AOL LLC v. Michael Short
Claim Number: FA0911001292527
Complainant is AOL
LLC (“Complainant”), represented by James
R. Davis, of Arent Fox LLP,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <entadget.com>, registered with Godaddy.com, 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.
Terry F. Peppard as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On
On
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On December 2, 2009, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Terry F. Peppard as sole Panelist in this proceeding.
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:
Complainant holds several registrations of the ENGADGET
service mark (e.g., Reg. No.
3,232,307 issued
Respondent has no license from or agreement with Complainant authorizing Respondent to use the ENGADGET mark.
On
The disputed domain name resolves to a pay-per-click website that directs Internet users to third-party websites, some of which are Complainant’s direct business competitors.
Respondent’s <entadget.com> domain name is confusingly similar to Complainant’s ENGADGET service mark.
Respondent does not have any rights to or legitimate interests in the <entadget.com> domain name.
Respondent registered and uses the <entadget.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
(1) the domain name registered by Respondent is confusingly similar to a service mark in which Complainant has rights; and
(2) Respondent has no rights to or legitimate interests in respect of the domain name; and
(3) the same domain name was registered and is being used by Respondent in bad faith.
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 a 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:
i. the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
ii. Respondent has no rights or legitimate interests in respect of the domain name; and
iii. the domain name has been registered and is being used in bad faith.
Complainant’s registration of its ENGADGET service mark with
the USPTO is sufficient to establish Complainant’s rights in the mark pursuant
to Policy ¶ 4(a)(i).
See Innomed Techs., Inc. v. DRP Servs., FA 221171 (Nat. Arb. Forum
Registration of a mark in Respondent’s country of residence
is not necessary to establish Complainant’s rights in the mark under Policy ¶
4(a)(i). See Koninklijke KPN N.V. v. Telepathy Inc.,
D2001-0217 (WIPO
The <entadget.com> domain name slightly misspells
Complainant’s ENGADGET mark and merely adds the generic top-level domain
(“gTLD”) “.com.” The addition of a gTLD
is irrelevant in a Policy ¶ 4(a)(i) analysis. See Isleworth Land Co. v. Lost in Space, SA, FA 117330 (Nat. Arb.
Forum
[I]t
is a well established principle that generic top-level domains are irrelevant
when conducting a Policy ¶ 4(a)(i) analysis.
On the point of the spelling of the domain name, the domain
misspells Complainant’s ENGADGET service mark merely by replacing the letter
“g” with the letter “t.” These letters
are adjacent to one another on a standard QWERTY keyboard. Such a minor change to Complainant’s ENGADGET
mark results in the circumstances in confusing similarity between the mark and
domain pursuant to Policy ¶ 4(a)(i). See
Reuters Ltd. v. Global Net 2000, Inc., D2000-0441 (WIPO
The mere addition of a single letter to the
complainant’s mark does not remove the respondent’s domain names from the realm
of confusing similarity in relation to the complainant’s mark pursuant to Policy
¶ 4(a)(i).
The Panel therefore finds that Complainant has satisfied the proof requirements of Policy ¶ 4(a)(i).
The initial burden under Policy ¶ 4(a)(ii)
is on Complainant to prove that Respondent does not have any rights or
legitimate interests in the disputed domain name. Once Complainant has made out
a prima facie case, the burden shifts
to Respondent to show that it does have rights or legitimate interests. See Compagnie Generale des Matieres Nucleaires
v. Greenpeace Int’l, D2001-0376 (WIPO
Proving
that the Respondent has no rights or legitimate interests in respect of the
Domain Name requires the Complainant to prove a negative. For the purposes of
this sub paragraph, however, it is sufficient for the Complainant to show a
prima facie case and the burden of proof is then shifted on to the shoulders of
Respondent. In those circumstances, the
common approach is for respondents to seek to bring themselves within one of
the examples of paragraph 4(c) or put forward some other reason why they can
fairly be said to have a relevant right or legitimate interests in respect of
the domain name in question.
See also Do The Hustle, LLC v. Tropic Web,
D2000-0624 (WIPO
Complainant has presented a prima facie case for its contentions under this heading of the
Policy, while Respondent, for its part, has failed to respond to the
allegations of the Complaint. We are
therefore free to presume that Respondent has no rights to or legitimate
interests in the disputed domain name which are cognizable under the Policy. See,
for example, Am. Express Co. v. Fang Suhendro, FA 129120 (Nat. Arb. Forum, Dec. 30, 2002):
[B]ased on Respondent's failure to respond,
it is presumed that Respondent lacks all rights and legitimate interests in the
disputed domain name.
We elect nonetheless to examine the record before us to determine if there is in it any basis, in consideration of the tests set out in Policy ¶ 4(c), for concluding that Respondent has any such rights or interests.
We begin by noting that there is no evidence in the record
suggesting that Respondent is commonly known by the <entadget.com>
domain name. Moreover, Complainant
asserts, and Respondent does not deny, that Respondent has no license from or
agreement with Complainant authorizing Respondent to use the ENGADGET mark. And, finally, the pertinent WHOIS information
identifies Respondent only as “Michael Short.”
Thus we are forced to conclude that Respondent has not established
rights or legitimate interests in the disputed domain name under Policy ¶ 4(c)(ii). See Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb.
Forum
We also observe that there is no dispute as to Complainant’s
assertion to the effect that Respondent is using the <entadget.com>
domain name, which is confusingly similar to Complainant’s ENGADGET mark, to
redirect Internet users interested in Complainant’s services to third-party
websites, some of which are in competition with Complainant’s business. This use of the contested domain is not a use
in connection with a bona fide
offering of goods or services pursuant to Policy ¶ 4(c)(i),
or a noncommercial or fair use of the domain pursuant to Policy ¶
4(c)(iii). See TM
Acquisition Corp. v. Sign Guards, FA 132439 (Nat. Arb. Forum
Finally under this head, typo-squatting occurs where 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 <entadget.com>
domain name takes advantage of Internet users who mistype Complainant’s
ENGADGET mark. Respondent is thus engaged
in typo-squatting by misspelling Complainant’s mark in the disputed domain
name. This is further evidence that
Respondent does not have rights to or legitimate interests in the disputed
domain name pursuant to Policy ¶ 4(a)(ii). See LTD Commodities
LLC v. Party Night, Inc., FA 165155 (Nat.
Arb. Forum
The Panel therefore finds that Complainant has satisfied its evidentiary obligations under Policy ¶ 4(a)(ii).
Respondent registered the disputed domain name several years
after Complainant established rights in the ENGADGET mark for use in connection
with its technology blog business. Respondent is using the <entadget.com>
domain name to resolve to a website containing links to third-party sites that
divert Internet users to technology blogs competing with the business of
complainant. This use is evidence of bad
faith registration and use of the domain pursuant to Policy ¶ 4(b)(iii). See Puckett, Individually v. Miller,
D2000-0297 (WIPO
We have already taken account of the fact that there is no
denial of Complainant’s assertion that the website that resolves from the <entadget.com>
domain name displays links to websites in competition with Complainant’s
business. We may infer from the
circumstances presented that Respondent receives either pay-per-click fees or
advertising fees from this arrangement. Because
the disputed domain name is confusingly similar to Complainant’s mark, Internet
users are likely to become confused as to the possibility of Complainant’s
affiliation with or sponsorship of the disputed domain name and resolving
website. We infer from all this that Respondent
seeks to profit from this confusion by hosting advertisements on the resolving
website. Such use of the contested
domain is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv). See Am. Univ. v. Cook, FA
208629 (Nat. Arb. Forum
Registration and use of a domain name that incorporates
another's mark with the intent to deceive Internet users in regard to the
source or affiliation of the domain name is evidence of bad faith.
See also Philip Morris Inc. v. r9.net, D2003-0004 (WIPO
Furthermore, Respondent’s
practice of typo-squatting, as described above, is evidence that Respondent
registered and is using the <entadget.com> domain name in bad
faith pursuant to Policy ¶ 4(a)(iii). See Zone Labs, Inc. v. Zuccarini, FA 190613 (Nat. Arb. Forum
Respondent’s
registration and use of [the subject 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 Dermalogica, Inc.
v. Domains to Develop, FA 175201 (Nat. Arb. Forum
For these reasons, the Panel finds that Complainant has satisfied Policy ¶ 4(a)(iii).
Complainant having established all three elements required to be proven under the ICANN Policy, the Panel concludes that the relief requested must be GRANTED.
Accordingly, it is Ordered that the <entadget.com> domain name be TRANSFERRED forthwith from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: December 16, 2009
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