name in bad faith, pursuant to Policy ¶ 4(b)(iii), because it is operating on behalf of a competitor of Complainant . . .”); see also 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).”).
Moreover, since products and services competing with Complainant are marketed and sold on the redirected website resolving from confusingly similar disputed domain name, the Panel presumes that Respondent is commerically benefting from such use. Consequently, the Panel finds this to be further evidence of Respondent’s bad faith registration and use of the <gototraficschool.com> domain name pursuant to Policy ¶ 4(b)(iv). See Allianz of Am. Corp. v. Bond, FA 680624 (Nat. Arb. Forum June 2, 2006) (finding bad faith registration and use under Policy ¶ 4(b)(iv) where the respondent was diverting Internet users searching for the complainant to its own website and likely profiting); see also Gardens Alive, Inc. v. D&S Linx, FA 203126 (Nat. Arb. Forum Nov. 20, 2003) (“Respondent registered and used the <my-seasons.com> domain name in bad faith pursuant to Policy ¶¶ 4(b)(iii) and (iv) because Respondent is using a domain name that is confusingly similar to the MYSEASONS mark for commercial benefit by diverting Internet users to the <thumbgreen.com> website, which sells competing goods and services.”).
The Panel concludes that Complainant has sufficiently established Policy ¶ 4(a)(iii).
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief should be GRANTED.
Accordingly, it is Ordered that the <gototraficschool.com> domain name be TRANSFERRED from Respondent to Complainant.
Louis E. Condon, Panelist
Dated: July 14, 2008
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