DatingDirect.com Limited v. Raman Arora
Claim Number: FA0812001239380
Complainant is DatingDirect.com Limited (“Complainant”), represented by Adam
Taylor, of Adlex Solicitors,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <cheapdatingdirect.com>, registered with Register.com, Inc.
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.
The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on December 19, 2008; the National Arbitration Forum received a hard copy of the Complaint on December 19, 2008.
On December 19, 2008, Register.com, Inc. confirmed by e-mail to the National Arbitration Forum that the <cheapdatingdirect.com> domain name is registered with Register.com, Inc. and that Respondent is the current registrant of the name. Register.com, Inc. has verified that Respondent is bound by the Register.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").
On December 30, 2008, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of January 20, 2009 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@cheapdatingdirect.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On January 26, 2008, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed the Honorable Charles K. McCotter, Jr. (Ret.) 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 <cheapdatingdirect.com> domain name is confusingly similar to Complainant’s DATING DIRECT mark.
2. Respondent does not have any rights or legitimate interests in the <cheapdatingdirect.com> domain name.
3. Respondent registered and used the <cheapdatingdirect.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Since 1999, Complainant, DatingDirect.com
Limited, has provided an online dating service for those seeking
relationships. In 2007, the number of
members enrolled in Complainant’s service was over 200 times greater than its1999
membership numbers. Because of
Complainant’s strong market presence and devotion to marketing, Complainant’s
website is the top sponsored link and search result for Internet users
searching “dating.” Complainant has numerous
trademarks for the DATING DIRECT mark, including with the United Kingdom
Intellectual Property Office (“UKIPO”) (Reg. No. 2,319,425 issued June 16,
2006).
Respondent, Raman Arora, registered the <cheapdatingdirect.com> domain name on July 23, 2008. The disputed domain name resolves to a web page containing links to Complainant’s 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 registered its mark with UKIPO (Reg. No. 2,319,425 issued June 16, 2006). The Panel finds this is sufficient to
establish Complainant’s rights in the DATING DIRECT mark pursuant to Policy ¶
4(a)(i). See Trip Network Inc. v. Alviera, FA
914943 (Nat. Arb. Forum Mar. 27, 2007)
(finding that the complainant’s federal trademark registrations for the
CHEAPTICKETS and CHEAPTICKETS.COM marks were adequate to establish its rights
in the mark pursuant to Policy ¶ 4(a)(i)); see
also 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)).
Respondent’s <cheapdatingdirect.com> domain name
is confusingly similar to Complainant’s DATING DIRECT mark pursuant to Policy
¶ 4(a)(i). Respondent has incorporated Complainant’s
entire mark, added the generic term “cheap,” and the generic top-level domain
(“gTLD”) “.com.” The addition of a
generic term, in this case “cheap,” to Complainant’s entire mark fails to
distinguish the disputed domain name from Complainant’s mark. See Arthur
Guinness Son & Co. (
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(i).
The initial burden resides with Complainant to make a prima facie case in support of its allegations. Once achieved, the burden shifts to Respondent to prove it has rights and legitimate interests in the disputed domain name pursuant to Policy ¶ 4(a)(ii). The Panel finds that Complainant has established a prima facie case. See Document Techs., Inc. v. Int’l Elec. Commc’ns Inc., D2000-0270 (WIPO June 6, 2000) (“[O]nce a Complainant makes out a prima facie showing, the burden of production on this factor shifts to the Respondent to rebut the showing by providing concrete evidence that it has rights to or legitimate interests in the Domain Name.”); see also Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (holding that once the complainant asserts that the respondent has no rights or legitimate interests with respect to the domain, the burden shifts to the respondent to provide “concrete evidence that it has rights to or legitimate interests in the domain name at issue”).
Respondent’s lack of response to the Complaint may be interpreted by the Panel as an admission of the truth of Complainant’s assertions that Respondent has no rights or legitimate interests in the disputed domain name. See Bank of Am. Corp. v. McCall, FA 135012 (Nat. Arb. Forum Dec. 31, 2002) (“Respondent's failure to respond not only results in its failure to meet its burden, but also will be viewed as evidence itself that Respondent lacks rights and legitimate interests in the disputed domain name.”). However, the Panel chooses to examine the record in accordance with the factors listed under Policy ¶ 4(c). The Panel may accept the allegations in the Complaint as true unless clearly contradicted. See Broadcom Corp. v. Ibecom PLC, FA 361190 (Nat. Arb. Forum Dec. 22, 2004) (“Respondent’s failure to respond to the Complaint functions as an implicit admission that [Respondent] lacks rights and legitimate interests in the disputed domain name. It also allows the Panel to accept all reasonable allegations set forth…as true.”); see also Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO Dec. 21, 2000) (finding that failing to respond allows a presumption that the complainant’s allegations are true unless clearly contradicted by the evidence).
The disputed domain name resolves to a website offering links to Complainant’s competitors. Respondent’s website is presumed to be a pay-per-click (“PPC”) site generating income for Respondent when confused Internet users click through the advertised links. This use by Respondent is evidence of intent to divert Internet users from Complainant by incorporating Complainant’s mark, creating confusion a propos of Complainant’s affiliation with Respondent’s website. The Panel finds that this is neither a bona fide offering of goods and services under Policy ¶ 4(c)(i) nor a noncommercial or fair use of the domain name under Policy ¶ 4(c)(iii). See 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)); see also Vance Int’l, Inc. v. Abend, FA 970871 (Nat. Arb. Forum June 8, 2007) (concluding that the operation of a pay-per-click website at a confusingly similar domain name does not represent a bona fide offering of goods or services or a legitimate noncommercial or fair use, regardless of whether or not the links resolve to competing or unrelated websites or if the respondent is itself commercially profiting from the click-through fees).
Respondent’s WHOIS information designates the registrant of the disputed domain name as one “Raman Arora.” Without further evidence to the contrary, the Panel finds that Respondent is not commonly known by the disputed 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 names 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 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).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
Respondent exploits Complainant’s well-recognized mark to divert Internet users from Complainant’s own site. The Panel finds that Respondent’s use of the disputed domain name is indicative of Respondent’s intent to disrupt Complainant’s business. Respondent’s use of the disputed domain name to direct Internet users to a directory of links to Complainant’s competitors evidences bad faith registration and use pursuant to Policy ¶ 4(b)(iii). See Red Hat, Inc. v. Haecke, FA 726010 (Nat. Arb. Forum July 24, 2006) (finding that the respondent engaged in bad faith registration and use pursuant to Policy ¶ 4(b)(iii) by using the disputed domain names to operate a commercial search engine with links to the products of the complainant and to complainant’s competitors, as well as by diverting Internet users to several other domain names); see also Tesco Pers. Fin. Ltd. v. Domain Mgmt. Servs., FA 877982 (Nat. Arb. Forum Feb. 13, 2007) (concluding that the use of a confusingly similar domain name to attract Internet users to a directory website containing commercial links to the websites of a complainant’s competitors represents bad faith registration and use under Policy ¶ 4(b)(iii)).
Respondent is presumed to be receiving compensation in the
form of click-through fees by redirecting Internet users. The Panel finds that this use is an attempt
by Respondent to profit from Complainant’s DATING DIRECT mark. Diversion from Complainant for commercial
gain by creating a likelihood of confusion is further evidence of bad faith
registration and use pursuant to Policy ¶ 4(b)(iv). See Asbury
Auto. Group, Inc. v.
The Panel finds Complainant has satisfied Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <cheapdatingdirect.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: February 9, 2009
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