Dun & Bradstreet Corporation v. Host Master
Claim Number: FA0908001280137
Complainant is Dun
& Bradstreet Corporation (“Complainant”),
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <dbn.com>, registered with Enom, Inc.
The undersigned certifies that he acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.
James A. Crary as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on August 18, 2009; the National Arbitration Forum received a hard copy of the Complaint on August 19, 2009.
On August 18, 2009, Enom, Inc. confirmed by e-mail to the National Arbitration Forum that the <dbn.com> domain name is registered with Enom, Inc. and that Respondent is the current registrant of the name. Enom, Inc. has verified that Respondent is bound by the Enom, 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 September 1, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of September 21, 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@dbn.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On September 23, 2009, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed James A. Crary 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 <dbn.com> domain name is confusingly similar to Complainant’s DNB.COM and WWW.DNB.COM marks.
2. Respondent does not have any rights or legitimate interests in the <dbn.com> domain name.
3. Respondent registered and used the <dbn.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Dun & Bradstreet Corporation, is the owner
of the WWW.DNB.COM mark, registered with the
United States Patent and Trademark Office (“USPTO”) (Reg. No. 2,340,225 issued
April 11, 2000), the Office for Harmonization in the Internal Market (“OHIM”)
(Reg. No 1,116,771 issued March 24, 1999), and other governmental trademark
authorities throughout the world.
Furthermore, Complainant is the owner of the DNB.COM mark, which is
registered with the Taiwan Patent and Trademark Office (“TPTO”) (Reg. No.
135,288 issued January 1, 2001).
Complainant is the world’s leading source of credit reporting, business
information, and worldwide financial services.
Respondent registered the <dbn.com> domain
name on June 26, 2001. The disputed
domain name resolves to a website featuring click-through links that feature
Complainant’s financial products and services, including “paydex” and “duns.” The disputed domain name’s resolving website
also contains click-through links that further resolve to websites where one
can obtain credit scores, credit reports, and other services that are in direct
competition with Complainant’s business.
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.
Complainant submits evidence of its registrations for the WWW.DNB.COM mark with the USPTO (Reg. No. 2,340,225 issued April 11, 2000) and the OHIM (Reg. No. 1,116,771 issued March 24, 1999). Complainant also offers evidence of its registration of its DNB.COM mark with the TPTO (Reg. No. 135,288 issued January 1, 2001). The Panel finds that this evidence is sufficient to establish Complainant’s rights in the WWW.DNB .COM and DNB.COM marks for the purposes of Policy ¶ 4(a)(i). See AOL LLC v. AIM Profiles, FA 964479 (Nat. Arb. Forum May 20, 2007) (“Complainant has established rights in the AIM mark through its use and federal trademark registrations for purposes of Policy ¶ 4(a)(i).”). Moreover, the Panel finds that it is not necessary for Complainant to have registered its marks in the country of Respondent’s residence. See 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).
Complainant contends that Respondent’s <dbn.com> domain name is confusingly similar to its WWW.DNB.COM and DNB.COM marks under Policy ¶ 4(a)(i). The disputed domain name incorporates the three distinctive letters of Complainant’s DNB mark, “d,” “n,” and “b,” and merely transposes the last two letters. The Panel finds that this juxtaposition of the letters “n” and “b” and the affixation of the generic top-level domain “.com” are insufficient to negate a finding of confusing similarity under Policy ¶ 4(a)(i). Thus, the Panel finds that Respondent’s <dbn.com> domain name is confusingly similar to Complainant’s WWW.DNB.COM and DNB.COM marks under Policy ¶ 4(a)(i). See GMAC LLC v. indian domainer, FA 1262254 (Nat. Arb. Forum July 1, 2009) (finding that the respondent’s <gmacsf.com> domain name was confusingly similar to the complainant’s GMAC mark because “. . . Respondent merely transposed the “f” and “s” in the disputed domain name.”); 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).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(i).
Complainant has asserted that Respondent lacks rights and legitimate interests in the disputed domain name. Complainant must successfully assert a sufficient prima facie case supporting its allegations before Respondent receives the burden of demonstrating its rights or legitimate interests. The Panel finds that Complainant has met its burden, and therefore Respondent must demonstrate its rights or legitimate interests under Policy ¶ 4(c). See Clerical Med. Inv. Group Ltd. v. Clericalmedical.com, D2000-1228 (WIPO Nov. 28, 2000) (finding that, under certain circumstances, the mere assertion by the complainant that the respondent has no right or legitimate interest is sufficient to shift the burden of proof to the respondent to demonstrate that such a right or legitimate interest does exist). However, Respondent has failed to respond to the allegations against it. Thus, the Panel may presume that Respondent lacks rights and legitimate interests in the disputed domain name. See 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).”). The Panel will, however, examine the record to determine whether it reveals any rights or legitimate interests in the disputed domain name under Policy ¶ 4(c).
The disputed domain name resolves to a website featuring click-through advertisement links for credit scores, credit reports, and other websites that offer financial services that are similar to those offered by Complainant. Some of the links on the disputed domain name’s resolving website include “paydex” and “duns,” which specifically refer to the financial services that Complainant offers. The Panel presumes that Respondent is receiving click-through fees through the use of said sponsored links. Therefore, the Panel finds that Respondent has failed to use the <dbn.com> domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii), respectively. See 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)); see also St. Lawrence Univ. v. Nextnet Tech, FA 881234 (Nat. Arb. Forum Feb. 21, 2007) (holding that using an identical or confusingly similar domain name to earn click-through fees via sponsored links to a complainant’s competitors 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)).
According to the pertinent WHOIS information, Respondent registered the disputed domain name under the name “Host Master,” which has no apparent relation to the disputed domain name. Moreover, there is no evidence in the record to suggest otherwise. Thus, the Panel finds that Respondent is not commonly known by the <dbn.com> domain name under 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 St. Lawrence Univ. v. Nextnet Tech, FA 881234 (Nat. Arb. Forum Feb. 21, 2007) (concluding a respondent has no rights or legitimate interests in a disputed domain name where there was no evidence in the record indicating that the respondent was commonly known by the disputed domain name).
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 WWW.DNB.COM or DNB.COM marks by juxtaposing the
letters “n” and “b.” The Panel finds that Respondent’s engagement in the
practice of typosquatting is further evidence that Respondent lacks rights and
legitimate interests in the <dbn.com> domain name under Policy ¶
4(a)(ii). See LTD Commodities
LLC v. Party Night, Inc., FA
165155 (Nat. Arb. Forum
Aug. 14, 2003) (finding that the <ltdcommadities.com>,
<ltdcommmodities.com>, and <ltdcommodaties.com> domain
names were intentional misspellings of Complainant's LTD COMMODITIES mark
and this “‘typosquatting’ is evidence that Respondent lacks rights or
legitimate interests in the disputed domain names”); see also Microsoft
Corp. v. Domain Registration
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant contends that Respondent is using a confusingly similar domain name, which was registered on June 26, 2001, to attract Internet users to Respondent’s website featuring links that further resolve to the websites of Complainant’s competitors. The Panel concludes that Respondent’s misappropriation of Complainant’s WWW.DNB.COM and DNB.COM marks to divert Internet users to Complainant’s competitors likely disrupts Complainant’s business and thus, constitutes bad faith registration and use 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 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).”).
Complainant contends that Respondent is intentionally attempting to attract Internet users to its confusingly similar domain name for financial gain by creating a likelihood of confusion with Complainant’s WWW.DNB.COM and DNB.COM marks. The disputed domain name’s resolving website contains click-through links which promote Complainant’s competitors in the financial services industry. The Panel presumes that Respondent is profiting from such use. Therefore, the Panel concludes that Respondent has engaged in bad faith registration and use of the disputed domain name under Policy ¶ 4(b)(iv). See Velv, LLC v. AAE, FA 677922 (Nat. Arb. Forum May 25, 2006) (finding that the respondent’s use of the <arizonashuttle.net> domain name, which contained the complainant’s ARIZONA SHUTTLE mark, to attract Internet traffic to the respondent’s website offering competing travel services violated Policy ¶ 4(b)(iv)); see also 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).
Complainant contends that Respondent is engaging in typosquatting because Respondent is taking advantage of a common misspelling of Complainant’s WWW.DNB.COM and DNB.COM marks by diverting unknowing Internet users to Respondent’s website. Thus, the Panel finds this as evidence of bad faith registration and use of the <dbn.com> domain name under 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 Microsoft Corp. v. Domain Registration Philippines, FA 877979 (Nat. Arb. Forum Feb. 20, 2007) (finding bad faith registration and use of the <microssoft.com> domain name as it merely misspelled the complainant’s MICROSOFT mark).
The Panel finds that Complainant has established 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 <dbn.com> domain name be TRANSFERRED from Respondent to Complainant.
James A. Crary, Panelist
Dated: October 6, 2009
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