Lavalife Corp. v. Otag, Dogu Can a/k/a Otag, D C
Claim Number: FA0906001269218
Complainant is Lavalife
Corp. (“Complainant”), represented by CitizenHawk, Inc.,
REGISTRAR AND DISPUTED DOMAIN
NAMES
The domain names at issue are <laval8fe.com>, <laval9fe.com>, <lavalif3.com>, <lavalif4.com>, <lavalifd.com>, <lavalifr.com>, <lavalire.com>, <lavwlife.com>, and <lavzlife.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.
James A. Carmody, Esq., as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on June 18, 2009; the National Arbitration Forum received a hard copy of the Complaint on June 19, 2009.
On June 19, 2009, Godaddy.com, Inc. confirmed by e-mail to the National Arbitration Forum that the <laval8fe.com>, <laval9fe.com>, <lavalif3.com>, <lavalif4.com>, <lavalifd.com>, <lavalifr.com>, <lavalire.com>, <lavwlife.com>, and <lavzlife.com> domain names are registered with Godaddy.com, Inc. and that Respondent is the current registrant of the names. Godaddy.com, Inc. has verified that Respondent is bound by the Godaddy.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 June 26, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of July 16, 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@laval8fe.com, postmaster@laval9fe.com, postmaster@lavalif3.com, postmaster@lavalif4.com, postmaster@lavalifd.com, postmaster@lavalifr.com, postmaster@lavalire.com, postmaster@lavwlife.com, and postmaster@lavzlife.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On July 23, 2009, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed James A. Carmody, Esq., 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 names be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <laval8fe.com>, <laval9fe.com>, <lavalif3.com>, <lavalif4.com>, <lavalifd.com>, <lavalifr.com>, <lavalire.com>, <lavwlife.com>, and <lavzlife.com> domain names are confusingly similar to Complainant’s LAVALIFE mark.
2. Respondent does not have any rights or legitimate interests in the <laval8fe.com>, <laval9fe.com>, <lavalif3.com>, <lavalif4.com>, <lavalifd.com>, <lavalifr.com>, <lavalire.com>, <lavwlife.com>, and <lavzlife.com> domain names.
3. Respondent registered and used the <laval8fe.com>, <laval9fe.com>, <lavalif3.com>, <lavalif4.com>, <lavalifd.com>, <lavalifr.com>, <lavalire.com>, <lavwlife.com>, and <lavzlife.com> domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Lavalife Corp., is an interactive dating service which provides technology-based meeting services. Complainant began operation in 1987 under the LAVALIFE mark. The Complainant holds multiple trademark registrations with the United States Patent and Trademark Office (“USPTO”) for its LAVALIFE mark (i.e., Reg. No. 2,646,908 issued November 11, 2005).
Respondent registered the disputed domain names no earlier than January 10, 2006. The disputed domain names resolve to the website of one of 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.
Preliminary Issue:
Multiple Respondents
In the instant proceedings, Complainant has alleged that the entities which control the domain names at issue are effectively controlled by the same person and/or entity, which is operating under several aliases. Paragraph 3(c) of the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”) provides that a “complaint may relate to more than one domain name, provided that the domain names are registered by the same domain name holder.” The Panel finds that Complainant has presented sufficient evidence that the disputed domain names are controlled by the same entity and thus determines to proceed to a decision on the merits in this case.
Complainant has registered the LAVALIFE mark with the USPTO. The Panel finds that Complainant has established rights in the LAVALIFE mark pursuant to Policy ¶ 4(a)(i) through its USPTO registration. See Thermo Electron Corp. v. Xu, FA 713851 (Nat. Arb. Forum July 12, 2006) (finding that the complainants had established rights in marks where the marks were registered with a trademark authority; see also Morgan Stanley v. Fitz-James, FA 571918 (Nat. Arb. Forum Nov. 29, 2005) (finding from a preponderance of the evidence that the complainant had registered its mark with national trademark authorities, the Panel determined that “such registrations present a prima facie case of Complainant’s rights in the mark for purposes of Policy ¶ 4(a)(i).”); see also Koninklijke KPN N.V. v. Telepathy Inc., D2001-0217 (WIPO May 7, 2001) (finding that the Policy does not require that the mark be registered in the country in which the respondent operates; therefore it is sufficient that the complainant can demonstrate a mark in some jurisdiction).
Respondent’s <laval8fe.com>, <laval9fe.com>, <lavalif3.com>, <lavalif4.com>, <lavalifd.com>, <lavalifr.com>, <lavalire.com>, <lavwlife.com>, and <lavzlife.com> domain names are confusingly similar to Complainant’s LAVALIFE mark. The disputed domain names contain common misspellings and the addition of the top-level domain “.com.” The Panel finds common misspellings and the addition of the top-level domain fail to distinguish the disputed domain names from Complainant’s mark under Policy ¶ 4(a)(i). Therefore, the Panel finds Respondent’s disputed domain name is confusingly similar to Complainant’s mark pursuant to Policy ¶ 4(a)(i). See Internet Movie Database, Inc. v. Temme, FA 449837 (Nat. Arb. Forum May 24, 2005) (finding that the respondent’s disputed domain names were confusingly similar to the complainant’s mark because the disputed domain names were common misspellings of the mark involving keys that were adjacent to the current keys comprising the complainant’s mark); see also Marriott Int'l, Inc. v. Seocho, FA 149187 (Nat. Arb. Forum Apr. 28, 2003) (finding that the respondent's <marrriott.com> domain name was confusingly similar to the complainant's MARRIOTT mark); see also Trip Network Inc. v. Alviera, FA 914943 (Nat. Arb. Forum Mar. 27, 2007) (concluding that the affixation of a gTLD to a domain name is irrelevant to a Policy ¶ 4(a)(i) analysis).
The Panel finds Policy ¶ 4(a)(i) has been satisfied.
Complainant has alleged that Respondent does not have rights or legitimate interests in the <laval8fe.com>, <laval9fe.com>, <lavalif3.com>, <lavalif4.com>, <lavalifd.com>, <lavalifr.com>, <lavalire.com>, <lavwlife.com>, and <lavzlife.com> domain names. Once Complainant makes a prima facie case in support of its allegations, the burden shifts to Respondent to prove that it does have rights or legitimate interests pursuant to Policy ¶ 4(a)(ii). The Panel finds that Complainant has made a sufficient prima facie case. Due to Respondent’s failure to respond to the Complaint, the Panel may assume that Respondent does not have rights or legitimate interests in the disputed domain names. However, the Panel will examine the record to determine whether Respondent has rights or legitimate interests in the disputed domain names under Policy ¶ 4(c). 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 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.”).
Respondent uses the disputed domain names to resolve to Complainant’s competitor’s website. The Panel finds Respondent’s use of the disputed domain names is not a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use of the disputed domain names under Policy ¶ 4(c)(iii). See Coryn Group, Inc. v. Media Insight, FA 198959 (Nat. Arb. Forum Dec. 5, 2003) (finding that the respondent was not using the domain names for a bona fide offering of goods or services nor a legitimate noncommercial or fair use because the respondent used the names to divert Internet users to a website that offered services that competed with those offered by the complainant under its marks); see also Glaxo Group Ltd. v. WWW Zban, FA 203164 (Nat. Arb. Forum Dec. 1, 2003) (finding that the respondent was not using the domain name within the parameters of Policy ¶ 4(c)(i) or (iii) because the respondent used the domain name to take advantage of the complainant's mark by diverting Internet users to a competing commercial site).
Complainant asserts that Respondent has never been
authorized to use the LAVALIFE mark.
Respondent has failed to provide evidence that it is commonly known by
the disputed domain names. The WHOIS
information lists Respondent as “Otag, Dogu
In addition, Complainant contends Respondent’s use of the
disputed domain names, a common misspelling of Complainant’s LAVALIFE mark,
constitutes typosquatting. The Panel
finds that Respondent’s use of the disputed domain names to redirect Internet
users seeking Complainant’s online presence is further evidence that Respondent
fails to establish rights or legitimate interests in the disputed domain names
pursuant to Policy ¶ 4(a)(ii). See Microsoft Corp. v. Domain
Registration
The Panel finds Policy ¶ 4(a)(i) has been satisfied.
Respondent uses the <laval8fe.com>, <laval9fe.com>, <lavalif3.com>, <lavalif4.com>, <lavalifd.com>, <lavalifr.com>, <lavalire.com>, <lavwlife.com>, and <lavzlife.com> domain names to resolve to a website of Complainant’s competitors. The Panel finds Respondent’s use of the confusingly similar disputed domain names for this purpose constitutes a disruption of Complainant’s business, which is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iii). See St. Lawrence Univ. v. Nextnet Tech, FA 881234 (Nat. Arb. Forum Feb. 21, 2007) (“This Panel concludes that by redirecting Internet users seeking information on Complainant’s educational institution to competing websites, Respondent has engaged in bad faith registration and use pursuant to Policy ¶ 4(b)(iii).”); see also Disney Enters., Inc. v. Noel, FA 198805 (Nat. Arb. Forum Nov. 11, 2003) (“Respondent registered a domain name confusingly similar to Complainant's mark to divert Internet users to a competitor's website. It is a reasonable inference that Respondent's purpose of registration and use was to either disrupt or create confusion for Complainant's business in bad faith pursuant to Policy ¶¶ 4(b)(iii) [and] (iv).”).
The Panel presumes Respondent receives click-through fees by
connecting to a Complainant’s competitor’s website. Respondent is using the confusingly similar
disputed domain names to profit from Internet users’ confusion as to
Complainant’s affiliation with the resolving website. The Panel finds Respondent’s use of the
disputed domain names constitutes bad faith registration and use under Policy ¶
4(b)(iv). See AOL LLC v. iTech Ent,
LLC, FA 726227 (Nat. Arb. Forum July 21, 2006) (finding that the respondent
took advantage of the confusing similarity between the <theotheraol.com>
and <theotheraol.net> domain names and the complainant’s AOL mark, which
indicates bad faith registration and use pursuant to Policy ¶ 4(b)(iv)); see also Maricopa Cmty. Coll. Dist.
v. College.com, LLC, FA 536190 (Nat. Arb. Forum Sept. 22, 2005) (“The Panel
infers that Respondent receives click-through fees for diverting Internet users
to a competing website. Because
Respondent’s domain name is identical to Complainant’s
Furthermore, Respondent has engaged in typosquatting through the use of the disputed domain names, which are common misspellings of Complainant’s LAVALIFE mark. Therefore, the Panel finds Respondent’s engagement in the practice of typosquatting additionally constitutes bad faith registration and use pursuant to Policy ¶ 4(a)(iii). See Canadian Tire Corp. v. domain adm’r no.valid.email@worldnic.net 1111111111, D2003-0232 (WIPO May 22, 2003) (finding the respondent registered and used the domain name in bad faith because the respondent “created ‘a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the Respondent’s web site or location’. . . through Respondent’s persistent practice of ‘typosquatting’”); see also K.R. USA, INC. v. SO SO DOMAINS, FA 180624 (Nat. Arb. Forum Sept. 18, 2003) (finding that the respondent’s registration and use of the <philadelphiaenquirer.com> and <tallahassedemocrat.com> domain names capitalized on the typographical error of Internet users seeking the complainant's THE PHILADELPHIA INQUIRER and TALLAHASSEE DEMOCRAT marks, evincing typosquatting and bad faith pursuant to Policy ¶ 4(a)(iii)).
The Panel finds 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 <laval8fe.com>, <laval9fe.com>, <lavalif3.com>, <lavalif4.com>, <lavalifd.com>, <lavalifr.com>, <lavalire.com>, <lavwlife.com>, and <lavzlife.com> domain names be TRANSFERRED from Respondent to Complainant.
James A. Carmody, Esq., Panelist
Dated: August 4, 2009
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