Quigo Technologies, Inc. v. Susan Sweet
Claim Number: FA0904001258512
Complainant is Quigo Technologies, Inc. (“Complainant”), represented by James
R. Davis, of Arent Fox LLP,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <quigoblog.com>, registered with Network Solutions, 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 April 20, 2009; the National Arbitration Forum received a hard copy of the Complaint on April 22, 2009.
On April 21, 2009, Network Solutions, Inc. confirmed by e-mail to the National Arbitration Forum that the <quigoblog.com> domain name is registered with Network Solutions, Inc. and that Respondent is the current registrant of the name. Network Solutions, Inc. has verified that Respondent is bound by the Network Solutions, 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 April 24, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of May 14, 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@quigoblog.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On May 20, 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 <quigoblog.com> domain name is confusingly similar to Complainant’s QUIGO mark.
2. Respondent does not have any rights or legitimate interests in the <quigoblog.com> domain name.
3. Respondent registered and used the <quigoblog.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Quigo Technologies, Inc., is the owner of the QUIGO trademark, registered with the United States Patent and Trademark Office (“USPTO”) (i.e., Reg. No. 2,963,331 issued June 21, 2005). The mark has been used by Complainant in connection with the advertising and marketing of computer services and interface software.
Respondent registered the <quigoblog.com> domain name on November 3, 2005 when Complainant inadvertantly failed to renew the registration for the domain name. Respondent registered the domain name and began making commercial use of the <quigoblog.com> domain name. The disputed domain name resolves to a website that displays various hyperlinks to third-party websites that promote Respondent’s websites and to Complainant’s website as well.
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.
The Panel finds that Complainant has established rights in
the QUIGO mark based on its federal registration of the mark with the USPTO
under Policy ¶ 4(a)(i).
Respondent’s domain name incorporates Complainant’s QUIGO
mark in its entirety, with the addition of the word “blog” and the generic
top-level domain name, “.com.”
Complainant alleges that the addition of the word “blog” actually
increases the confusing similarity between the disputed domain name and Complainant’s
QUIGO mark because it describes Complainant’s previous business ventures. The Panel concludes that the addition of the
descriptive term “blog” renders the disputed domain name confusingly similar to
Complainant’s mark under Policy ¶ 4(a)(i), especially since
the descriptive term has an obvious relationship to Complainant’s
business. See Space Imaging LLC v. Brownell,
AF-0298 (eResolution Sept. 22, 2000) (finding confusing similarity where the
respondent’s domain name combines the complainant’s mark with a generic term
that has an obvious relationship to the complainant’s business); see also Kohler
Co. v. Curley, FA 890812 (Nat.
Arb. Forum Mar. 5, 2007) (finding confusing similarity where <kohlerbaths.com>, the
disputed domain name,
contained the complainant’s mark in its entirety adding “the descriptive term
‘baths,’ which is an obvious allusion to complainant’s business.”). Complainant also alleges that the mere
addition of a generic top-level domain name is insufficient to differentiate
the <quigoblog.com> domain name from
Complainant’s mark. The Panel concludes
that the top-level of the domain name, “.com,” does not affect the domain name
for the purposes of determining whether it is confusingly similar to
Complainant’s mark. Therefore, the Panel
finds that the disputed domain name is confusingly similar to Complainant’s
QUIGO mark under Policy ¶ 4(a)(i). See
Jerry
Damson, Inc. v.
The Panel finds that Policy ¶ 4(a)(i) has been satified.
In the beginning, Complainant must make a prima facie showing that Respondent lacks rights and legitimate interests in the disputed domain name. The burden then shifts to Respondent and Respondent must establish that it has rights or legitimate interests in the disputed domain name. The Panel finds that Complainant has sufficiently made its prima facie showing under Policy ¶ 4(a)(ii). See Compagnie Generale des Matieres Nucleaires v. Greenpeace Int’l, D2001-0376 (WIPO May 14, 2001) (“Proving that the Respondent has no rights or legitimate interests in respect of the Domain Name requires the Complainant to prove a negative. For the purposes of this sub paragraph, however, it is sufficient for the Complainant to show a prima facie case and the burden of proof is then shifted on to the shoulders of Respondent. In those circumstances, the common approach is for respondents to seek to bring themselves within one of the examples of paragraph 4(c) or put forward some other reason why they can fairly be said to have a relevant right or legitimate interests in respect of the domain name in question.”); 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’s confusingly similar <quigoblog.com> domain name resolves to a website that displays various hyperlinks to third-party websites that promote Respondent’s websites and to Complainant’s website as well. The Panel presumes that Respondent receives click-through fees for such hyperlinks. Accordingly, the Panel finds that the use of the aforementioned hyperlinks is not a bona fide offering of goods and services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use 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 Meyerson v. Speedy Web, FA 960409 (Nat. Arb. Forum May 25, 2007) (finding that where a respondent has failed to offer any goods or services on its website other than links to a variety of third-party websites, it was not using a domain name in connection with a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii)).
Furthermore, Respondent is listed in the WHOIS information
as “Susan Sweet,” which does not indicate
that Respondent is commonly known by the <quigoblog.com>
domain name. Respondent has not offered any evidence to
indicate otherwise. 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 Wells Fargo & Co. v. Onlyne
Corp. Services11, Inc., FA 198969 (Nat.
Arb. Forum Nov. 17, 2003) (“Given the WHOIS contact information for the
disputed domain [name], one can infer that Respondent, Onlyne Corporate
Services11, is not commonly known by the name ‘welsfargo’ in any derivation.”).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Respondent’s website, which resolves from the confusingly
similar <quigoblog.com> domain name, displays various hyperlinks to third-party websites that
promote Respondent’s websites and to Complainant’s website as well. The Panel finds that this disrupts
Complainant’s business and is evidence of bad faith registration and use under
Policy ¶ 4(b)(iii). See Am.
Airlines, Inc. v.
In addition, the Panel finds that Respondent is using the
confusingly similar <quigoblog.com> domain name to promote its own website as
well as Complainant’s website, and is creating a likelihood of confusion as to
Complainant’s affiliation with the disputed domain name. Thus, the Panel finds
that this is evidence of bad faith registration and use under Policy ¶ 4(b)(iv), because Respondent is trading off the goodwill
surrounding Complainant’s mark. See
Am. Online, Inc. v. Fu,
D2000-1374 (WIPO Dec. 11, 2000) (finding that the respondent violated Policy ¶
4(b)(iv) by displaying the complainant’s mark on its website and offering
identical services as those offered by the complainant); see also Perot Sys.
Corp. v. Perot.net, FA 95312 (Nat. Arb. Forum Aug. 29, 2000) (finding bad
faith where the domain name in question is obviously connected with the complainant’s
well-known marks, thus creating a likelihood of confusion strictly for
commercial gain).
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 <quigoblog.com> domain name be TRANSFERRED from Respondent to Complainant.
Tyrus R. Atkinson, Jr., Panelist
Dated: June 3, 2009
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