The One Account Limited v. Said Belhsen
Claim Number: FA0910001288622
Complainant is The One Account Limited (“Complainant”), represented by James
A. Thomas, of Troutman Sanders LLP,
REGISTRAR AND DISPUTED DOMAIN
NAMES
The domain names at issue are <lneaccount.com>, <oheaccount.com>, <ojeaccount.com>, <ondaccount.com>, <oneacckunt.com>, <oneacclunt.com>, <oneaccohnt.com>, <oneaccojnt.com>, <oneaccouht.com>, <oneaccoujt.com>, <oneaccounf.com>, <oneaccoung.com>, <oneaccounnt.com>, <oneaccountt.com>, <oneaccouunt.com>, <oneacocunt.com>, <onecacount.com>, <oneeaccount.com>, <oneqccount.com>, <onewccount.com>, <onezccount.com>, <onneaccount.com>, <onsaccount.com>, <ooneaccount.com>, and <onaaccount.com>, registered with Onlinenic, 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 October
15, 2009 and October 21, 2009, Onlinenic,
Inc. confirmed by e-mail to the National Arbitration Forum that the <ojeaccount.com>, <ondaccount.com>,
<oneacckunt.com>, <oneacclunt.com>, <oneaccohnt.com>,
<oneaccojnt.com>, <oneaccouht.com>, <oneaccoujt.com>,
<oneaccounf.com>, <oneaccoung.com>, <oneaccounnt.com>,
<oneaccountt.com>, <oneaccouunt.com>, <oneacocunt.com>,
<onecacount.com>, <oneeaccount.com>, <oneqccount.com>,
<onewccount.com>, <onezccount.com>, <onneaccount.com>,
<onsaccount.com>, <ooneaccount.com>, and <onaaccount.com> domain
names are registered with Onlinenic, Inc.
and that Respondent is the current registrant of the names. Onlinenic,
Inc. has verified that Respondent is bound by the Onlinenic, 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 22, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of November 12, 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@lneaccount.com, postmaster@oheaccount.com, postmaster@ojeaccount.com, postmaster@ondaccount.com, postmaster@oneacckunt.com, postmaster@oneacclunt.com, postmaster@oneaccohnt.com, postmaster@oneaccojnt.com, postmaster@oneaccouht.com, postmaster@oneaccoujt.com, postmaster@oneaccounf.com, postmaster@oneaccoung.com, postmaster@oneaccounnt.com, postmaster@oneaccountt.com, postmaster@oneaccouunt.com, postmaster@oneacocunt.com, postmaster@onecacount.com, postmaster@oneeaccount.com, postmaster@oneqccount.com, postmaster@onewccount.com, postmaster@onezccount.com, postmaster@onneaccount.com, postmaster@onsaccount.com, postmaster@ooneaccount.com, and postmaster@onaaccount.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 names be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <ojeaccount.com>, <ondaccount.com>, <oneacckunt.com>, <oneacclunt.com>, <oneaccohnt.com>, <oneaccojnt.com>, <oneaccouht.com>, <oneaccoujt.com>, <oneaccounf.com>, <oneaccoung.com>, <oneaccounnt.com>, <oneaccountt.com>, <oneaccouunt.com>, <oneacocunt.com>, <onecacount.com>, <oneeaccount.com>, <oneqccount.com>, <onewccount.com>, <onezccount.com>, <onneaccount.com>, <onsaccount.com>, <ooneaccount.com>, and <onaaccount.com> domain names are confusingly similar to Complainant’s ONEACCOUNT mark.
2. Respondent does not have any rights or legitimate interests in the <ojeaccount.com>, <ondaccount.com>, <oneacckunt.com>, <oneacclunt.com>, <oneaccohnt.com>, <oneaccojnt.com>, <oneaccouht.com>, <oneaccoujt.com>, <oneaccounf.com>, <oneaccoung.com>, <oneaccounnt.com>, <oneaccountt.com>, <oneaccouunt.com>, <oneacocunt.com>, <onecacount.com>, <oneeaccount.com>, <oneqccount.com>, <onewccount.com>, <onezccount.com>, <onneaccount.com>, <onsaccount.com>, <ooneaccount.com>, and <onaaccount.com> domain names.
3. Respondent registered and used the <ojeaccount.com>, <ondaccount.com>, <oneacckunt.com>, <oneacclunt.com>, <oneaccohnt.com>, <oneaccojnt.com>, <oneaccouht.com>, <oneaccoujt.com>, <oneaccounf.com>, <oneaccoung.com>, <oneaccounnt.com>, <oneaccountt.com>, <oneaccouunt.com>, <oneacocunt.com>, <onecacount.com>, <oneeaccount.com>, <oneqccount.com>, <onewccount.com>, <onezccount.com>, <onneaccount.com>, <onsaccount.com>, <ooneaccount.com>, and <onaaccount.com> domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, The One Account Limited, owns numerous registrations for its ONEACCOUNT family of marks including with the United Kingdom Intellectual Property Office (“UKIPO”) for its “THEONEACCOUNT” mark (e.g. Reg. No. 2,273,357F issued June 13, 2003) and its “ONEACCOUNT” mark with the European Union Office for Harmonization in the Internal Market (“OHIM”) (e.g. Reg. No. 2,492,031 issued June 12, 2003) in connection with a variety of goods and services, specifically including online mortgage financing services. Complainant, through its parent company, RBS, also owns the domain name <theoneaccount.com> which resolves to Complainant’s website at <oneaccount.com>.
Respondent, Said Belhsen, registered the disputed domain names 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.
Respondent, Said Belhsen, registered the disputed domain names on
Complainant asserts rights in its ONEACCOUNT mark through
its holding of multiple registrations for the ONEACCOUNT mark with both the
UKIPO (e.g., Reg. No. 2,273,357F issued
Complainant argues that Respondent’s <ojeaccount.com>, <ondaccount.com>,
<oneacckunt.com>, <oneacclunt.com>, <oneaccohnt.com>,
<oneaccojnt.com>, <oneaccouht.com>, <oneaccoujt.com>,
<oneaccounf.com>, <oneaccoung.com>, <oneaccounnt.com>,
<oneaccountt.com>, <oneaccouunt.com>, <oneacocunt.com>,
<onecacount.com>, <oneeaccount.com>, <oneqccount.com>,
<onewccount.com>, <onezccount.com>, <onneaccount.com>,
<onsaccount.com>, <ooneaccount.com>, and <onaaccount.com>
domain names are confusingly similar to Complainant’s ONEACCOUNT mark
pursuant to Policy ¶ 4(a)(i).
Respondent’s disputed domain names incorporate a misspelling of
Complainant’s mark by adding letters or transposing letters, along with adding a
generic top-level domain name (“gTLD”) extension “.com.”
a)
Respondent’s <lneaccount.com>, <oheaccount.com>, <ojeaccount.com>,
<ondaccount.com>, <oneacckunt.com>, <oneacclunt.com>,
<oneaccohnt.com>, <oneaccojnt.com>, <oneaccouht.com>,
<oneaccoujt.com>, <oneaccounf.com>, <oneaccoung.com>,
<oneqccount.com>, <onewccount.com>, <onezccount.com>,
<onsaccount.com>, and <onaaccount.com> domain names
replace a letter in Complainant’s mark with a letter adjacent on the QWERTY
keyboard. The Panel finds that the misspellings of Complainant’s ONEACCOUNT mark
creates terms that are phonetically and visually similar to Complainant’s
ONEACCOUNT mark resulting in confusing similarity for the purposes of 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)
b) Respondent’s
<oneaccounnt.com>, <oneaccountt.com>,
<oneaccouunt.com>, <ooneaccount.com>, <oneeaccount.com>,
and <onneaccount.com> domain names add a letter or repeat a letter
in Complainant’s mark. The Panel finds
that the misspellings of Complainant’s ONEACCOUNT mark create terms that are
phonetically and visually similar to Complainant’s ONEACCOUNT mark resulting in
confusing similarity for the purposes of Policy 4(a)(i). See Marriott Int'l, Inc. v. Seocho, FA 149187 (Nat. Arb. Forum
c)
Respondent’s
<oneacocunt.com>, and <onecacount.com> domain
names transpose letters in
Complainant’s mark. The Panel finds that the transposing of
letters in Complainant’s ONEACCOUNT mark creates terms that are
visually similar to Complainant’s ONEACCOUNT mark resulting in confusing
similarity for purposes of Policy 4(a)(i).
See
Wyndham IP Corp. v. LaPorte
Holdings, Inc., FA 373545 (Nat. Arb. Forum Jan. 17, 2005) (finding the <wynhdam.com> and
<wyandham.com> domain names to be confusingly similar to the complainant’s
WYNDHAM mark because the domain names merely transposed letters in the
mark).
The Panel also finds that the addition of a gTLD to a
registered mark is irrelevant in distinguishing a disputed domain name and a
mark. See Trip Network Inc. v. Alviera, FA 914943 (Nat. Arb. Forum
The Panel finds that
Policy ¶ 4(a)(i) has been satisfied.
Complainant alleges that Respondent has no rights or legitimate interests in the disputed domain names. Once Complainant makes a prima facie case in support of its allegations, the burden shifts to Respondent to prove it has rights or legitimate interests in the disputed domain names pursuant to Policy ¶ 4(a)(ii). Based on the arguments made in the Complaint, the Panel finds that Complainant has established a prima facie case in support of its contentions and Respondent has failed to submit a response to these proceedings. 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 Towmaster, Inc. v. Hale, FA 973506 (Nat. Arb. Forum June 4, 2007) (“Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), and then the burden shifts to Respondent to show it does have rights or legitimate interests.”). Nevertheless, the Panel will examine the record to determine of Respondent has rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(c).
The WHOIS information lists the registrant as “Said Belhsen.” Complainant has not licensed or otherwise authorized Respondent to use its ONEACCOUNT mark, or any variations thereof and Respondent is not affiliated with Complainant. Without evidence to the contrary, the Panel finds that Respondent is not commonly known by the disputed domain names pursuant to Policy ¶ 4(c)(ii). See IndyMac Bank F.S.B. v. Eshback, FA 830934 (Nat. Arb. Forum Dec. 7, 2006) (finding that the respondent failed to establish rights and legitimate interests in the <emitmortgage.com> domain name as the respondent was not authorized to register domain names featuring the complainant’s mark and failed to submit evidence of that it is commonly known by the disputed domain name); see also 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).
Respondent’s disputed
domain names were registered on
Complainant argues that
Respondent is using typographical errors in the confusingly similar disputed
domain names to redirect Internet users to Complainant’s website and attempting
to profit from it through the collection of referral fees. The Panel finds that Respondent has no rights
or legitimate interests under 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 LTD
Commodities LLC v. Party Night, Inc., FA
165155 (Nat. Arb. Forum
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Respondent’s use of the disputed domain names and
Respondent’s attempt to intentionally attract Internet users and profit through
the receipt of affiliate fees by creating a strong likelihood of confusion with
Complainant’s ONEACCOUNT mark is evidence of bad faith pursuant to
Policy ¶ 4(b)(iv). See
Deluxe Corp. v.
As established previously, Respondent has engaged in the
practice of typosquatting by using common mistypings of Complainant’s
ONEACCOUNT mark to misdirect Internet users.
The Panel finds typosquatting is itself evidence of baid faith
registration and use under Policy ¶ 4(a)(iii).
See Microsoft Corp. v. Domain Registration
The Panel finds that 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 <lneaccount.com>,<oheaccount.com>,<ojeaccount.com>,<ondaccount.com>,<oneacckunt.com>,<oneacclunt.com>,<oneaccohnt.com>,<oneaccojnt.com>,<oneaccouht.com>,<oneaccoujt.com>,<oneaccounf.com>,<oneaccoung.com>,<oneaccounnt.com>,<oneaccountt.com>,<oneaccouunt.com>,<oneacocunt.com>,<onecacount.com>,<oneeaccount.com>,<oneqccount.com>,<onewccount.com>,<onezccount.com>,<onneaccount.com>,<onsaccount.com>,<ooneaccount.com>, and <onaaccount.com> domain names be TRANSFERRED from Respondent to Complainant.
Hon. Ralph Yachnin, Panelist
Justice, Supreme Court, NY (Ret.)
Dated: December 1, 2009
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