Romantic Tours, Inc. v. Ilia Zavialov
Claim Number: FA0906001268898
Complainant is Romantic
Tours, Inc. (“Complainant”), represented by Joseph J. Weissman, of Johnson, Pope, Bokor, Ruppel, & Burns,
LLP,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <hotrusianbride.com>, 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 June 24, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of July 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@hotrusianbride.com 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 <hotrusianbride.com> domain name is confusingly similar to Complainant’s HOT RUSSIAN BRIDES mark.
2. Respondent does not have any rights or legitimate interests in the <hotrusianbride.com> domain name.
3. Respondent registered and used the <hotrusianbride.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Romantic Tours, Inc., specializes in introducing
men to Russian and Ukrainian women for dating and possible marriage through the
<hotrussianbrides.com> domain name and the resolving website. Complainant is the owner of the HOT RUSSIAN
BRIDES mark, registered with the United States Patent and Trademark Office
(“USPTO”) (Reg. No. 3,159,522 issued
Respondent registered the <hotrusianbride.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 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’s registration of the HOT
RUSSIAN BRIDES mark with the USPTO confers sufficient rights in the mark upon
Complainant pursuant to Policy ¶ 4(a)(i).
Respondent’s <hotrusianbride.com> domain name
differs from Complainant’s mark only in that it removes an “s” from the word
“RUSSIAN,” uses the singular term “BRIDE” instead of “BRIDES,” and adds the
generic top-level domain “.com.” The
Panel finds that Respondent’s alterations fail to sufficiently distinguish the disputed
domain name from Complainant’s HOT RUSSIAN BRIDES mark. Instead, Respondent’s disputed domain name merely
creates a misspelling of Complainant’s mark.
Thus, the Panel finds that Respondent’s <hotrusianbride.com>
domain name is confusingly similar to Complainant’s HOT RUSSIAN BRIDES mark
under Policy ¶ 4(a)(i). See The Royal Bank of Scotland Grp. plc et
al. v. Demand Domains, FA 714952 (Nat. Arb. Forum Aug. 2, 2006) (“The Panel
finds that merely by misspelling Complainants’ mark, Respondent has not
sufficiently differentiated the <privelage.com> domain name from the
PRIVILEGE mark under Policy ¶ 4(a)(i).”); 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”); see also Reese
v. Morgan, FA 917029 (Nat. Arb. Forum
Complainant has satisfied Policy ¶ 4(a)(i).
Complainant contends that Respondent does not have any
rights or legitimate interests in the disputed domain name. Once a prima
facie case has been established by Complainant, the burden then shifts to
Respondent to demonstrate its rights or legitimate interests in the disputed
domain name pursuant to Policy ¶ 4(c).
The Panel finds that Complainant has adequately established a prima facie case in these
proceedings. Since Respondent has failed
to respond to the allegations against it, the Panel may assume that Respondent
lacks any rights or legitimate interests in the disputed domain name. See
Intel Corp. v. Macare, FA 660685 (Nat. Arb. Forum Apr. 26, 2006)
(finding the “complainant must first make a prima facie case that [the]
respondent lacks rights and legitimate interests in the disputed domain names
under Policy ¶ 4(a)(ii), and then the burden shifts to [the] respondent to show
it does have rights or legitimate interests.”); see also Am. Express Co.
v. Fang Suhendro, FA 129120 (Nat. Arb.
Forum
Complainant contends that Respondent is not authorized to use Complainant’s HOT RUSSIAN BRIDES mark, and that Respondent is not commonly known by the <hotrusianbride.com> domain name. The WHOIS information lists the registrant as “Ilia Zavialov” and there is no evidence in the record to suggest otherwise. Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii). See Braun Corp. v. Loney, FA 699652 (Nat. Arb. Forum July 7, 2006) (concluding that the respondent was not commonly known by the disputed domain names where the WHOIS information, as well as all other information in the record, gave no indication that the respondent was commonly known by the disputed domain names, and the complainant had not authorized the respondent to register a domain name containing its registered mark); see also 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).
Respondent’s <hotrusianbride.com> domain name previously resolved to a website that featured click-through links and advertisements for Complainant’s competitors. The Panel finds that Respondent’s previous use of the <hotrusianbride.com> domain name to redirect Internet users to Complainant’s competitors, presumably for financial gain, did not constitute a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). See Expedia, Inc. v. Compaid, FA 520654 (Nat. Arb. Forum Aug. 30, 2005) (finding that the respondent’s use of the <expediate.com> domain name to redirect Internet users to a website featuring links to travel services that competed with the complainant was not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii)); see also Metro. Life Ins. Co. v. Bonds, FA 873143 (Nat. Arb. Forum Feb. 16, 2007) (concluding that using a confusingly similar domain name to divert Internet users to competing websites does not represent 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)).
Currently, the disputed domain name does not resolve to an active website. The only message displayed at the resolving website from the <hotrusianbride.com> domain name is, “Server Default page.” The Panel finds that Respondent has failed to use the disputed domain name in connection with substantive content and that such use does not constitute a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). See Broadcom Corp. v. Wirth, FA 102713 (Nat. Arb. Forum Jan. 11, 2002) (finding that the respondent’s use of the disputed domain name to display an “under construction” page did not constitute a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii)); see also Thermo Electron Corp. v. Xu, FA 713851 (Nat. Arb. Forum July 12, 2006) (finding that the respondent’s non-use of the disputed domain names demonstrates that the respondent is not using the disputed domain names for 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, Complainant contends that Respondent has
engaged in the practice of typosquatting.
Respondent is taking advantage of Internet users that are attempting to
reach Complainant, but mistakenly misspelling Complainant’s HOT RUSSIAN BRIDES
mark. The Panel finds that Respondent’s
engagement in the practice of typosquatting is evidence that Respondent lacks
rights and legitimate interests in the <hotrusianbride.com> domain
name under Policy ¶ 4(a)(ii). See LTD
Commodities LLC v. Party Night, Inc., FA
165155 (Nat. Arb. Forum
Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant contends that Respondent’s previous use of the <hotrusianbride.com> domain name, diverting Internet users to the websites of Complainant’s competitors, presumably disrupted Complainant’s business. The Panel finds that Respondent registered and has used the disputed domain name in bad faith under Policy ¶ 4(b)(iii). See 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)); see also David Hall Rare Coins v. Tex. Int’l Prop. Assocs., FA 915206 (Nat. Arb. Forum Apr. 9, 2007) (finding that the respondent registered and used the disputed domain name in bad faith pursuant to Policy ¶ 4(b)(iii) because respondent used the disputed domain name to advertise goods and services of complainant’s competitors, thereby disrupting the complainant’s business).
The Panel finds that Respondent also engaged in bad faith registration and use under Policy ¶ 4(b)(iv) by intentionally creating a likelihood of confusion for commercial gain as to Complainant’s affiliation with Respondent’s confusingly similar domain name and the prior 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 AOL LLC v. AIM Profiles, FA 964479 (Nat. Arb. Forum May 20, 2007) (finding that the respondent registered and used the disputed domain name in bad faith pursuant to Policy ¶ 4(b)(iv) because the respondent was commercially gaining from the likelihood of confusion between the complainant’s AIM mark and the competing instant messaging products and services advertised on the respondent’s website which resolved from the disputed domain name).
Complainant contends that Respondent is currently using the disputed domain name in bad faith based on Respondent’s failure to make an active use of the disputed domain name. The Panel concludes that Respondent’s passive holding of the <hotrusianbride.com> domain name is evidence of bad faith registration and use under Policy ¶ 4(a)(iii). See DCI S.A. v. Link Commercial Corp., D2000-1232 (WIPO Dec. 7, 2000) (concluding that the respondent’s [failure to make an active use] of the domain name satisfies the requirement of ¶ 4(a)(iii) of the Policy); see also Clerical Med. Inv. Group Ltd. v. Clericalmedical.com, D2000-1228 (WIPO Nov. 28, 2000) (finding that merely holding an infringing domain name without active use can constitute use in bad faith).
Finally, Complainant alleges that typosquatting is itself
evidence of bad faith registration and use under Policy ¶ 4(a)(iii). The Panel agrees and finds that Respondent’s <hotrusianbride.com>
domain name is merely a typosquatted version of Complainant’s HOT RUSSIAN
BRIDES mark, and that such typosquatting constitutes bad faith registration and
use under Policy ¶ 4(a)(iii). See Microsoft Corp. v. Domain
Registration
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 <hotrusianbride.com> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Ralph Yachnin, Panelist
Justice, Supreme Court, NY(Ret.)
Dated: July 30, 2009
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page
National
Arbitration Forum