DatingDirect.com Limited v. OrderFreeBooster.com c/o Vladimir Khomenko
Claim Number: FA0807001214936
Complainant is DatingDirect.com
Limited (“Complainant”), represented by Adam Taylor, of Adlex Solicitors,
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <truedatingdirect.com>, registered with Dotster.
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.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On July 22, 2008, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of August 11, 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 <truedatingdirect.com> domain name is confusingly similar to Complainant’s DATING DIRECT mark.
2. Respondent does not have any rights or legitimate interests in the <truedatingdirect.com> domain name.
3. Respondent registered and used the <truedatingdirect.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Dating Direct.com Limited, provides online dating services for Internet users. Complainant uses its DATING DIRECT mark in connection with these services and operates its services on the website resolving from its <datingdirect.com> domain name. Complainant registered its DATING DIRECT mark with the United Kingdom Intellectual Property Office (“UKIPO”) on June 16, 2006 (Reg. No. 2,319,425).
Respondent registered the disputed domain name on April 7, 2008. Respondent’s disputed domain name resolves to a website that links to a third-party website, which competes with Complainant’s dating services.
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 has provided the Panel with evidence of the registration of its DATING DIRECT mark with the UKIPO. The Panel finds this registration sufficiently establishes Complainant’s rights in its DATING DIRECT mark pursuant to Policy ¶ 4(a)(i). See Janus Int’l Holding Co. v. Rademacher, D2002-0201 (WIPO Mar. 5, 2002) ("Panel decisions have held that registration of a mark is prima facie evidence of validity, which creates a rebuttable presumption that the mark is inherently distinctive."); see also Koninklijke KPN N.V. v. Telepathy Inc., D2001-0217 (WIPO May 7, 2001) (finding that the Policy does not require that the mark be registered in the country in which the respondent operates; therefore it is sufficient that the complainant can demonstrate a mark in some jurisdiction).
Respondent’s <truedatingdirect.com> domain name incorporates Complainant’s DATING DIRECT mark with the additions of the term “true,” and the generic top-level domain “.com.” The Panel finds the additions of a generic term and a top-level domain are not enough to dispel the similarity between the disputed domain name and Complainant’s mark. See Arthur Guinness Son & Co. (Dublin) Ltd. v. Healy/BOSTH, D2001-0026 (WIPO Mar. 23, 2001) (finding confusing similarity where the domain name in dispute contains the identical mark of the complainant combined with a generic word or term); see also America Online Inc. v. Neticq.com Ltd., D2000-1606 (WIPO Feb. 12, 2001) (finding that the addition of the generic word “Net” to the complainant’s ICQ mark, makes the <neticq.com> domain name confusingly similar to the complainant’s mark).
Thus, the Panel finds Respondent’s disputed domain name is confusingly similar to Complainant’s mark pursuant to Policy ¶ 4(a)(i). The Panel finds Policy ¶ 4(a)(i) has been satisfied.
Complainant alleges Respondent does not have rights or
legitimate interests in the disputed domain name. Complainant is required to produce a prima facie case in support of its
allegations. Once Complainant has done
so, the burden shifts to Respondent to demonstrate it possesses rights or
legitimate interests in the disputed domain name. See G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum
The Panel, however, will examine the record to determine whether Respondent possesses rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(c). Respondent’s disputed domain name resolves to a website that links to a third-party website, which competes with Complainant’s online dating service business. The Panel finds Respondent’s competing use of the disputed domain name is not 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). See Oregon State Bar v. A Special Day, Inc., FA 99657 (Nat. Arb. Forum Dec. 4, 2001) (“Respondent's advertising of legal services and sale of law-related books under Complainant's name is not a bona fide offering of goods and services because Respondent is using a mark confusingly similar to the Complainant's to sell competing goods.”); see also 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).
Complainant alleges Respondent is not commonly known by the disputed domain name. The WHOIS information lists Respondent as “OrderFreeBooster.com.” Complainant states it has never authorized Respondent to use its DATING DIRECT mark in any manner. Therefore, the Panel finds Respondent is not commonly known by the disputed 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 the respondent does not have rights in a domain name when the respondent is not known by the mark); 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 Panel finds Policy ¶ 4(a)(ii) has been satisfied.
Respondent’s disputed domain name resolves to a website that
links to a third-party website offering competing online dating services. The Panel finds Respondent’s use of the
disputed domain name constitutes disruption and is evidence of bad faith
registration and use pursuant to Policy ¶ 4(b)(iii). See
S. Exposure v. S. Exposure, Inc., FA 94864 (Nat. Arb. Forum
Complainant contends Respondent presumably profits from the disputed domain name in the form of click-through fees. Complainant maintains Respondent is using the confusingly similar disputed domain name in order to deceive Internet users into believing Complainant is in some way affiliated with the disputed domain name. The Panel finds Respondent’s attempt to profit from the goodwill Complainant has established in its DATING DIRECT mark is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv). See Associated Newspapers Ltd. v. Domain Manager, FA 201976 (Nat. Arb. Forum Nov. 19, 2003) (“Respondent's prior use of the <mailonsunday.com> domain name is evidence of bad faith pursuant to Policy ¶ 4(b)(iv) because the domain name provided links to Complainant's competitors and Respondent presumably commercially benefited from the misleading domain name by receiving ‘click-through-fees.’”).
The Panel finds 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 <truedatingdirect.com> domain name be TRANSFERRED from Respondent to Complainant.
Dated: September 2, 2008
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