Quepasa Corporation v. Urbanohumano
Claim Number: FA0806001211647
Complainant is Quepasa Corporation (“Complainant”), represented by Adam
Stegge, of Snell & Wilmer L.L.P.,
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <quepasaria.com>, registered with Godaddy.com, Inc.
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.
Tyrus R. Atkinson, Jr,. as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on June 23, 2008; the National Arbitration Forum received a hard copy of the Complaint on June 26, 2008.
On June 24, 2008, Godaddy.com, Inc. confirmed by e-mail to the National Arbitration Forum that the <quepasaria.com> domain name is registered with Godaddy.com, Inc. and that Respondent is the current registrant of the name. Godaddy.com, Inc. has verified that Respondent is bound by the Godaddy.com, Inc. 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").
27, 2008, a Notification of Complaint and Commencement of Administrative
Proceeding (the "Commencement Notification"), setting a deadline of
July 17, 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.
On July 22, 2008, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Tyrus R. Atkison, Jr., 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 <quepasaria.com> domain name is confusingly similar to Complainant’s QUEPASA mark.
2. Respondent does not have any rights or legitimate interests in the <quepasaria.com> domain name.
3. Respondent registered and used the <quepasaria.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Quepasa Corporation, is one of the largest social communities on the Internet that targets the Latino community. Complainant’s website receives over two million hits each day. Complainant registered the QUEPASA mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 3,094,934 issued May 23, 2006).
Respondent registered the disputed domain name on March 21, 2007. The <quepasaria.com> domain name redirect Internet users to an unrelated website owned and operated by Respondent.
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 finds that Complainant’s registration of the QUEPASA trademark with the USPTO establishes its rights under Policy ¶ 4(a)(i). See 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)); see also Morgan Stanley v. Fitz-James, FA 571918 (Nat. Arb. Forum Nov. 29, 2005) (finding from a preponderance of the evidence that the complainant had registered its mark with national trademark authorities, the Panel determined that “such registrations present a prima facie case of Complainant’s rights in the mark for purposes of Policy ¶ 4(a)(i).”).
Respondent’s <quepasaria.com> domain name is confusingly similar to Complainant’s QUEPASA mark, as it incorporates the mark in its entirety, and adds the letters “ria,” as well as the top-level domain (“gTLD”) “.com.” The Panel finds that the addition of “ria” does not alleviate the confusing similarity between the disputed domain name and Complainant’s mark. Also, the addition of the gTLD “.com” is irrelevant. Therefore, the Panel finds that the disputed domain name is identical to Complainant’s mark pursuant to 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 Rollerblade, Inc. v. McCrady, D2000-0429 (WIPO June 25, 2000) (finding that the top level of the domain name such as “.net” or “.com” does not affect the domain name for the purpose of determining whether it is identical or confusingly similar).
The Panel finds that Complainant satisfied Policy ¶ 4(a)(i).
Complainant asserts that Respondent lacks rights and legitimate interests in the <quepasaria.com> domain name. Complainant has the burden of proof for this allegation pursuant to Policy ¶ 4(a)(ii). Once Complainant has made a prima facie showing, the burden of proof shifts to Respondent to show that it does have rights or legitimate interests. See Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (holding that, where the complainant has asserted that the respondent has no rights or legitimate interests with respect to the domain name, it is incumbent on the respondent to come forward with concrete evidence rebutting this assertion because this information is “uniquely within the knowledge and control of the respondent”); see also Clerical Med. Inv. Group Ltd. v. Clericalmedical.com, D2000-1228 (WIPO Nov. 28, 2000) (finding that, under certain circumstances, the mere assertion by the complainant that the respondent has no right or legitimate interest is sufficient to shift the burden of proof to the respondent to demonstrate that such a right or legitimate interest does exist). The Panel will examine the record to determine if Complainant has met its burden.
Complainant alleges that Respondent is not commonly known by the <quepasaria.com> domain name pursuant to Policy ¶ 4(c)(ii). The record contains nothing to suggest Respondent is commonly known by the disputed domain name. The WHOIS information identifies Respondent as “Urbanohumano,” with no reference to the <quepasaria.com> domain name. Respondent is in no way licensed or authorized to use the QUEPASA trademark. The Panel finds that Respondent lacks rights and legitimate interests in the <quepasaria.com> domain name under Policy ¶ 4(c)(ii). See Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003) (stating “nothing in Respondent’s WHOIS information implies that Respondent is ‘commonly known by’ the disputed domain name” as one factor in determining that Policy ¶ 4(c)(ii) does not apply); see also Ian Schrager Hotels, L.L.C. v. Taylor, FA 173369 (Nat. Arb. Forum Sept. 25, 2003) (finding that without demonstrable evidence to support the assertion that a respondent is commonly known by a domain name, the assertion must be rejected).
The <quepasaria.com> domain name redirects Internet users to an unrelated website owned and operated by Respondent. The Panel presumes that Respondent is using the disputed domain name for monetary gain by capitalizing on the good reputation of Complainant’s mark. The Panel finds this is not 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 Computer Doctor Franchise Sys., Inc. v. Computer Doctor, FA 95396 (Nat. Arb. Forum Sept. 8, 2000) (finding that the respondent’s website, which is blank but for links to other websites, is not a legitimate use of the domain names); see also Bank of Am. Corp. v. Nw. Free Cmty. Access, FA 180704 (Nat. Arb. Forum Sept. 30, 2003) (“Respondent's demonstrated intent to divert Internet users seeking Complainant's website to a website of Respondent and for Respondent's benefit 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).”).
The Panel finds Complainant has met its burden of proof under Policy ¶ 4(a)(ii).
Respondent’s use of the <quepasaria.com> domain name, which is confusingly similar to Complainant’s QUEPASA trademark, is likely to cause confusion to customers searching for Complainant’s goods and services. There may be confusion regarding Complainant’s affiliation, endorsement, or sponsorship of the links advertised on Respondent’s resolving website. The Panel can assume Respondent is commercially benefiting from this confusion. Based on the findings, the Panel concludes the registration and use of the <quepasaria.com> domain name constitutes bad faith under Policy ¶ 4(b)(iv). See 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, its use of the names was not in connection with the offering of goods or services or any other fair use); see also Bank of Am. Corp. v. Out Island Props., Inc., FA 154531 (Nat. Arb. Forum June 3, 2003) (stating that “[s]ince the disputed domain names contain entire versions of Complainant’s marks and are used for something completely unrelated to their descriptive quality, a consumer searching for Complainant would become confused as to Complainant’s affiliation with the resulting search engine website” in holding that the domain names were registered and used in bad faith pursuant to Policy ¶ 4(b)(iv)).
The Panel finds that the 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 <quepasaria.com> domain name be TRANSFERRED from Respondent to Complainant.
Tyrus R. Atkinson, Jr., Panelist
Dated: August 5, 2008
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