The One Account Limited v. Mark Sambrowsky
Claim Number: FA0910001288814
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 <ineaccount.com>, <noeaccount.com>, <obeaccount.com>, <oeaccount.com>, <oenaccount.com>, <omeaccount.com>, <onaeccount.com>, <oneacciunt.com>, <oneaccoint.com>, <oneaccoubt.com>, <oneaccoumt.com>, <oneaccoun.com>, <oneaccounr.com>, <oneaccouny.com>, <oneaccoutn.com>, <oneaccoynt.com>, <oneaccpunt.com>, <oneaccunt.com>, <onesccount.com>, <onraccount.com>, <onwaccount.com>, <pneaccount.com>, <oneavvount.com>, and <oneaxxount.com>, registered with Onlinenic, Inc..
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Judge Harold Kalina (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on October 9, 2009; the National Arbitration Forum received a hard copy of the Complaint on October 12, 2009.
On October 21, 2009, Onlinenic, Inc. confirmed by e-mail to the National Arbitration Forum that the <ineaccount.com>, <noeaccount.com>, <obeaccount.com>, <oeaccount.com>, <oenaccount.com>, <omeaccount.com>, <onaeccount.com>, <oneacciunt.com>, <oneaccoint.com>, <oneaccoubt.com>, <oneaccoumt.com>, <oneaccoun.com>, <oneaccounr.com>, <oneaccouny.com>, <oneaccoutn.com>, <oneaccoynt.com>, <oneaccpunt.com>, <oneaccunt.com>, <onesccount.com>, <onraccount.com>, <onwaccount.com>, <pneaccount.com>, <oneavvount.com>, and <oneaxxount.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 23, 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@<ineaccount.com>, postmaster@noeaccount.com, postmaster@obeaccount.com, postmaster@oeaccount.com, postmaster@oenaccount.com, postmaster@omeaccount.com, postmaster@onaeccount.com, postmaster@oneacciunt.com, postmaster@oneaccoint.com, postmaster@oneaccoubt.com, postmaster@oneaccoumt.com, postmaster@oneaccoun.com, postmaster@oneaccounr.com, postmaster@oneaccouny.com, postmaster@oneaccoutn.com, postmaster@oneaccoynt.com, postmaster@oneaccpunt.com, postmaster@oneaccunt.com, postmaster@onesccount.com, postmaster@onraccount.com, postmaster@onwaccount.com, postmaster@pneaccount.com, postmaster@oneavvount.com, and postmaster@oneaxxount.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 18, 20009, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Judge Harold Kalina (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 names be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <ineaccount.com>, <noeaccount.com>, <obeaccount.com>, <oeaccount.com>, <oenaccount.com>, <omeaccount.com>, <onaeccount.com>, <oneacciunt.com>, <oneaccoint.com>, <oneaccoubt.com>, <oneaccoumt.com>, <oneaccoun.com>, <oneaccounr.com>, <oneaccouny.com>, <oneaccoutn.com>, <oneaccoynt.com>, <oneaccpunt.com>, <oneaccunt.com>, <onesccount.com>, <onraccount.com>, <onwaccount.com>, <pneaccount.com>, <oneavvount.com>, and <oneaxxount.com> domain names are confusingly similar to Complainant’s ONEACCOUNT mark.
2. Respondent does not have any rights or legitimate interests in the <ineaccount.com>, <noeaccount.com>, <obeaccount.com>, <oeaccount.com>, <oenaccount.com>, <omeaccount.com>, <onaeccount.com>, <oneacciunt.com>, <oneaccoint.com>, <oneaccoubt.com>, <oneaccoumt.com>, <oneaccoun.com>, <oneaccounr.com>, <oneaccouny.com>, <oneaccoutn.com>, <oneaccoynt.com>, <oneaccpunt.com>, <oneaccunt.com>, <onesccount.com>, <onraccount.com>, <onwaccount.com>, <pneaccount.com>, <oneavvount.com>, and <oneaxxount.com> domain names.
3. Respondent registered and used the <ineaccount.com>, <noeaccount.com>, <obeaccount.com>, <oeaccount.com>, <oenaccount.com>, <omeaccount.com>, <onaeccount.com>, <oneacciunt.com>, <oneaccoint.com>, <oneaccoubt.com>, <oneaccoumt.com>, <oneaccoun.com>, <oneaccounr.com>, <oneaccouny.com>, <oneaccoutn.com>, <oneaccoynt.com>, <oneaccpunt.com>, <oneaccunt.com>, <onesccount.com>, <onraccount.com>, <onwaccount.com>, <pneaccount.com>, <oneavvount.com>, and <oneaxxount.com> domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, The One Account
Limited, is a leading mortgage provider in the
Respondent registered the disputed domain names on May 21, 2009. Respondent’s disputed domain names redirect Internet users to Complainant’s official website located at the <oneaccount.com> domain name.
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 has provided evidence of numerous registrations of the ONEACCOUNT mark with the UKIPO (e.g., Reg. No. 2,273,357 issued June 13, 2003). The Panel finds these registrations satisfy Policy ¶ 4(a)(i) and thus establish Complainant’s rights in its ONEACCOUNT mark. 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); see also KCTS Television Inc. v. Get-on-the-Web Ltd., D2001-0154 (WIPO Apr. 20, 2001) (holding that it does not matter for the purpose of paragraph 4(a)(i) of the Policy whether the complainant’s mark is registered in a country other than that of the respondent’s place of business).
Complainant argues that Respondent’s disputed domain names are confusingly similar to Complainant’s ONEACCOUNT mark pursuant to Policy ¶ 4(a)(i). Each of Respondent’s disputed domain names contain a misspelled version of Complainant’s mark and add the generic top-level domain (“gTLD”) “.com.” The Panel finds that a disputed domain name that contains a misspelled version of a complainant’s mark fails to have a distinguishing characteristic and thus creates a confusing similarity between the disputed domain name and the complainant’s mark. See Reuters Ltd. v. Global Net 2000, Inc., D2000-0441 (WIPO July 13, 2000) (finding that a domain name which differs by only one letter from a trademark has a greater tendency to be confusingly similar to the trademark where the trademark is highly distinctive); see also Victoria’s Secret v. Zuccarini, FA 95762 (Nat. Arb. Forum Nov. 18, 2000) (finding that, by misspelling words and adding letters to words, a respondent does not create a distinct mark but nevertheless renders the domain name confusingly similar to the complainant’s marks). In addition, the Panel finds that the addition of a gTLD fails to distinguish a disputed domain name from a registered mark. See 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); 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). Therefore, the Panel finds that Respondent’s disputed domain names are confusingly similar to Complainant’s ONEACCOUNT mark pursuant to Policy ¶ 4(a)(i).
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant alleges that Respondent lacks all rights and legitimate interests in the disputed domain names. If Complainant makes a prima facie case in support of its allegations, the burden shifts to Respondent to prove that its rights and legitimate interests exist pursuant to Policy ¶ 4(a)(ii). The Panel finds that Complainant has established a prima facie case and Respondent has failed to submit a Response in this proceeding. 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 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).
Complainant asserts Respondent is not commonly known by the disputed domain names. As proof, Complainant offers the WHOIS information, which lists the registrant as “Mark Sambrowsky.” The Panel finds Respondent is not commonly known by the disputed domain names pursuant to Policy ¶ 4(c)(ii). See Am. 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.”); see also M. Shanken Commc’ns v. WORLDTRAVELERSONLINE.COM, FA 740335 (Nat. Arb. Forum Aug. 3, 2006) (finding that the respondent was not commonly known by the <cigaraficionada.com> domain name under Policy ¶ 4(c)(ii) based on the WHOIS information and other evidence in the record).
Complainant alleges that Respondent’s disputed domain names redirect unknowing Internet users to Complainant’s official website located at the <oneaccount.com> domain name, presumably for commercial benefit through referral fees. The Panel finds that Respondent’s use of the confusingly similar disputed domain names to redirect Internet users and earn referral fees in not a bona fide offering of goods and services pursuant to Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). See Gen. Mills, Inc. v. Zuccarini, FA 97050 (Nat. Arb. Forum May 30, 2001) (“[U]nder the “Policy,” Respondent may not utilize close derivations of famous and distinctive trademarks and, thus, profit from Internet users’ misspelling the Internet destinations they desire.”); see also Barnesandnoble.com LLC v. Your One Stop Web Shop, FA 670171 (Nat. Arb. Forum May 3, 2006) (finding that the respondent’s use of the disputed domain names to divert Internet users attempting to reach the complainant’s website and in breach of the complainant’s affiliate program is neither a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) nor a legitimate non-commercial or fair use pursuant to Policy ¶ 4(c)(iii)).
In addition, Respondent
is taking advantage of Internet users that are attempting to reach Complainant’s
website by capitalizing on the misspelling of Complainant’s ONEACCOUNT
mark. The Panel finds that Respondent’s
engagement in the practice of typosquatting is evidence that Respondent lacks
rights and legitimate interests in the disputed domain names under Policy ¶ 4(a)(ii). See Microsoft Corp. v.
Domain Registration
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
The Panel finds that Respondent’s registration of multiple domain names containing Complainant’s ONEACCOUNT mark is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(ii). See Harcourt, Inc. v. Fadness, FA 95247 (Nat. Arb. Forum Sept. 8, 2000) (finding that one instance of registration of several infringing domain names satisfies the burden imposed by the Policy ¶ 4(b)(ii)); see also Armstrong Holdings, Inc. v. JAZ Assocs., FA 95234 (Nat. Arb. Forum Aug. 17, 2000) (finding that the respondent violated Policy ¶ 4(b)(ii) by registering multiple domain names that infringe upon others’ famous and registered trademarks).
Respondent’s confusingly similar disputed domain names redirect Internet users to Complainant’s official website, for which, presumably, Respondent receives referral fees. The Panel finds that this use of the disputed domain names by Respondent creates a likelihood of confusion as to Complainant’s affiliation with the disputed domain names. Accordingly, the Panel finds that Respondent’s conduct constitutes bad faith registration and use under Policy ¶ 4(b)(iv). See Metro. Life Ins. Co. v. Bonds, FA 873143 (Nat. Arb. Forum Feb. 16, 2007) (“The Panel finds such use to constitute bad faith registration and use pursuant to Policy ¶ 4(b)(iv), because [r]espondent is taking advantage of the confusing similarity between the <metropolitanlife.us> domain name and Complainant’s METLIFE mark in order to profit from the goodwill associated with the mark.”); see also Carey Int’l, Inc. v. Kogan, FA 486191 (Nat. Arb. Forum July 29, 2005) (“[T]he Panel finds that Respondent is capitalizing on the confusing similarity of its domain names to benefit from the valuable goodwill that Complainant has established in its marks. Consequently, it is found that Respondent registered and used the domain names in bad faith under Policy ¶ 4(b)(iv).”).
The Panel finds that Respondent’s disputed domain names are merely typosquatted versions of Complainant’s ONEACCOUNT mark, and that such typosquatting constitutes bad faith registration and use under Policy ¶ 4(a)(iii). See Computerized Sec. Sys., Inc. v. Hu, FA 157321 (Nat. Arb. Forum June 23, 2003) (finding that the respondent engaged in typosquatting, which is evidence of bad faith registration and use under Policy ¶ 4(a)(iii)); see also Bank of Am. Corp. v. Tak Ume domains for sale, FA 154528 (Nat. Arb. Forum May 19, 2003) (“Respondent’s registration and use of the disputed domain name demonstrates a practice commonly referred to as ‘typosquatting.’ This practice diverts Internet users who misspell Complainant’s mark to a website apparently owned by Respondent for Respondent’s commercial gain. ‘Typosquatting’ has been recognized as evidencing bad faith registration and use…”).
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 <ineaccount.com>, <noeaccount.com>, <obeaccount.com>, <oeaccount.com>, <oenaccount.com>, <omeaccount.com>, <onaeccount.com>, <oneacciunt.com>, <oneaccoint.com>, <oneaccoubt.com>, <oneaccoumt.com>, <oneaccoun.com>, <oneaccounr.com>, <oneaccouny.com>, <oneaccoutn.com>, <oneaccoynt.com>, <oneaccpunt.com>, <oneaccunt.com>, <onesccount.com>, <onraccount.com>, <onwaccount.com>, <pneaccount.com>, <oneavvount.com>, and <oneaxxount.com> domain names be TRANSFERRED from Respondent to Complainant.
Judge Harold Kalina (Ret.), Panelist
Dated: November 25, 2009
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