AOL LLC v. Ian Rollinson
Claim Number: FA0909001285335
Complainant is AOL LLC (“Complainant”), represented by James
R. Davis, of Arent Fox LLP,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <ma0quest.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.
The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on September 18, 2009; the National Arbitration Forum received a hard copy of the Complaint on September 22, 2009.
On September 21, 2009, Godaddy.com, Inc. confirmed by e-mail to the National Arbitration Forum that the <ma0quest.com> domain name is registered with Godaddy.com, Inc. and that Respondent is the current registrant of the name. 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 September 22, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of October 13, 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@ma0quest.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On October 16, 2009, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed the Honorable Charles K. McCotter, Jr. (Ret.) 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 <ma0quest.com> domain name is confusingly similar to Complainant’s MAPQUEST mark.
2. Respondent does not have any rights or legitimate interests in the <ma0quest.com> domain name.
3. Respondent registered and used the <ma0quest.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, AOL, LLC, operates a business offering a variety of web products and services. Particular to this case, Complainant operates an online map and road direction service under its MAPQUEST mark. Complainant holds multiple trademark registrations with the United States Patent and Trademark Office (“USPTO”) for its MAPQUEST mark (e.g., Reg. No. 2,129,378 issued January 13, 1998).
Respondent, Ian Rollinson, registered the disputed domain name on May 28, 2004. Respondent’s disputed domain name resolves to a website that displays links to third-party websites, including websites 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.
Complainant contends it has established rights in the
MAPQUEST mark. Complainant asserts it holds multiple trademark registrations
with the United States Patent and Trademark Office (“USPTO”) for its MAPQUEST
mark (e.g., Reg. No. 2,129,378 issued January 13, 1998). Therefore, the Panel finds a trademark
registration with the USPTO is sufficient to establish rights in a mark under
Policy ¶ 4(a)(i) and thus Complainant has met its burden demonstrating rights
in its MAPQUEST mark. See Microsoft Corp. v. Burkes, FA
652743
(Nat. Arb. Forum Apr. 17, 2006) (“Complainant has established rights in the
MICROSOFT mark through registration of the mark with the USPTO.”); see also Reebok Int’l Ltd. v.
The disputed domain name incorporates Complainant’s MAPQUEST mark with the substitution of the number “0” for the letter “p,” and the addition of the generic top-level domain “.com.” The Panel finds substituting a number for a letter, especially when the two are adjacent on the standard QWERTY keyboard, does not negate a finding of confusing similarity under Policy ¶ 4(a)(i). Furthermore, the addition of “.com” is irrelevant for the purposes of a Policy ¶ 4(a)(i) analysis because a top-level domain is a requirement of every domain name. Thus, the Panel finds Respondent’s disputed domain name is confusingly similar to Complainant’s mark under Policy ¶ 4(a)(i). See Oxygen Media, LLC v. Primary Source, D2000-0362 (WIPO June 19, 2000) (finding that the domain name <0xygen.com>, with zero in place of letter “O,” “appears calculated to trade on Complainant’s name by exploiting likely mistake by users when entering the url address”); 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 Complainant has satisfied Policy ¶ 4(a)(i).
Complainant has alleged that Respondent lacks rights and legitimate interests in the <ma0quest.com> domain name. Based upon the allegations made in the Complaint, the Panel finds that Complainant has established a prima facie case pursuant to Policy ¶ 4(a)(ii) and the burden of proof now shifts to Respondent. Since Respondent has not responded to the Complaint, the Panel will examine the record to determine if Respondent has rights or legitimate interests pursuant to Policy ¶ 4(c). See Mason Cos., Inc. v. Chan, FA 1216166 (Nat. Arb. Forum Sept. 4, 2008) (“The Panel finds that Complainant has made a prima facie showing that Respondent lacks rights or legitimate interests in the [disputed domain] name. Thus, the burden shifts to Respondent to demonstrate that it does have such rights or interests.”); 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).
The WHOIS domain name registration information for the <ma0quest.com> domain name identifies
Respondent as “Ian Rollinson,” which does not reflect Respondent is commonly
known by the disputed domain name. In
addition, Complainant has stated Respondent is not authorized to use
Complainant’s MAPQUEST mark in any manner.
Therefore, based on the evidence present in the record, the Panel
concludes 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
Respondent is using the disputed domain name to display links to third-party websites offering various maps and related services in competition with Complainant. Thus, Respondent’s use of the disputed domain name does not constitute a bona fide offering of goods or services under Policy ¶ 4(c)(i), and is not legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See Persohn v. Lim, FA 874447 (Nat. Arb. Forum Feb. 19, 2007) (finding that the respondent was not using a disputed domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use by redirecting Internet users to a commercial search engine website with links to multiple websites that may be of interest to the complainant’s customers and presumably earning “click-through fees” in the process); 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)).
Furthermore, Respondent’s <ma0quest.com>
domain name is comprised of a single substitution misspelling of Complainant’s
mark by replacing the letter “p” with the number “0.” The Panel notes these keys are adjacent to one
another on a standard QWERTY keyboard, which heightens the probability of an
Internet user mistakenly entering the disputed domain name when attempting to
find Complainant’s <mapquest.com> domain name. The Panel finds Respondent has engaged in
typosquatting, further evidence Respondent lacks rights and legitimate
interests in the <ma0quest.com>
domain name pursuant to Policy ¶ 4(a)(ii).
See IndyMac Bank F.S.B. v. Ebeyer, FA 175292 (Nat. Arb. Forum Sept. 19, 2003) (finding that
the respondent lacked rights and legitimate interests in the disputed
domain names because it “engaged in the practice of typosquatting
by taking advantage of Internet users who attempt to access Complainant's
<indymac.com> website but mistakenly misspell Complainant's mark by typing
the letter ‘x’ instead of the letter ‘c’”); see
also Microsoft Corp. v. Domain
Registration
The Panel finds Complainant has satisfied Policy ¶ 4(a)(ii).
Respondent’s use of the <ma0quest.com> domain name to offer links to third-party websites displaying competing services disrupts Complainant’s business. The Panel finds this disruption demonstrates Respondent’s bad faith registration and use pursuant to Policy ¶ 4(b)(iii). See Persohn v. Lim, FA 874447 (Nat. Arb. Forum Feb. 19, 2007) (finding bad faith registration and use pursuant to Policy ¶ 4(b)(iii) where a respondent used the disputed domain name to operate a commercial search engine with links to the complainant’s competitors); see also Tesco Pers. Fin. Ltd. v. Domain Mgmt. Servs., FA 877982 (Nat. Arb. Forum Feb. 13, 2007) (finding that the respondent registered and used the disputed domain name in bad faith pursuant to Policy ¶ 4(b)(iii) when the disputed domain name resolved to a website that displayed commercial links to the websites of the complainant’s competitors in the financial services industry).
Respondent is using the confusingly similar <ma0quest.com> domain name to
presumably collect profits through the receipt of click-through fees for the
competing links displayed on the resolving website. Internet users may become confused as to
whether the resolving content is sponsored or endorsed by, or affiliated with
Complainant. The Panel finds Respondent’s
attempt to profit from this confusion is evidence of registration and use of the
disputed domain name in bad faith pursuant to Policy ¶ 4(b)(iv). See
Asbury Auto. Group, Inc. v.
Finally, the Panel has found that Respondent has engaged in
typosquatting. Thus the Panel further concludes
that Respondent’s registration and use of the <ma0quest.com> domain name was in bad faith pursuant to
Policy ¶ 4(a)(iii). See Zone Labs,
Inc. v. Zuccarini, FA 190613 (Nat.
Arb. Forum
The Panel finds 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 <ma0quest.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: October 24, 2009
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