DatingDirect.com Limited v. DOMREG c/o TEKNOLINE
Claim Number: FA0808001222543
Complainant is DatingDirect.com Limited (“Complainant”), represented by Adam
Taylor, of Adlex Solicitors,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <datingdirectonline.info>, registered with Directi Internet Solutions Pvt. Ltd. d/b/a PublicDomainRegistry.com.
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.
John J. Upchurch as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on August 29, 2008; the National Arbitration Forum received a hard copy of the Complaint on August 29, 2008.
On August 31, 2008, Directi Internet Solutions Pvt. Ltd. d/b/a PublicDomainRegistry.com confirmed by e-mail to the National Arbitration Forum that the <datingdirectonline.info> domain name is registered with Directi Internet Solutions Pvt. Ltd. d/b/a PublicDomainRegistry.com and that Respondent is the current registrant of the name. Directi Internet Solutions Pvt. Ltd. d/b/a PublicDomainRegistry.com has verified that Respondent is bound by the Directi Internet Solutions Pvt. Ltd. d/b/a PublicDomainRegistry.com 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").
On September 16, 2008, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of October 6, 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@datingdirectonline.info by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On October 14, 2008, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed John J. Upchurch 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 <datingdirectonline.info> domain name is confusingly similar to Complainant’s DATING DIRECT mark.
2. Respondent does not have any rights or legitimate interests in the <datingdirectonline.info> domain name.
3. Respondent registered and used the <datingdirectonline.info> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, DatingDirect.com Limited, is an international online dating agency, and has registered its DATING DIRECT mark with the United Kingdom Intellectual Property Office (“UKIPO”) (Reg. No. 2,319,425 issued June 16, 2006).
Respondent registered the disputed <datingdirectonline.info> domain name on May 15, 2008, and is currently using the disputed domain name to host a website that displays third-party links for Complainant’s direct competitors.
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 submitted evidence of its UKIPO trademark
registration for its DATING DIRECT mark.
In Metropolitan Life Insurance Company v. Bonds, FA 873143 (Nat. Arb. Forum Feb. 16, 2007),
the panel held that a trademark registration adequately demonstrates a
complainant’s rights in a mark under Policy ¶ 4(a)(i)). Similarly, the panel in VICORP Restaurants,
Inc. v. Triantafillos, FA 485933 (Nat.
Arb. Forum July 14, 2005) found that “[c]omplainant has established rights in
the
Respondent’s <datingdirectonline.info> domain name adds the top-level domain “.info,” as well as the generic word “online” to Complainant’s DATING DIRECT mark. The addition of a TLD is irrelevant under Policy ¶ 4(a)(i). Moreover, the word “online” describes Complainant’s Internet-based dating service, which fails to add any distinguishing feature to the disputed domain name. Therefore, the Panel finds that the disputed domain name is confusingly similar to the mark under Policy ¶ 4(a)(i). See Trip Network Inc. v. Alviera, FA 914943 (Nat. Arb. Forum Mar. 27, 2007) (concluding that the addition of a gTLD, whether it be “.com,” “.net,” “.biz,” or “.org,” is irrelevant to a Policy ¶ 4(a)(i) analysis); see also Sutton Group Fin. Servs. Ltd. v. Rodger, D2005-0126 (WIPO June 27, 2005) (finding that the domain name <suttonpromo.com> is confusingly similar to the SUTTON mark because the addition of descriptive or non-distinctive elements to the distinctive element in a domain name is immaterial to the analysis under Policy ¶ 4(a)(i)).
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant has asserted that Respondent lacks rights and legitimate interests in the disputed domain name. Once Complainant sets forth a prima facie case supporting its allegations, as it has in this case, the burden shifts to Respondent to prove that it does have rights or legitimate interests under Policy ¶ 4(a)(ii). See 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); see also G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum Oct. 1, 2002) (“Because Complainant’s Submission constitutes a prima facie case under the Policy, the burden effectively shifts to Respondent. Respondent’s failure to respond means that Respondent has not presented any circumstances that would promote its rights or legitimate interests in the subject domain name under Policy ¶ 4(a)(ii).”).
Respondent has failed to submit a response in this
proceeding, leaving the Panel bereft of any information that would suggest that
Respondent is or was commonly known by the disputed domain name. What
remains for scrutiny is the registrant of record in the WHOIS information;
however such registrant is listed as “DOMREG c/o TEKNOLINE.” Therefore, the Panel finds that Respondent is
not commonly known by the disputed 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).
Respondent’s disputed domain name resolves to a website wherein third-party advertisements for Complainant’s direct competitors are shown. Complainant asserts, and the Panel so infers, that Respondent conducts this activity for commercial gain, through the receipt of click-through fees. The Panel finds this use to fail as 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 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).”); see also Disney Enters., Inc. v. Kamble, FA 918556 (Nat. Arb. Forum Mar. 27, 2007) (holding that the operation of a pay-per-click website at a confusingly similar domain name was 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)).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Respondent’s disputed domain name resolves to a website that
promotes Complainant’s competitors through third-party advertisements. Therefore, the Panel finds that Respondent
has registered and used the disputed domain name in bad faith under Policy ¶
4(b)(iii), as this activity disrupts Complainant’s business. See S.
Exposure v. S. Exposure, Inc., FA
94864 (Nat. Arb. Forum July 18, 2000) (finding that the respondent registered
the domain name in question to disrupt the business of the complainant, a
competitor of the respondent); see also
Respondent has also sought to attract Internet users for
commercial gain by creating a likelihood of confusion as to Complainant’s
source and endorsement of the disputed domain name and resolving website by
creating the confusingly similar disputed domain name. The Panel finds that this constitutes bad
faith registration and use under 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 Zee TV USA, Inc. v. Siddiqi,
FA 721969 (Nat. Arb. Forum July 18, 2006) (finding that the respondent engaged
in bad faith registration and use by using a domain name that was confusingly
similar to the complainant’s mark to offer links to third-party websites that
offered services similar to those offered by the complainant).
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 <datingdirectonline.info> domain name be TRANSFERRED from Respondent to Complainant.
John J. Upchurch, Panelist
Dated: October 28, 2008
National
Arbitration Forum
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