The Knot, Inc. v. Versata Software Inc. c/o Versata Hostmaster
Claim Number: FA0910001290977
Complainant is The
Knot, Inc. (“Complainant”), represented by CitizenHawk, Inc.,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <thknot.com>, registered with Directnic, Ltd.
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 October 22, 2009; the National Arbitration Forum received a hard copy of the Complaint on October 23, 2009.
On October 26, 2009, Directnic, Ltd confirmed by e-mail to the National Arbitration Forum that the <thknot.com> domain name is registered with Directnic, Ltd and that Respondent is the current registrant of the name. Directnic, Ltd has verified that Respondent is bound by the Directnic, Ltd 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@thknot.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 24, 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 <thknot.com> domain name is confusingly similar to Complainant’s THE KNOT mark.
2. Respondent does not have any rights or legitimate interests in the <thknot.com> domain name.
3. Respondent registered and used the <thknot.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, The Knot, Inc., provides wedding planning solution services through its website at <theknot.com> and through Complainant’s magazines and books. Complainant was founded in 1996 and has operated under its THE KNOT mark since that time. Complainant holds multiple trademark registrations with the United States Patent and Trademark Office (“USPTO”) for its THE KNOT mark (e.g., Reg. No. 2,136,948 issued February 17, 1998).
Respondent, Versata Software Inc. c/o Versata Hostmaster, registered the <thknot.com> domain name on August 23, 2000. The disputed domain name resolves to a website containing hyperlinks to third-party websites, some of which resolve to Complainant’s competitors in the wedding planning solution services industry. Respondent has been the respondent in other UDRP proceedings in which disputed domain names were transferred from Respondent to the respective complainants in those cases. See Ashley Furniture Indus., Inc. v. Versate Software, Inc. c/o Versata Hostmaster, FA 1259286 (Nat. Arb. Forum June 9, 2009); see also Ceridian Corp. v. Versate Software, Inc. c/o Versata Hostmaster, FA 1259927 (Nat. Arb. Forum June 23, 2009); see also Enter. Rent-A-Car Co. v. Versata Software, Inc., c/o Versata Hostmaster, FA 1072909 (Nat. Arb. Forum Nov. 9, 2007).
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 THE KNOT mark. Previous panels have found that a trademark registration with a federal trademark authority is sufficient to establish rights in a mark. Prior panels have also found that a complainant is not required to register its mark within the country of the respondent. See Bloomberg L.P. v. Johnston, FA 760084 (Nat. Arb. Forum Oct. 25, 2006) (finding that the complainant had established rights in the BLOOMBERG mark through registration with the United States Patent and Trademark Office); see also Williams-Sonoma, Inc. v. Fees, FA 937704 (Nat. Arb. Forum Apr. 25, 2007) (finding that it is irrelevant whether the complainant has registered its trademark in the country of the respondent’s residence). Complainant holds multiple trademark registrations of the THE KNOT mark with the USPTO (e.g., Reg. No. 2,136,948 issued February 17, 1998). Therefore, the Panel finds Complainant has established rights in the THE KNOT mark through Complainant’s trademark registration with the USPTO under Policy ¶ 4(a)(i).
Complainant claims Respondent’s <thknot.com> domain name is confusingly similar to Complainant’s THE KNOT mark. The disputed domain name subtracts the letter “e” from Complainant’s mark and adds the generic top-level domain (“gTLD”) “.com.” The Panel finds the subtraction of a letter and the addition of a gTLD fail to sufficiently distinguish the disputed domain name from Complainant’s mark. See 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”); see also Hallelujah Acres, Inc. v. Manila Indus., Inc., FA 805029 (Nat. Arb. Forum Nov. 15, 2006) (holding that the respondent’s <hacrs.com> domain name was confusingly similar to the complainant’s HACRES mark because it omitted the letter “e” from the mark and added the generic top-level domain “.com”); see also Jerry Damson, Inc. v. Tex. Int’l Prop. Assocs., FA 916991 (Nat. Arb. Forum Apr. 10, 2007) (“The mere addition of a generic top-level domain (“gTLD”) “.com” does not serve to adequately distinguish the Domain Name from the mark.”). Therefore, the Panel finds Respondent’s <thknot.com> domain name is confusingly similar to Complainant’s THE KNOT mark pursuant to Policy ¶ 4(a)(i).
The Panel finds
Policy ¶ 4(a)(i) has been satisfied.
Complainant alleges that Respondent lacks rights and legitimate interests in the <thknot.com> domain name. Previous panels have found that when a complainant makes a prima facie case in support of its allegations, the burden shifts to the respondent to prove that it does have rights or legitimate interests pursuant to Policy ¶ 4(a)(ii). The Panel finds Complainant has made a prima facie case. Due to Respondent’s failure to respond to the Complaint, the Panel may assume that Respondent does not have rights or legitimate interests in the <thknot.com> domain name. However, the Panel will examine the record to determine whether Respondent has rights or legitimate interests in the disputed domain name under Policy ¶ 4(c). See 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); see also Vanguard Group, Inc. v. Collazo, FA 349074 (Nat. Arb. Forum Dec. 1, 2004) (finding that because the respondent failed to submit a Response, “Complainant’s submission has gone unopposed and its arguments undisputed. In the absence of a Response, the Panel accepts as true all reasonable allegations . . . unless clearly contradicted by the evidence.”).
Respondent has
offered no evidence, and there is no evidence in the record, suggesting that
Respondent is commonly known by the <thknot.com> domain name. Complainant has not consented to Respondent’s
use of the disputed domain name.
Complainant asserts that Respondent is not authorized to use the THE
KNOT mark. The WHOIS information
identifies Respondent as “Versata Software Inc. c/o Versata Hostmaster.” Therefore, the Panel finds that Respondent
has not established rights or legitimate interests in the <thknot.com>
domain name 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 St. Lawrence Univ. v.
Nextnet Tech, FA 881234 (Nat.
Arb. Forum Feb. 21, 2007) (concluding a respondent has no rights or legitimate
interests in a disputed domain name where there was no evidence in the record
indicating that the respondent was commonly known by the disputed domain name).
Respondent is using the <thknot.com> domain name to resolve to a website featuring
links to Complainant’s competitors in the wedding planning solutions services
industry. The Panel finds this use of
the confusingly similar disputed domain name is not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use of the domain
name under Policy ¶ 4(c)(iii). See Jerry Damson, Inc. v.
In addition, Respondent’s use of the <thknot.com> domain name constitutes
typosquatting. The Panel finds that
Respondent’s use of the domain name, that is a common misspelling of the THE
KNOT mark by subtracting the letter “e,” to redirect Internet users seeking
Complainant’s website fails to establish rights or interests pursuant to Policy
¶ 4(a)(ii). See Microsoft Corp. v. Domain Registration
The Panel finds
Policy ¶ 4(a)(ii) has been satisfied.
Complainant alleges Respondent’s use of the <thknot.com>
domain name is a part of a pattern
of bad faith use and registration.
Respondent has been a respondent in numerous UDRP proceedings in
which disputed domain names were transferred from Respondent to the
complainants in those cases. See Ashley Furniture Indus., Inc. v. Versate
Software, Inc. c/o Versata Hostmaster, FA 1259286 (Nat. Arb. Forum June 9,
2009); see also Ceridian Corp. v. Versate
Software, Inc. c/o Versata Hostmaster, FA 1259927 (Nat. Arb. Forum June 23,
2009); see also Enter. Rent-A-Car
Co. v. Versata Software, Inc., c/o Versata Hostmaster, FA 1072909 (Nat. Arb. Forum Nov. 9, 2007). The Panel finds this constitutes a pattern of
bad faith registration and use of domain names under Policy ¶ 4(b)(ii). See Westcoast Contempo Fashions Ltd. v.
Respondent’s <thknot.com> domain name resolves to a website featuring hyperlinks relating to Complainant’s competitors in the wedding planning business. Complainant claims that Respondent’s use of the disputed domain name disrupts Complainant’s wedding planning solutions services business because Internet users looking to buy products from Complainant may be redirected to Complainant’s competitors through Respondent’s confusingly similar website. The Panel finds Respondent’s use of the <thknot.com> domain name does disrupt Complainant’s wedding planning business and constitutes bad faith registration and use 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 St. Lawrence Univ. v. Nextnet Tech, FA 881234 (Nat. Arb. Forum Feb. 21, 2007) (“This Panel concludes that by redirecting Internet users seeking information on Complainant’s educational institution to competing websites, Respondent has engaged in bad faith registration and use pursuant to Policy ¶ 4(b)(iii).”).
The Panel infers
Respondent receives click-through fees from the links relating to Complainant’s
wedding planning solutions services competitors. Internet users may become confused as to
Complainant’s affiliation and sponsorship of the competing hyperlinks on the
website resolving from the disputed domain name. The Panel finds Respondent’s attempt to
profit from this confusion constitutes bad faith registration and use under
Policy ¶ 4(b)(iv).
See Zee TV USA, Inc. v. Siddiqi, FA 721969 (Nat. Arb.
Forum July 18, 2006) (finding that the respondent engaged in bad faith
registration and use by using a domain name that was confusingly similar to the
complainant’s mark to offer links to third-party websites that offered services
similar to those offered by the complainant); see also Univ. of Houston Sys. v. Salvia Corp., FA 637920 (Nat. Arb. Forum Mar.
21, 2006) (“Respondent is using the
disputed domain name to operate a website which features links to competing and
non-competing commercial websites from which Respondent presumably receives
referral fees. Such use for
Respondent’s own commercial gain is evidence of bad faith registration and use
pursuant to Policy ¶ 4(b)(iv).”).
Furthermore, Respondent has engaged in typosquatting through its use of the <thknot.com> domain name, which is a common misspelling of Complainant’s THE KNOT mark. Therefore, the Panel finds Respondent’s use of the disputed domain name constitutes bad faith registration and use pursuant to Policy ¶ 4(a)(iii). See The Vanguard Group, Inc. v. IQ Mgmt. Corp., FA 328127 (Nat. Arb. Forum Oct. 28, 2004) (“By engaging in typosquatting, [r]espondent has registered and used the <vangard.com> domain name in bad faith pursuant to Policy ¶ 4(a)(iii).”); Nat’l Ass’n of Prof’l Baseball League, Inc. v. Zuccarini, D2002-1011 (WIPO Jan. 21, 2003) (“Typosquatting … is the intentional misspelling of words with [the] intent to intercept and siphon off traffic from its intended destination, by preying on Internauts who make common typing errors. Typosquatting is inherently parasitic and of itself evidence of bad faith.”).
The Panel finds 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 <thknot.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: December 8, 2009
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page
National
Arbitration Forum