national
arbitration forum
DECISION
The
Knot, Inc. v. Jet Stream Enterprises Limited
Claim
Number: FA0910001288037
PARTIES
Complainant is The
Knot, Inc. (“Complainant”), represented by , of CitizenHawk, Inc., California, USA. Respondent is Jet Stream Enterprises Limited (“Respondent”), Antigua and Barbuda.
REGISTRAR AND
DISPUTED DOMAIN NAME
The domain name at issue is <thenkot.com>,
registered with Tucows Inc.
PANEL
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.
Bruce E. Meyerson
as Panelist.
PROCEDURAL HISTORY
Complainant submitted a Complaint to
the National Arbitration Forum electronically on October 6, 2009; the National
Arbitration Forum received a hard copy of the Complaint on October 8, 2009.
On October 7, 2009, Tucows Inc. confirmed
by e-mail to the National Arbitration Forum that the <thenkot.com> domain name is registered with Tucows Inc. and
that Respondent is the current registrant of the name. Tucows Inc. has verified that Respondent is
bound by the Tucows 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 October 9, 2009, a Notification of
Complaint and Commencement of Administrative Proceeding (the "Commencement
Notification"), setting a deadline of October 29, 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@thenkot.com by e-mail.
Having received no response from
Respondent, the National Arbitration Forum transmitted to the parties a
Notification of Respondent Default.
On November 4, 2009, pursuant to
Complainant's request to have the dispute decided by a single-member Panel, the
National Arbitration Forum appointed Bruce E. Meyerson 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.
RELIEF SOUGHT
Complainant requests that the domain
name be transferred from Respondent to Complainant.
PARTIES' CONTENTIONS
A.
Complainant makes the following assertions:
1. Respondent’s
<thenkot.com> domain name is confusingly similar to Complainant’s THE
KNOT mark.
2. Respondent
does not have any rights or legitimate interests in the <thenkot.com>
domain name.
3. Respondent
registered and used the <thenkot.com> domain name in bad faith.
B.
Respondent failed to submit a Response in this proceeding.
FINDINGS
Complainant, The Knot, Inc., is the
Internet’s most-trafficked one-stop wedding planning website. The website run by Complainant offers advice
on planning events from engagement to honeymoon. The website resolving from Complainant’s
<theknot.com> domain name is visited by over two million new visitors
every month. Complainant holds multiple trademark
registrations of its THE KNOT mark with the United States Patent and Trademark
Office (“USPTO”) (Reg. No. 2,136,948 issued February 17, 1998; Reg. No. 2,494,405
issued October 2,
2001; and Reg. No. 2,889,317 issued September 28, 2004).
On December 27, 2002, Respondent, Jet Stream Enterprises
Limited, registered the <thenkot.com> domain name. The disputed domain name is being used to
resolve to a generic pay-per-click website displaying links to third-parties
that directly compete with Complainant, including “Crate & Barrel Wedding,”
“Unique Wedding Themes,” and “Free Wedding Checklist.”
Respondent has been the respondent in other UDRP proceedings
where the disputed domain names were transferred from Respondent to the complainants
in those cases. See Kraft Foods Global
Brands, LLC v. Jet Stream Enter. Ltd., D2009-0547 (WIPO June 29, 2009); Hershey Corp. v. Jet Stream Enter. Ltd., FA 1252241 (Nat. Arb.
Forum Apr. 27, 2009); Archstone
Cmties. LLC v. Jet Stream
Enter. Ltd., FA 1270459 (Nat.
Arb. Forum Aug. 6, 2009).
DISCUSSION
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.
Identical and/or Confusingly Similar
The Panel finds that Complainant has established rights in
its THE KNOT mark under Policy ¶ 4(a)(i) via
registration of the mark with the USPTO (Reg. No. 2,136,948 issued February 17, 1998;
Reg. No. 2,494,405 issued October 2, 2001; and Reg. No. 2,889,317 issued September 28, 2004). See Miller Brewing Co.
v. Miller Family, FA 104177 (Nat. Arb. Forum Apr. 15, 2002)
(finding that the complainant had established rights to the MILLER TIME mark
through its federal trademark registrations); see also Paisley Park Enters. v. Lawson, FA 384834
(Nat. Arb. Forum Feb.
1, 2005) (finding that the complainant had established rights in
the PAISLEY PARK mark under Policy ¶ 4(a)(i) through registration of the mark
with the USPTO).
Complainant contends, and the Panel finds, that Respondent’s
<thenkot.com> domain name varies from Complainant’s THE KNOT mark by (1) removing the space between the
words of the mark, (2) transposing the letters “k” and “n” in the mark, and (3)
adding the generic top-level domain (“gTLD”) “.com.” The Panel finds that these changes create a
domain name that is confusingly similar to Complainant’s mark under Policy ¶
4(a)(i). See Bond & Co. Jewelers, Inc. v. Texas Int’l Prop. Assocs., FA 937650
(Nat. Arb. Forum Apr.
30, 2007) (finding that the elimination of spaces between terms and
the addition of a gTLD do not establish distinctiveness from the complainant’s
mark under Policy ¶ 4(a)(i); see also
Delta Corporate Identity, Inc. v. SearchTerms, FA 590678 (Nat. Arb. Forum Dec. 14, 2005)
(concluding that the <dleta.com> domain name was confusingly similar to
the complainant’s DELTA mark).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(i).
Rights or Legitimate Interests
Pursuant to Policy
¶ 4(a)(ii), Complainant must first establish a prima
facie case that Respondent has no rights or legitimate interests in the <thenkot.com>
domain name. If the Panel finds that Complainant’s
allegations establish such a prima facie case, the burden shifts to
Respondent to show that it does indeed have rights or legitimate interests in
the disputed domain name pursuant to the guidelines in Policy ¶ 4(c). The Panel finds that Complainant’s
allegations are sufficient to establish a prima
facie case that Respondent has no rights or legitimate interests in the disputed domain name pursuant to
Policy ¶ 4(a)(ii).
Because no response was
submitted in this case, the Panel may presume that Respondent has no rights or
legitimate interests in the disputed domain name. However, the Panel will still examine the
record in consideration of the factors listed in Policy ¶ 4(c). See Domtar, Inc. v. Theriault., FA 1089426 (Nat. Arb.
Forum Jan. 4, 2008)
(“It is well established that, once a complainant has made out a prima facie case in support of its
allegations, the burden shifts to respondent to show that it does have rights
or legitimate interests pursuant to paragraph 4(a)(ii) of the Policy.”); see also 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).”).
Complainant asserts that Respondent has no license or
agreement with Complainant authorizing Respondent to use its THE KNOT mark, and the WHOIS information identifies the
registrant as “Jet Stream Enterprises Limited.”
The Panel finds no evidence in the record suggesting that Respondent is
commonly known by the disputed domain name.
Thus, the Panel finds that Respondent is not commonly known by the <thenkot.com>
domain name and has therefore not established rights or legitimate interests in
the disputed domain names under Policy ¶ 4(c)(ii). See Tercent Inc. v. Lee Yi,
FA 139720 (Nat. Arb. Forum Feb. 10, 2003) (stating “nothing in
Respondent’s WHOIS information implies that Respondent is ‘commonly known by’
the disputed domain name” as one factor in determining that Policy ¶ 4(c)(ii) does not apply); see
also America W. Airlines, Inc. v. Paik, FA 206396 (Nat. Arb. Forum Dec. 22, 2003) (“Respondent
has registered the domain name under the name ‘Ilyoup Paik a/k/a David
Sanders.’ Given the WHOIS domain name
registration information, Respondent is not commonly known by the
[<awvacations.com>] domain name.”).
Respondent’s <thenkot.com> domain name resolves
to a website that offers links to third-party websites, some of which are
competitors of Complainant. The Panel
finds that this use is not a use in connection with a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use of the
disputed domain name pursuant to Policy ¶ 4(c)(iii). See TM Acquisition Corp. v.
Sign Guards, FA 132439 (Nat. Arb. Forum Dec. 31, 2002) (finding
that the respondent’s diversionary use of the complainant’s marks to send
Internet users to a website which displayed a series of links, some of which
linked to the complainant’s competitors, was not a bona fide offering of
goods or services); see also Bank of Am. Corp. v. Nw. Free
Cmty. Access, FA 180704 (Nat.
Arb. Forum Sept. 30, 2003)
(“Respondent's demonstrated intent to divert Internet users seeking
Complainant's website to a website of Respondent and for Respondent's benefit
is not a bona fide offering of goods or services under Policy ¶ 4(c)(i) and it
is not a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).”).
Additionally, typosquatting occurs when a respondent
purposefully includes typographical errors in the mark portion of a disputed
domain name to divert Internet users who commit those typographical
errors. The disputed domain name takes advantage of Internet users who mistype
Complainant’s THE KNOT mark. The Panel
finds that Respondent engaged in typosquatting by misspelling Complainant’s
mark in the <thenkot.com> domain name. This is further evidence that Respondent does
not have rights or legitimate interests in the disputed domain names pursuant
to 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 the complainant's LTD COMMODITIES
mark and this “‘typosquatting’ is evidence that Respondent lacks rights or
legitimate interests in the disputed domain names”); see also 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’”).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
Registration and Use in Bad Faith
Respondent has been the respondent in other UDRP cases
through the National Arbitration Forum and World Intellectual Property
Organization where the disputed domain names were transferred from Respondent
to the respective complainant in those cases.
See Kraft Foods Global Brands, LLC v. Jet Stream Enter. Ltd.,
D2009-0547 (WIPO June
29, 2009); Hershey Corp. v.
Jet Stream Enter. Ltd., FA
1252241 (Nat. Arb. Forum Apr. 27, 2009); Archstone Cmties LLC v. Jet Stream Enter. Ltd., FA 1270459 (Nat. Arb. Forum Aug. 6, 2009). The Panel finds Respondent has engaged in a
pattern of registering infringing domain names, amounting to bad faith
registration and use pursuant to Policy ¶ 4(b)(ii). See National
Abortion Fed’n v. Dom 4 Sale, Inc., FA
170643 (Nat. Arb. Forum Sept. 9, 2003) (finding bad faith pursuant to Policy ¶
4(b)(ii) because the domain name prevented the complainant from reflecting its
mark in a domain name and the respondent had several adverse decisions against
it in previous UDRP proceedings, which established a pattern of
cybersquatting); see also Arai
Helmet Americas, Inc. v. Goldmark, D2004-1028 (WIPO Jan. 22, 2005 (finding that “Respondent has registered the disputed
domain name, <aria.com>, to prevent Complainant from registering it” and
taking notice of another Policy proceeding against the respondent to find that
“this is part of a pattern of such registrations”).
Respondent is using the <thenkot.com> domain
name, which was registered on December 27, 2002, almost four years after the
USPTO issued Complainant a registration in its THE KNOT mark, to redirect
Internet users to Respondent’s website that features links to third-party
sites. The links listed on the resolving
website include “Free Wedding Checklist,” “Online Bridal Toolkit,” and “Unique
Wedding Themes.” These links directly
compete with Complainant’s wedding planning business. The Panel finds that such use constitutes
disruption and is evidence of bad faith registration and use pursuant to Policy
¶ 4(b)(iii). See S. Exposure
v. S. Exposure, Inc., FA 94864 (Nat. Arb. Forum July 18, 2000) (finding the
respondent acted in bad faith by attracting Internet users to a website that
competes with the complainant’s business); 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 infers
that Respondent receives click-through fees for diverting Internet users to
third-party websites. Because
Respondent’s domain name is confusingly similar to Complainant’s THE
KNOT mark, Internet users accessing
Respondent’s disputed domain name may become confused as to Complainant’s
affiliation with the resulting website.
Thus, Respondent’s use of the <thenkot.com> domain
name constitutes bad faith
registration and use pursuant to Policy ¶ 4(b)(iv). See G.D. Searle & Co.
v. Celebrex Drugstore, FA 123933 (Nat. Arb.
Forum Nov. 21,
2002) (finding that the respondent registered and used the domain
name in bad faith pursuant to Policy ¶ 4(b)(iv) because the respondent was
using the confusingly similar domain name to attract Internet users to its
commercial website); see also AltaVista Co.
v. Krotov, D2000-1091 (WIPO Oct. 25, 2000) (finding bad faith under Policy
¶ 4(b)(iv) where the respondent’s domain name resolved to a website that
offered links to third-party websites that offered services similar to the
complainant’s services and merely took advantage of Internet user mistakes).
The Panel finds
that Respondent’s engagement in typosquatting is evidence that Respondent
registered and is using the <thenkot.com> domain name in bad faith
pursuant to Policy ¶ 4(a)(iii). See Zone Labs,
Inc. v. Zuccarini, FA 190613 (Nat.
Arb. Forum Oct. 15, 2003) (“Respondent’s
registration and use of [the <zonelarm.com> domain name] that capitalizes
on the typographical error of an Internet user is considered typosquatting.
Typosquatting, itself is evidence of bad faith registration and use pursuant to
Policy ¶ 4(a)(iii).”); 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 that Complainant has satisfied Policy ¶ 4(a)(iii).
DECISION
Having established all three elements required under the
ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <thenkot.com>
domain name be TRANSFERRED from Respondent to Complainant.
Bruce
E. Meyerson, Panelist
Dated: November 18, 2009
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