DatingDirect.com Limited v. Seo domains c/o James Richardson
Claim Number: FA0808001222542
Complainant is DatingDirect.com Limited (“Complainant”), represented by Adam
Taylor, of Adlex Solicitors,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <jewishdatingdirect.com>, registered with Directi Internet Solutions Pvt. Ltd. d/b/a Publicd.
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.
Hon. Ralph Yachnin as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On
On September 4, 2008, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of September 24, 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@jewishdatingdirect.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On
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 <jewishdatingdirect.com> domain name is confusingly similar to Complainant’s DATING DIRECT mark.
2. Respondent does not have any rights or legitimate interests in the <jewishdatingdirect.com> domain name.
3. Respondent registered and used the <jewishdatingdirect.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, DatingDirect.com Limited, has operated its dating agency service under the DATING DIRECT mark since 1999, and registered the mark with the United Kingdom Intellectual Property Office (“UKIPO”) (Reg. No. 2,319,425 issued June 16, 2006).
Respondent registered the <jewishdatingdirect.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.
Complainant asserts rights to the DATING DIRECT mark by
virtue of its trademark registration with the UKIPO. Previous panels have found that registration
with the UKIPO is sufficient to establish rights in a mark pursuant to Policy ¶
4(a)(i). See Nat’l
Westminster Bank plc v. Westbrom, FA 1008190 (Nat. Arb. Forum July 25, 2007) (“The Panel
finds Complainant’s registration of its NATWEST mark with the UKIPO
sufficiently establishes its rights in the mark pursuant to Policy ¶
4(a)(i).”). Furthermore, at least one
previous panel has acknowledged Complainant’s rights in the DATING DIRECT mark
on this basis. See DatingDirect.com Ltd. v. Tabish Umar Siddiqui, FA 1139945 (Nat.
Arb. Forum Mar. 11, 2008) (“Complainant asserts rights in its DATING DIRECT
mark by virtue of its Trademark Registration with the United Kingdom
Intellectual Property Office (“UKIPO”) .… The Panel finds that this
Trademark Registration adequately establishes rights in the mark for the
purposes of Policy ¶ 4(a)(i).”).
Therefore, the Panel finds that Complainant has established rights in
the DATING DIRECT mark for purposes of this case as well pursuant to Policy ¶
4(a)(i).
Respondent’s <jewishdatingdirect.com>
domain name contains Complainant’s DATING DIRECT mark in its entirety, without
the space, and adds the generic top-level domain (“gTLD”) “.com” to the
end. These changes do not distinguish
the disputed domain name in any way. See Bond
& Co. Jewelers, Inc. v.
Based on the foregoing, the Panel determines that Policy ¶
4(a)(i) has been satisfied.
Complainant has alleged that Respondent lacks rights and legitimate interests in the <jewishdatingdirect.com> domain name. Based upon the allegations made in the Complaint, the Panel finds that Complainant has established a prima facie case pursuant to Policy ¶ 4(a)(ii), thus shifting the burden of proof to Respondent. Since Respondent has not responded to the Complaint, the Panel will examine the record to determine if Respondent has rights or legitimate interests pursuant to Policy ¶ 4(c). See AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006) (“Complainant must make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interest in the subject domain names.”); see also Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name).
Under Policy ¶ 4(c)(ii), Respondent can show that it is commonly known by the <jewishdatingdirect.com> domain name to establish rights and legitimate interests. However, the WHOIS domain name registration information identifies Respondent as “Seo domains c/o James Richardson,” and there is no evidence in the record to support Respondent’s cause, especially since Respondent failed to respond to the Complaint. Consequently, the Panel concludes that Respondent is not commonly known by the <jewishdatingdirect.com> domain name pursuant to Policy ¶ 4(c)(ii). See Instron Corp. v. Kaner, FA 768859 (Nat. Arb. Forum Sept. 21, 2006) (finding that the respondent was not commonly known by the <shoredurometer.com> and <shoredurometers.com> domain names because the WHOIS information listed Andrew Kaner c/o Electromatic a/k/a Electromatic Equip’t as the registrant of the disputed domain name and there was no other evidence in the record to suggest that the respondent was commonly known by the domain names in dispute); see also 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).
Respondent is using the <jewishdatingdirect.com>
domain name to display a list of hyperlinks promoting Jewish dating sites. Respondent has also promoted other various
dating websites as well on the website resolving from the disputed domain
name. In both cases, Respondent
presumably receives click-through fees for each Internet user that is
redirected to one of these advertised dating sites. The Panel finds that such use of the <jewishdatingdirect.com> domain name
constitutes neither a bona fide offering
of goods or services under Policy ¶ 4(c)(i) nor a legitimate noncommercial or
fair use under Policy ¶ 4(c)(iii). See Bond
& Co. Jewelers, Inc. v.
Since Respondent cannot satisfy any of the elements of
Policy ¶ 4(c), the Panel finds that Policy ¶ 4(a)(ii) has been satisfied in
Complainant’s favor.
Respondent’s use of the <jewishdatingdirect.com>
domain name promotes the competing dating websites advertised on the resolving
website. Thus, Internet users attempting
to reach Complainant will be diverted to competitors, thus constituting a
disruption of Complainant’s business.
This evidences Respondent’s bad faith registration and use pursuant to
Policy ¶ 4(b)(iii). See David Hall Rare Coins v.
The <jewishdatingdirect.com> domain name, which the Panel has already noted is confusingly similar to Complainant’s DATING DIRECT mark, is likely to confuse customers as to the source, sponsorship, affiliation, or endorsement of the content posted to Respondent’s resolving website. Respondent is attempting to profit off of the goodwill associated with Complainant’s mark by earning click-through fees for each redirected Internet user. This clearly demonstrates bad faith registration and use on Respondent’s part pursuant to Policy ¶ 4(b)(iv). See Metro. Life Ins. Co. v. Bonds, FA 873143 (Nat. Arb. Forum Feb. 16, 2007) (“The Panel finds such use to constitute bad faith registration and use pursuant to Policy ¶ 4(b)(iv), because Respondent is taking advantage of the confusing similarity between the <metropolitanlife.us> domain name and Complainant’s METLIFE mark in order to profit from the goodwill associated with the mark.”); see also Yahoo! Inc. v. Web Master, FA 127717 (Nat. Arb. Forum Nov. 27, 2002) (“By use of <yahgo.com> to operate its search engine, a name that infringes upon Complainant’s mark, Respondent is found to have created circumstances indicating that Respondent, by using the domain name, has intentionally attempted to attract, for commercial gain, Internet users to Respondent’s website by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the website or of a product or service on the website as proscribed in Policy ¶ 4(b)(iv).”).
Since Respondent’s registration and use amounts to bad faith
pursuant to Policy ¶¶ 4(b)(iii) and (iv), 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 <jewishdatingdirect.com> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Ralph Yachnin, Panelist
Justice, Supreme Court, NY (Ret.)
Dated: October 9, 2008
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