Russell Frey d/b/a edHelper v. Eighty Business Names c/o Domain Administrator
Claim Number: FA0911001293862
Complainant is Russell Frey d/b/a edHelper (“Complainant”), represented by Clifford
D. Hyra,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <edhelpercom.com>, registered with Rebel.com.
The undersigned certifies that she has acted independently and impartially and that to the best of her knowledge she has no known conflict in serving as Panelist in this proceeding. Hon. Carolyn Marks Johnson sits as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically
On
On
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On December 16, 2009, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Hon. Carolyn Marks Johnson to sit as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration Forum 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. The domain name that Respondent registered, <edhelpercom.com>, is confusingly similar to Complainant’s EDHELPER mark.
2. Respondent has no rights to or legitimate interests in the <edhelpercom.com> domain name.
3. Respondent registered and used the <edhelpercom.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Russell Frey
d/b/a edHelper, has provided products to assist educators via its website
resolving from its <edhelper.com> domain name since 2000. On
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."
Given 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 will draw such inferences as the Panel 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 Complainant to 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.
Preliminary Issue: Relevant Date of Respondent’s Registration
The <edhelpercom.com>
domain name was originally registered May 4,
2004; however, Complainant contends that Respondent acquired the <edhelpercom.com>
domain name in late May 2009. On
The Panel finds that Complainant’s registration of the
EDHELPER mark (Reg. No. 2,955,044 issued
The <edhelpercom.com>
domain name contains Complainant’s EDHELPER mark followed by the suffix “com,”
a common generic top level domain (“gTLD”), and the gTLD “.com.” The Panel finds that the disputed domain name
takes advantage of a common typing error of omitting the period between the
second and top-level domains.
Additionally, the addition of a gTLD is irrelevant to an analysis under
Policy ¶ 4(a)(i).
The Panel further finds that the only distinctive characteristic of the
disputed domain name is Complainant’s mark.
Therefore, the Panel finds that the <edhelpercom.com>
domain name is confusingly similar to Complainant’s EDHELPER mark under Policy
¶ 4(a)(i). See Bank of Am. Corp. v.
InterMos, FA 95092 (Nat. Arb. Forum
The Panel finds that Complainant satisfied the elements of ICANN Policy ¶ 4(a)(i).
Pursuant to Policy
¶ 4(a)(ii), Complainant must first establish a prima
facie case that Respondent has no rights or legitimate interests in the <edhelpercom.com> domain name. If
the Panel finds that Complainant’s allegations establish such a prima facie case,
the burden shifts to Respondent to show that it does indeed have rights or
legitimate interests in the disputed domain name pursuant to the guidelines in
Policy ¶ 4(c). The Panel finds
that Complainant’s allegations are sufficient to establish a prima facie case that Respondent has no
rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(a)(ii). Since no response was submitted in this
case, the Panel may presume that Respondent has no rights or legitimate
interests in the disputed domain name. However, the Panel will still examine the
record in consideration of the factors listed in Policy ¶ 4(c). See Domtar, Inc. v. Theriault., FA 1089426 (Nat. Arb.
Forum
The Panel finds no evidence in the record suggesting that
Respondent is commonly known by the <edhelpercom.com>
domain name. Complainant asserts that
Respondent has no license or agreement with Complainant authorizing Respondent
to use the EDHELPER mark, and the WHOIS information identifies Respondent as “Eighty Business Names c/o Domain Administrator.” Thus, Respondent is not commonly known by the
disputed domain name under Policy ¶ 4(c)(ii). See Tercent Inc. v. Lee Yi,
FA 139720 (Nat. Arb. Forum
Respondent is using the <edhelpercom.com> domain name to provide links to third-party websites offering credit
card services in direct competition with Complainant. Respondent’s use of a domain name that is
confusingly similar to Complainant’s EDHELPER mark to redirect Internet users interested in Complainant’s
services to websites that offer competition for those services is not a use in
connection with a bona fide offering
of goods or services pursuant to Policy ¶ 4(c)(i) or a
legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See TM Acquisition Corp. v. Sign Guards, FA 132439 (Nat. Arb. Forum
Additionally, typosquatting occurs when a respondent
purposefully includes typographical errors in the domain name to divert Internet
users who commit the typographical error of which the domain name seeks to take
advantage. The <edhelpercom.com> domain name takes
advantage of Internet users who omit the period before the gTLD “.com” at the
end of the domain name. The Panel finds
that Respondent engaged in typosquatting by adding the suffix “com” to the end
of Complainant’s mark. This is further
evidence that Respondent does not have rights or legitimate interests in the
disputed domain name pursuant to Policy ¶ 4(a)(ii). See Black & Decker
Corp. v. Khan, FA 137223 (Nat. Arb. Forum
The Panel finds that Complainant satisfied the elements of ICANN Policy ¶ 4(a)(ii).
Respondent is using the <edhelpercom.com>
domain name to resolve to a website containing links to third-party websites,
some of which directly compete with Complainant. The Panel finds that Respondent is using the disputed domain name
to disrupt Complainant’s business by diverting Internet users to Complainant’s
competitors. This evidence supports
findings of bad faith registration and use pursuant to Policy ¶ 4(b)(iii). See Puckett, Individually v. Miller,
D2000-0297 (WIPO
Under such use, the
Panel is permitted to make an inference that Respondent receives click-through
fees for diverting Internet users to third-party websites. Because Respondent’s domain name is
confusingly similar to Complainant’s EDHELPER mark, Internet users accessing Respondent’s <edhelpercom.com> domain name may become confused as to Complainant’s
affiliation with the resulting website.
The Panel therefore finds that Respondent’s use of the <edhelpercom.com> domain name constitutes bad faith registration and use
pursuant to Policy ¶ 4(b)(iv). See G.D. Searle & Co.
v. Celebrex Drugstore, FA 123933 (Nat. Arb.
Forum
Furthermore, the Panel finds that Respondent’s typosquatting
is evidence that Respondent registered and is using the <edhelpercom.com> domain name in bad
faith pursuant to Policy ¶ 4(a)(iii). See Nat’l Ass’n of Prof’l Baseball League, Inc.
v. Zuccarini, D2002-1011 (WIPO
The Panel finds that Complainant satisfied the elements of ICANN Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <edhelpercom.com> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Carolyn Marks Johnson, Panelist
Dated: December 30, 2009.
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