AOL LLC v. Huang Li Technology CorpDomain Admin
Claim Number: FA0912001296625
Complainant is AOL LLC (“Complainant”), represented by James
R. Davis, of Arent Fox LLP, DC. Respondent is Huang Li Technology CorpDomain Admin
(“Respondent”),
REGISTRAR AND DISPUTED DOMAIN
NAMES
The domain names at issue are <engadgeth.com>, <engadgetmoile.com>, <engadhet.com> and <engadgget.com>, registered with Dynadot, LLC.
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 December 1, 2009; the National Arbitration Forum received a hard copy of the Complaint on December 2, 2009.
On December 1, 2009, Dynadot, LLC confirmed by e-mail to the National Arbitration Forum that the <<engadgeth.com>, <engadgetmoile.com>, <engadhet.com> and <engadgget.com> domain names are registered with Dynadot, LLC and that Respondent is the current registrant of the names. Dynadot, LLC has verified that Respondent is bound by the Dynadot, LLC 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 December 7, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of December 28, 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@engadgeth.com, postmaster@engadgetmoile.com, postmaster@engadhet.com, and postmaster@engadgget.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On January 5, 2010, 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 <engadgeth.com>, <engadgetmoile.com>, <engadhet.com> and <engadgget.com> domain names are confusingly similar to Complainant’s ENGADGET mark.
2. Respondent does not have any rights or legitimate interests in the <engadgeth.com>, <engadgetmoile.com>, <engadhet.com> and <engadgget.com> domain names.
3. Respondent registered and used the <engadgeth.com>, <engadgetmoile.com>, <engadhet.com> and <engadgget.com> domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, AOL LLC, holds
several registrations of the ENGADGET mark (e.g., Reg. No. 3,232,307 issued
Respondent, Huang Li Technology CorpDomain Admin, registered the <engadgeth.com>, <engadgetmoile.com>, <engadhet.com> and <engadgget.com> domain names on February 27, 2009. The websites resolving from the disputed domain names display links to third-party websites, some of whom directly compete with Complainant.
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, AOL LLC, has
registered the ENGADGET mark (e.g.,
Reg. No. 3,232,607 issued
Complainant contends the <engadgeth.com>, <engadgetmoile.com>,
<engadhet.com> and <engadgget.com> domain
names are each confusingly similar to Complainant’s ENGADGET mark. The disputed domain names contain
Complainant’s mark with one or more of the following alterations: (1) the
addition of a letter to the mark; (2) the substitution of a letter within the
mark; (3) the addition of a misspelled generic term (i.e. “moile,” presumably a
misspelled version of “mobile”); and/or (4) the addition of the generic
top-level domain (“gTLD”) “.com.” The
Panel finds none of these combinations of alterations sufficiently distinguish
any of these disputed domain names from Complainant’s ENGADGET mark. Thus, the Panel finds the disputed domain
names are each confusingly similar to Complainant’s mark under Policy ¶ 4(a)(i). See Reuters Ltd. v. Global Net 2000, Inc.,
D2000-0441 (WIPO
The Panel finds Policy ¶ 4(a)(i) has been satisfied.
Initially under Policy ¶ 4(a)(ii),
Complainant must prove that Respondent lacks rights and legitimate interests in
the disputed domain names. Once Complainant has made a prima
facie case, the burden shifts to Respondent to show that it does have
rights or legitimate interests pursuant to the factors listed in Policy ¶ 4(c). See Compagnie Generale des Matieres Nucleaires
v. Greenpeace Int’l, D2001-0376 (WIPO
There is no evidence in the record suggesting that
Respondent is commonly known by the disputed domain names. Complainant asserts that Respondent has no
license or agreement with Complainant authorizing Respondent to use the ENGADGET
mark. The WHOIS information identifies the
registrant of each of the disputed domain names as “Huang Li Technology CorpDomain Admin.” Thus, the Panel finds there is no evidence
Respondent is commonly known by the disputed domain names under Policy ¶ 4(c)(ii). See Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb. Forum
Respondent is using the confusingly similar disputed domain
names to redirect Internet users interested in Complainant’s technology blog
services to third-party websites that compete with Complainant. The Panel finds this use 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 disputed domain names pursuant to Policy ¶
4(c)(iii). See TM
Acquisition Corp. v. Sign Guards, FA 132439 (Nat. Arb. Forum
Furthermore, Complainant contends the disputed domain names
each take advantage of Internet users who mistype Complainant’s ENGADGET mark. The Panel finds that Respondent has engaged
in typosquatting by misspelling Complainant’s mark in the disputed domain names. This is further evidence that Respondent does
not have rights or legitimate interests in the disputed domain names pursuant
to Policy ¶ 4(a)(ii).
See LTD Commodities LLC v. Party
Night, Inc., FA 165155 (Nat. Arb. Forum
The Panel finds Policy ¶ 4(a)(ii) has been satisfied.
Respondent registered the disputed domain names on February
27, 2009 and since then Respondent has been using the disputed domain names to
resolve to a website containing links to third-party websites. These third-party websites link Internet
users to competing technology blogs and other related services. The Panel finds this use of the disputed
domain names is evidence of bad faith registration and use pursuant to Policy ¶
4(b)(iii). See Puckett, Individually v. Miller,
D2000-0297 (WIPO
The disputed domain names resolve to websites displaying
links to third-party websites competing with Complainant’s technology blog. The Panel presumes Respondent receives click-through
fees for placing these links on the resolving websites. Since the disputed domain names are confusingly
similar to Complainant’s mark, Internet users are likely to become confused as
to Complainant’s affiliation with the disputed domain names and resolving
websites. Respondent was seeking to profit
from this confusion by hosting advertisements on the resolving website. The Panel finds this use is evidence of Respondent’s
bad faith registration and use of the disputed domain names pursuant to Policy
¶ 4(b)(iv). See Am. Univ. v. Cook, FA 208629 (Nat.
Arb. Forum
Furthermore, the
Panel finds that Respondent’s engagement in typosquatting is evidence that
Respondent registered and is using the disputed domain names in bad faith under to Policy ¶
4(a)(iii). See Zone Labs, Inc. v. Zuccarini, FA 190613 (Nat. Arb. Forum
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <engadgeth.com>, <engadgetmoile.com>, <engadhet.com> and <engadgget.com> domain names be TRANSFERRED from Respondent to Complainant.
Judge Harold Kalina (Ret.), Panelist
Dated: January 18, 2010
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