Vancouver Film School Limited v. Telecom Tech Corp. c/o Administrator Administrator
Claim Number: FA0805001195919
Complainant is Vancouver Film School Limited (“Complainant”), represented by Robert
J.C. Deane, of Borden Ladner Gervais LLP, BC,
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <wwwvfs.com>, registered with Name.com LLC.
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.
Judge Ralph Yachnin as Panelist.
Complainant submitted a Complaint to the
National Arbitration Forum electronically on
6, 2008, a Notification of Complaint and Commencement of Administrative
Proceeding (the "Commencement Notification"), setting a deadline of
June 26, 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 <wwwvfs.com> domain name is confusingly similar to Complainant’s VFS mark.
2. Respondent does not have any rights or legitimate interests in the <wwwvfs.com> domain name.
3. Respondent registered and used the <wwwvfs.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Respondent registered the <wwwvfs.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.
Although the <wwwvfs.com>
domain name was registered before Complainant’s VFS mark, the Panel finds that
Complainant sufficiently established common law rights in its mark pursuant to
Policy ¶ 4(a)(i) through secondary meaning.
Complainant has widely used the VFS mark in commerce to offer its goods
and services since 1987, has gained brand-name recognition of its VFS mark and
name through the media, and has instructed over 15,000 students using the VFS mark
and name. In addition, Complainant
registered the <www.vfs.com> domain name on
Moreover, the Panel finds that the <wwwvfs.com> domain name is confusingly similar to Complainant’s VFS mark under Policy ¶ 4(a)(i) because it contains Complainant’s entire mark. The inclusion of the generic top-level domain (“gTLD”) “.com” or the prefix “www” does not distinguish the disputed domain name from Complainant’s mark for the purposes of confusing similarity under Policy ¶ 4(a)(i). See Oki Data Ams., Inc. v. ASD, Inc., D2001-0903 (WIPO Nov. 6, 2001) (“[T]he fact that a domain name wholly incorporates a Complainant’s registered mark is sufficient to establish identity [sic] or confusing similarity for purposes of the Policy despite the addition of other words to such marks”); see also Neiman Marcus Group, Inc. v. S1A, FA 128683 (Nat. Arb. Forum Dec. 6, 2002) (holding confusing similarity has been established because the prefix "www" does not sufficiently differentiate the <wwwneimanmarcus.com> domain name from the complainant's NEIMAN-MARCUS mark); see also Sony Kabushiki Kaisha v. Inja, Kil, D2000-1409 (WIPO Dec. 9, 2000) (finding that “[n]either the addition of an ordinary descriptive word . . . nor the suffix ‘.com’ detract from the overall impression of the dominant part of the name in each case, namely the trademark SONY” and thus Policy ¶ 4(a)(i) is satisfied).
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant must first establish a prima facie case that Respondent lacks rights and legitimate
interests in the <wwwvfs.com>
domain name. Once this prima facie case is established, the
burden then shifts to Respondent and Respondent must establish that it has
rights or legitimate interests in the dispute domain name. See Compagnie Generale des Matieres Nucleaires
v. Greenpeace Int’l, D2001-0376 (WIPO
Respondent uses the <wwwvfs.com> domain name to display hyperlinks to several third-party websites, some of which are in direct competition with Complainant, as well as Complainant’s own website. The Panel infers that Respondent earns click-through fees, which accordingly is not a bona fide offering of goods or services under Policy ¶ 4(c)(i) and it is not a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See Coryn Group, Inc. v. Media Insight, FA 198959 (Nat. Arb. Forum Dec. 5, 2003) (finding that the respondent was not using the domain names for a bona fide offering of goods or services nor a legitimate noncommercial or fair use because the respondent used the names to divert Internet users to a website that offered services that competed with those offered by the complainant under its marks); 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.”).
In addition, Respondent’s WHOIS information does not indicate
that Respondent is commonly known by the <wwwvfs.com>
domain name under Policy ¶ 4(c)(ii) and there is no
additional information in the record to indicate otherwise. Furthermore, Complainant asserts that
Respondent is not authorized to use the VFS mark. See G.D. Searle
& Co. v. Cimock, FA 126829 (Nat. Arb. Forum Nov. 13, 2003) (“Due to the fame of Complainant’s mark there
must be strong evidence that Respondent is commonly known by the disputed
domain name in order to find that Respondent has rights or legitimate interests
in the disputed domain name pursuant to Policy ¶ 4(c)(ii). However, there is no evidence on record, and
Respondent has not come forward with any proof to establish that it is commonly
known as CELEBREXRX or <celebrexrx.com>.”); see also RMO, Inc. v. Burbridge, FA 96949
(Nat. Arb. Forum
Moreover, Respondent has offered the <wwwvfs.com> domain name for sale for a minimum asking price of $150.00. This offer of sale for the disputed domain name by Respondent is evidence that Respondent does not have rights or legitimate interests under Policy ¶ 4(a)(ii). See Am. Int’l Group, Inc. v. Dobson, FA 146568 (Nat. Arb. Forum Apr. 8, 2003) (finding evidence that the respondent lacked rights or legitimate interests in the disputed domain name after it sent several correspondences offering to sell its rights in the domain name in exchange for 1,500 shares of the complainant’s stock to the complainant); see also Wal-Mart Stores, Inc. v. Stork, D2000-0628 (WIPO Aug. 11, 2000) (finding the respondent’s conduct purporting to sell the domain name suggests it has no legitimate use).
Finally, the <wwwvfs.com>
domain name takes advantage of a common typing error by Internet users, which
is generally known as “typosquatting.” Therefore,
the use of this typosquatted domain name does not establish rights or
legitimate interests under Policy ¶ 4(a)(ii) in the
disputed domain name. See Nat’l
Ass’n of Prof’l Baseball Leagues, Inc. v. Zuccarini, D2002-1011
(WIPO Jan. 21, 2003) (“Typosquatting … as a means of redirecting consumers
against their will to another site, does not qualify as a bona fide offering of
goods or services, whatever may be the goods or services offered at that
site.”); see also Medline, Inc. v. Domain Active Pty. Ltd., FA 139718 (Nat. Arb. Forum
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Based on the uncontested evidence presented by Complainant, the Panel finds that Respondent receives click-through fees from the hyperlinks that are displayed on the website that resolves from the <wwwvfs.com> domain name. In addition, the Panel finds that the disputed domain name creates a likelihood of confusion as to Complainant’s affiliation with the disputed domain name. Accordingly, the Panel finds that Respondent registered and used the <wwwvfs.com> domain name in bad faith pursuant to Policy ¶ 4(b)(iv). See 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)); see also 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.”).
Furthermore, the Panel
finds that Respondent is using the disputed domain name to redirect Internet
users to Respondent’s website that displays hyperlinks to several third-party
websites, some of which are in direct competition with Complainant, as well as
Complainant’s own website. This
disruption of Complainant’s business is evidence of bad faith under Policy ¶
4(b)(iii). See Disney Enters., Inc. v. Noel, FA
198805 (Nat. Arb. Forum
Finally, the Panel finds that the disputed domain name is a typosquatted version of Complainant’s mark meant to divert Internet users and thus, is evidence of bad faith under Policy ¶ 4(a)(iii). See Black & Decker Corp. v. Khan, FA 137223 (Nat. Arb. Forum Feb. 3, 2003) (finding the <wwwdewalt.com> domain name was registered to “ensnare those individuals who forget to type the period after the ‘www’ portion of [a] web-address,” which was evidence that the domain name was registered and used in bad faith); see also Nat’l Ass’n of Prof’l Baseball League, Inc. v. Zuccarini, D2002-1011 (WIPO Jan. 21, 2003) (“Typosquatting … is the intentional misspelling of words with [the] intent to intercept and siphon off traffic from its intended destination, by preying on Internauts who make common typing errors. Typosquatting is inherently parasitic and of itself evidence of 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 <wwwvfs.com> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Ralph Yachnin, Panelist
Justice, Supreme Court, NY (Ret.)
Dated: July 11, 2008
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