Cybertania Inc v. OX5 CONSULTING L.L.C
Claim Number: FA0904001258994
Complainant is Cybertania Inc (“Complainant”), represented by Leo
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <myfreecam.net>, registered with GoDaddy.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.
Judge Ralph Yachnin as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On
On April 28, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of May 18, 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@myfreecam.net 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 <myfreecam.net> domain name is confusingly similar to Complainant’s MYFREECAMS.COM mark.
2. Respondent does not have any rights or legitimate interests in the <myfreecam.net> domain name.
3. Respondent registered and used the <myfreecam.net> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Cybertania Inc., is the owner of the
MYFREECAMS.COM mark, registered with the United States Patent and Trademark
Office (“USPTO”) (i.e., Reg. No. 3,495,750, issued
Respondent registered the <myfreecam.net>
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.
The Panel finds that Complainant has established its rights
in its MYFREECAMS.COM mark based on its registration of the mark with the USPTO
under Policy ¶ 4(a)(i). See Metro. Life Ins. Co. v. Bonds, FA 873143 (Nat. Arb. Forum
Complainant alleges that the disputed domain name is confusingly similar to Complainant’s MYFREECAMS.COM mark. Complainant argues that Respondent’s domain name incorporates the dominant portion of Complainant’s MYFREECAMS.COM mark. Complainant alleges that the substitution of the generic top-level domain “.net” for “.com” does not negate the finding of confusing similarity under Policy ¶ 4(a)(i). The Panel finds that the top-level of the domain name does not affect the domain name for the purpose of determining whether it is confusingly similar to Complainant’s mark. See Isleworth Land Co. v. Lost in Space, SA, FA 117330 (Nat. Arb. Forum Sept. 27, 2002) (“[I]t is a well established principle that generic top-level domains are irrelevant when conducting a Policy ¶ 4(a)(i) analysis.”); see also Rollerblade, Inc. v. McCrady, D2000-0429 (WIPO June 25, 2000) (finding that the top level of the domain name such as “.net” or “.com” does not affect the domain name for the purpose of determining whether it is identical or confusingly similar). Complainant further alleges that the deletion of the letter “s” from Complainant’s mark fails to adequately distinguish Respondent’s <myfreecam.net> domain name from Complainant’s MYFREECAMS.COM mark. The Panel concludes that the omission of one letter is insufficient to avoid a finding of confusing similarity under Policy ¶ 4(a)(i). See Universal City Studios, Inc. v. HarperStephens, D2000-0716 (WIPO Sept. 5, 2000) (finding that deleting the letter “s” from the complainant’s UNIVERSAL STUDIOS STORE mark did not change the overall impression of the mark and thus made the disputed domain name confusingly similar to it); see also Keystone Publ’g., Inc. v. UtahBrides.com, D2004-0725 (WIPO Nov. 17, 2004) (finding that the <utahwedding.com> domain name was confusingly similar to the complainant’s UTAHWEDDINGS.COM mark because the domain name simply lacked the letter “s”).
Thus, the Panel finds that Complainant’s MYFREECAMS.COM mark and the disputed domain name are confusingly similar under Policy ¶ 4(a)(i).
Complainant has satisfied Policy ¶ 4(a)(i).
Complainant alleges that Respondent lacks rights or
legitimate interests in the <myfreecam.net>
domain name. For the purposes of a
Policy ¶ 4(a)(ii) analysis, Complainant must meet its burden of production for
its prima facie case, and then the
burden is shifted to Respondent.
Respondent must bring themselves within the purview of Policy ¶ 4(c), or
put forward some other reason why it can fairly be said to have relevant rights
or legitimate interests in relation to the domain name in question. In this case, Respondent failed to respond to
the Complaint. Based on Respondent’s
failure to contest the allegations against it, the Panel may accept as true all
reasonable allegations made by Complainant.
Complainant has presented a prima
facie case, and the Panel now chooses to consider whether an evaluation of
all the evidence presented produces any rights or legitimate interests for Respondent
under Policy ¶ 4(c). See Swedish
Match UK Ltd. v. Admin, Domain, FA
873137 (Nat. Arb. Forum Feb. 13, 2007) (finding that once a prima facie case has been established by
the complainant, the burden then shifts to the respondent to demonstrate its
rights or legitimate interests in the disputed domain name pursuant to Policy ¶
4(c)); 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).
Complainant
alleges that Respondent is not authorized to use the MYFREECAMS.COM mark and
therefore has no rights or legitimate interests in the <myfreecam.net> domain name. Complainant further alleges that Respondent
is not commonly known by the disputed domain name. The WHOIS information lists Respondent as
“OX5 Consulting L.L.C.,” which suggests that Respondent is not commonly known
by the disputed domain name. The Panel
finds no evidence in the record to suggest that Respondent is commonly known by
the <myfreecam.net> domain
name under Policy ¶ 4(c)(ii). See Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Nat. Arb. Forum July 17, 2006) (concluding
that the respondent was not commonly known by the <coppertown.com> domain
name where there was no evidence in the record, including the WHOIS
information, suggesting that the respondent was commonly known by the disputed
domain name); see
also M. Shanken Commc’ns v. WORLDTRAVELERSONLINE.COM, FA
740335 (Nat. Arb. Forum
Complainant also alleges that Respondent lacks rights or
legitimate interests in the disputed domain name because Respondent is using
the domain name solely to divert Internet users, which does not constitute a bona fide offering of goods and services
or a noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii). Complainant asserts that Respondent is using
the disputed domain name as a parked website containing various links to
websites competing with Complainant, presumably earning click-through
fees. The Panel finds that this use is
not consistent with a bona fide
offering of goods or services, or a legitimate noncommercial or fair use under
Policy ¶¶ 4(c)(i) or (iii). See Vapor Blast Mfg. Co. v. R & S Tech., Inc., FA 96577 (Nat. Arb. Forum
Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant alleges that Respondent has engaged in bad faith
registration and use pursuant to Policy ¶ 4(b)(iii). Complainant asserts that Respondent is using
a confusingly similar domain name to attract Internet users to a website
containing commercial links to Complainant’s competitors’ websites, and that such
use represents bad faith registration and use under Policy ¶ 4(b)(iii). The Panel finds that appropriating
Complainant’s MYFREECAMS.COM
mark to divert Internet users seeking Complainant’s website to Respondent’s website
at the <myfreecam.net>
domain name
constitutes bad faith registration and use under Policy ¶ 4(b)(iii). See
David Hall Rare Coins v.
Complainant also alleges that Respondent’s use of the
disputed domain name constitutes bad faith based on Respondent’s intentional
attempt to attract Internet users to Respondent’s website for commercial gain
under Policy ¶ 4(b)(iv). The Panel finds
that Respondent engaged in bad faith registration and use pursuant to Policy ¶
4(b)(iv) because Respondent is presumably earning click-through fees based on
the likelihood of confusion between Complainant’s MYFREECAMS.COM mark and Respondent’s <myfreecam.net> domain name and
resolving website. See 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); see also
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 <myfreecam.net> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Ralph Yachnin, Panelist
Justice, Supreme Court, NY (Ret.)
Dated: June 3, 2009
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