AccountNow, Inc. v. Domain Administrator
Claim Number: FA0910001290055
Complainant is AccountNow,
Inc. (“Complainant”), represented by CitizenHawk,
Inc.,
REGISTRAR
The domain names at issue are <acccountnow.com>, <acccountnow.net>, <accontnow.com>,
<accontnow.net>, <acconutnow.net>, <accountnw.com>,
<accountnw.net>, <accountonw.net>, <accountow.com>,
<accoutnow.net>, <accuntnow.net>, <acountnow.com>,
<wwwaccountnow.com>, and <accountnwo.net>,
registered with Moniker Online Services LLC (“Moniker”).
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.
Complainant submitted a Complaint to the National Arbitration Forum electronically on October 19, 2009; the National Arbitration Forum received a hard copy of the Complaint on October 20, 2009.
On October 20, 2009, Moniker confirmed by e-mail to the National Arbitration Forum that the <acccountnow.com>, <acccountnow.net>, <accontnow.com>, <accontnow.net>, <acconutnow.net>, <accountnw.com>, <accountnw.net>, <accountonw.net>, <accountow.com>, <accoutnow.net>, <accuntnow.net>, <acountnow.com>, <wwwaccountnow.com>, and <accountnwo.net> domain names are registered with Moniker and that Respondent is the current registrant of the names. Moniker has verified that Respondent is bound by the Moniker 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 28, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of November 17, 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@acccountnow.com, postmaster@acccountnow.net, postmaster@accontnow.com, postmaster@accontnow.net, postmaster@acconutnow.net, postmaster@accountnw.com, postmaster@accountnw.net, postmaster@accountonw.net, postmaster@accountow.com, postmaster@accoutnow.net, postmaster@accuntnow.net, postmaster@acountnow.com, postmaster@wwwaccountnow.com, and postmaster@accountnwo.net by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On November 24, 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.
Complainant requests that the domain names be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <acccountnow.com>, <acccountnow.net>, <accontnow.com>, <accontnow.net>, <acconutnow.net>, <accountnw.com>, <accountnw.net>, <accountonw.net>, <accountow.com>, <accoutnow.net>, <accuntnow.net>, <acountnow.com>, <wwwaccountnow.com>, and <accountnwo.net> domain names are confusingly similar to Complainant’s ACCOUNTNOW mark.
2. Respondent does not have any rights or legitimate interests in the <acccountnow.com>, <acccountnow.net>, <accontnow.com>, <accontnow.net>, <acconutnow.net>, <accountnw.com>, <accountnw.net>, <accountonw.net>, <accountow.com>, <accoutnow.net>, <accuntnow.net>, <acountnow.com>, <wwwaccountnow.com>, and <accountnwo.net> domain names.
3. Respondent registered and used the <acccountnow.com>, <acccountnow.net>, <accontnow.com>, <accontnow.net>, <acconutnow.net>, <accountnw.com>, <accountnw.net>, <accountonw.net>, <accountow.com>, <accoutnow.net>, <accuntnow.net>, <acountnow.com>, <wwwaccountnow.com>, and <accountnwo.net> domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, AccountNow, Inc., holds several registrations for its ACCOUNTNOW mark (e.g., Reg. No. 3,175,043 issued November 21, 2006; filed October 6, 2004) with the United States Patent and Trademark Office (“USPTO”). Complainant uses its ACCOUNTNOW mark in connection with a variety of financial services. Complainant first used the ACCOUNTNOW mark on February 20, 2005.
Respondent, Domain Administrator, registered the disputed domain name <wwwaccountnow.com> on May 25, 2005. Respondent registered the disputed domain names <acccountnow.net>, <accontnow.net>, <accountnw.net>, <accoutnow.net>, and <acountnow.com> on September 6, 2005. Respondent registered the disputed domain names <acccountnow.com>, and <accontnow.com> on December 1, 2005. Respondent registered the disputed domain name <accuntnow.net> on February 14, 2006. Respondent registered the disputed domain names <accountnwo.net>, <acconutnow.net>, <accountnw.com>, and <accountonw.net> on August 30, 2007. Respondent registered the disputed domain name <accountow.com> on September 3, 2007. The disputed domain names resolve to websites that redirect Internet users to a site with links to third-party websites, some of which directly compete 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 asserts rights in its ACCOUNTNOW mark through its holding of a number of registrations for the ACCOUNTNOW mark with the USPTO (e.g., Reg. No. 3,175,043 issued November 21, 2006; filed October 6, 2004). The Panel finds that Complainant has established rights in the ACCOUNTNOW mark under Policy ¶ 4(a)(i) through its registration with the USPTO. See Expedia, Inc. v. Tan, FA 991075 (Nat. Arb. Forum June 29, 2007) (“As the [complainant’s] mark is registered with the USPTO, [the] complainant has met the requirements of Policy ¶ 4(a)(i).”); see also 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.”).
Complainant argues that Respondent’s <acccountnow.com>, <acccountnow.net>, <accontnow.com>, <accontnow.net>, <acconutnow.net>, <accountnw.com>, <accountnw.net>, <accountonw.net>, <accountow.com>, <accoutnow.net>, <accuntnow.net>, <acountnow.com>, <wwwaccountnow.com>, and <accountnwo.net> domain names are confusingly similar to Complainant’s ACCOUNTNOW mark pursuant to policy ¶ 4(a)(i). Respondent’s disputed domain names each incorporate a misspelling of Complainant’s mark by adding or deleting letters, transposing letters, along with adding a generic top-level domain name (“gTLD”) extension “.net” or “.com.”
The Panel finds that the addition and/or deletion of a letter to Complainant’s ACCOUNTNOW mark creates terms that are phonetically and visually similar to Complainant’s ACCOUNTNOW 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 Apr. 28, 2003)(finding that the respondent’s <marrriott.com> domain name was confusingly similar to the complainant’s MARRIOTT mark); Pfizer Inc. v. BargainName.com, D2005-0299 (WIPO Apr. 28, 2005) (holding that the <pfzer.com> domain name was confusingly similar to the complainant’s PFIZER mark, as the respondent simply omitted the letter “i”). The Panel finds that the transposition of letters in Complainant’s ACCOUNTNOW mark creates terms that are visually similar to Complainant’s ACCOUNTNOW mark resulting in confusing similarity for the purposes of Policy ¶ 4(a)(i). See Google Inc. v. Jon G., FA 106084 (Nat. Arb. Forum Apr. 26, 2002) (finding <googel.com> to be confusingly similar to the complainant’s GOOGLE mark and noting that “[t]he transposition of two letters does not create a distinct mark capable of overcoming a claim of confusing similarity, as the result reflects a very probable typographical error”).
The Panel finds Respondent’s <wwwaccountnow.com> domain name contains the addition of the “www” prefix to Complainant’s ACCOUNTNOW mark. The Panel finds that the addition of “www” to Complainant’s ACCOUNTNOW mark creates terms that are visually similar to Complainant’s ACCOUNTNOW mark resulting in confusing similarity for the purposes of Policy ¶ 4(a)(i). See Register.com Inc. v. House, FA 167970 (Nat. Arb. Forum Aug. 22, 2003) (finding the prefix “www” followed by the trademark with no period separating them did not distinguish the mark and was confusingly similar). 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 Reichert, Inc. v. Leonard, FA 672010 (Nat. Arb. Forum May 24, 2006) (“The disputed domain names are identical to Complainant’s mark, but for the addition of a generic top-level domain suffix (“.com” or “.net”)…”).
Therefore, pursuant to Policy ¶ 4(a)(i), the Panel finds that Respondent’s disputed domain names are confusingly similar to Complainant’s ACCOUNTNOW mark.
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 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 AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006) (finding that if the complainant satisfies its prima facie burden, “then the burden shifts to the respondent to show that it does have rights or legitimate interest in the subject domain names.”). Nevertheless, the Panel will examine the record to determine if Respondent has rights or legitimate interests in the disputed domain names pursuant to Policy ¶ 4(c).
The WHOIS information for each disputed domain name lists the registrant as “Domain Administrator.” Complainant has not given Respondent permission to use Complainant’s ACCOUNTNOW mark and Respondent is not sponsored by or legitimately affiliated with Complainant in any way. 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 between May 25, 2005 and September 3, 2007. The disputed domain names resolve to websites that redirect Internet users to a site with links to third-party websites, some of which directly compete with Complainant’s business. The Panel presumes that Respondent is profiting through the receipt of click-through fees by operating these websites. Thus, the Panel finds that Respondent is not using the disputed domain names in connection with a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), or making a legitimate noncommercial or fair use of the disputed domain names pursuant to Policy ¶ 4(c)(iii). See 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)); see also Disney Enters., Inc. v. Kamble, FA 918556 (Nat. Arb. Forum Mar. 27, 2007) (holding that the operation of a pay-per-click website at a confusingly similar domain name was not 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)).
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 pay-per-click fees. The
Panel agrees and further finds that these uses do not constitute rights or
legitimate interests under Policy ¶ 4(a)(ii). See
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Complainant registered its ACCOUNTNOW mark initially in 2004 and began using the mark on February 20, 2005. Respondent began registering its confusingly similar domain names almost immediately thereafter starting on May 25, 2005.
Respondent has not offered any explanation why it began to register its domain names at precisely the same time Complainant began its business. Moreover, the misspellings in the domain names further indicate that their registration was not coincidental. Accordingly, the Panel concludes that Respondent had knowledge of Complainant’s mark when the domain names were registered and thus concludes that the domain names were registered in bad faith. See generally General Growth Properties, Inc. v. Rasmussen, D2003-0845 (WIPO Jan. 15, 2004); Kangwon Land, Inc. v. Bong Woo Chun (K.W.L. Inc.), D2003-0320 (WIPO July 4, 2003); Madrid 2012, A.A. v. Scott Martin-MadridMan Websites, D2003-0598 (WIPO Oct. 8, 2003). Accordingly, the Panel finds that the registrations were in bad faith.
The Panel further finds that Respondent’s use of the disputed domain names to link Internet users to websites featuring third-party links which are in competition with Complainant constitutes a disruption of Complainant’s business and constitutes bad faith pursuant to 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 David Hall Rare Coins v. Tex. Int’l Prop. Assocs., FA 915206 (Nat. Arb. Forum Apr. 9, 2007) (finding that the respondent registered and used the disputed domain name in bad faith pursuant to Policy ¶ 4(b)(iii) because respondent used the disputed domain name to advertise goods and services of complainant’s competitors, thereby disrupting the complainant’s business).
The Panel finds that Respondent’s attempt to intentionally
attract Internet users and profit from the receipt of affiliate fees by
creating a strong likelihood of confusion with Complainant’s ACCOUNTNOW mark is
evidence of bad faith pursuant to Policy ¶ 4(b)(iv). See
As established previously, Respondent has engaged in the
practice of typosquatting by using common misspellings of Complainant’s
ACCOUNTNOW mark to misdirect internet users.
The Panel finds typosquatting is itself evidence of bad faith
registration and use under Policy ¶ 4(a)(iii). See 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 under Policy ¶ 4(b)(iv).”); see also Medline, Inc. v. Domain Active Pty. Ltd., FA 139718 (Nat. Arb. Forum
Feb. 6, 2003) (finding no
rights or legitimate interests where the respondent merely redirected the
<wwwmedline.com> domain name to the complainant’s own website at
<medline.com>).
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 <acccountnow.com>, <acccountnow.net>, <accontnow.com>, <accontnow.net>, <acconutnow.net>, <accountnw.com>, <accountnw.net>, <accountonw.net>, <accountow.com>, <accoutnow.net>, <accuntnow.net, <acountnow.com>, <wwwaccountnow.com>, and <accountnwo.net> domain name be TRANSFERRED from Respondent to Complainant.
Bruce E. Meyerson, Panelist
Dated: December 8, 2009
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