Cybertania Inc v. The Domain Queue c/o Domain Admin
Claim Number: FA0904001258292
Complainant is Cybertania, Inc (“Complainant”), represented by Leo
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <myfeecams.com>, registered with Enom, 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
On
On
Respondent sent an e-mail to the Forum, stating that Respondent could have raised certain defenses to this claim, but decided not to do so. Respondent states that for the sum of $1500.00 Respondent had no problem transferring the domain name to complainant. This Response was not received by the Forum by the response deadline and does not properly address any of the issues raised by Complainant. The Panel does not find that the e-mail represents a proper response under the Policy and will decide this domain name dispute as a default case.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On June 4, 2009, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Tyrus R. Atkinson, 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 <myfeecams.com> domain name is confusingly similar to Complainant’s MYFREECAMS.COM mark.
2. Respondent does not have any rights or legitimate interests in the <myfeecams.com> domain name.
3. Respondent registered and used the <myfeecams.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant has operated a web-cam-based online community
since 2002. Complainant uses its
MYFREECAMS.COM mark in connection with this business and holds a registration
of the mark with the United States Patent and Trademark Office (“USPTO”) (Reg.
No. 3,495,750 issued
Respondent registered the <myfeecams.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
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 must first establish that it has rights to the
mark included in the disputed domain name.
Under Policy ¶ 4(a)(i) registration of a
trademark is not necessary to establish that Complainant has rights in the
mark. See McCarthy on Trademarks and
Unfair Competition, § 25:74.2 (4th ed. 2002) (The ICANN dispute
resolution policy is “broad in scope” in that “the reference to a trademark or
service mark ‘in which the complainant has rights’ means that ownership of a
registered mark is not required–unregistered or common law trademark or service
mark rights will suffice” to support a domain name complaint under the Policy);
see also
Complainant has used the MYFREECAMS.COM mark since at least
September 2003. Complainant’s online
community has over one million members and Complainant has been recognized by its
MYFREECAMS.COM mark by third parties.
The Panel finds that Complainant has established that the MYFREECAMS.COM
mark has acquired a secondary meaning and Complainant has established common
law rights in the mark pursuant to Policy ¶ 4(a)(i) dating prior to
Respondent’s registration of the disputed domain name. See Kahn Dev. Co. v.
RealtyPROshop.com, FA 568350 (Nat. Arb. Forum
Complainant argues that Respondent’s <myfeecams.com> domain name is
confusingly similar to its MYFREECAMS.COM mark.
The only difference between the disputed domain name and Complainant’s
mark is that the disputed domain name omits the letter “r.” The Panel finds that the <myfeecams.com> domain name is
confusingly similar to Complainant’s MYFREECAMS.COM mark pursuant to Policy ¶
4(a)(i). See Reuters
Ltd. v. Global Net 2000, Inc., D2000-0441 (WIPO
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(i).
Pursuant to Policy
¶ 4(a)(ii), Complainant must first establish a prima
facie case that Respondent has no rights or legitimate interests in the
disputed domain name. If the Panel finds
that Complainant’s allegations establish such a prima facie case, the
burden shifts to Respondent to show that it does indeed have rights or
legitimate interests in the disputed domain name pursuant to the guidelines in
Policy ¶ 4(c). The Panel finds
that Complainant’s allegations are sufficient to establish a prima facie case that Respondent has no
rights or legitimate interests in the <myfeecams.com>
domain name pursuant to Policy ¶ 4(a)(ii). Since
no response was submitted in this case, the Panel may presume that Respondent
has no rights or legitimate interests in the disputed domain name. However, the Panel will still examine the
record in consideration of the factors listed in Policy ¶ 4(c). See Domtar, Inc. v. Theriault., FA 1089426 (Nat. Arb.
Forum
The Panel finds no evidence in the record suggesting that
Respondent is commonly known by the <myfeecams.com>
domain name. Complainant asserts that
Respondent has no license or agreement with Complainant authorizing Respondent
to use the MYFREECAMS.COM mark, and the WHOIS information identifies Respondent
as “The Domain Queue c/o Domain Admin.” Thus, Respondent has not established rights
or legitimate interests in the disputed domain name under Policy ¶ 4(c)(ii). See Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb. Forum
Respondent is using the <myfeecams.com>
domain name to resolve to a website displaying links to third-party websites,
some of which are adult-oriented and some of which directly compete with
Complainant. The Panel finds this use 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 Dipaolo v. Genero, FA 203168 (Nat. Arb. Forum
Additionally, typosquatting occurs when a respondent purposefully
includes typographical errors in the mark portion of a disputed domain name to
divert Internet users who commit those typographical errors. The <myfeecams.com>
domain name takes advantage of Internet users who mistype Complainant’s
MYFREECAMS.COM mark by leaving out the letter “r.” The Panel finds that Respondent engaged in
typosquatting by misspelling Complainant’s mark in the disputed domain
name. This is further evidence that
Respondent does not have rights or legitimate interests in the disputed domain
name pursuant to Policy ¶ 4(a)(ii). See LTD
Commodities LLC v. Party Night, Inc., FA
165155 (Nat. Arb. Forum
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
Respondent is using the <myfeecams.com>
domain name to resolve to a website containing links to third-party websites,
some of which directly compete with Complainant. The Panel finds Respondent is using the <myfeecams.com> domain name to
disrupt Complainant’s business by diverting Internet users to Complainant’s competitors. This is evidence of bad faith registration
and use pursuant to Policy ¶ 4(b)(iii). See
Puckett, Individually v. Miller, D2000-0297 (WIPO
The Panel infers
that Respondent receives click-through fees for diverting Internet users to
third-party websites. Because
Respondent’s domain name is confusingly similar to Complainant’s MYFREECAMS.COM
mark, Internet users accessing
Respondent’s disputed domain name may become confused as to Complainant’s
affiliation with the disputed domain name and resulting website. Respondent is attempting to profit from this
confusion. Thus, Respondent’s use of the
<myfeecams.com> domain name constitutes bad faith registration and use
pursuant to Policy ¶ 4(b)(iv). See Allianz of Am. Corp. v. Bond, FA
680624 (Nat. Arb. Forum
Furthermore, the Panel finds that it may consider the
totality of the circumstances when conducting a Policy ¶ 4(a)(iii)
analysis, and that it is not limited to the enumerated factors in Policy ¶
4(b). See Do The
Hustle, LLC v. Tropic Web, D2000-0624 (WIPO
Complainant argues
that, by linking to adult-oriented websites, Respondent is attempting to
tarnish Complainant’s MYFREECAMS.COM mark. The Panel finds that Respondent
registered and is using the <myfeecams.com>
domain name in bad faith pursuant to
Policy ¶ 4(a)(iii). See Wells
Fargo & Co. v. Party Night Inc.,
FA 144647 (Nat. Arb. Forum
The Panel finds that 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 <myfeecams.com> domain name be TRANSFERRED from Respondent to Complainant.
Tyrus R. Atkinson, Jr., Panelist
Dated: June 17, 2009
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