Xcentric Ventures, LLC d/b/a www.RipoffReport.com v. yourdomainserver.com c/o YDS Web Solution
Claim Number: FA0912001298258
Complainant is Xcentric Ventures, LLC d/b/a www.RipoffReport.com (“Complainant”), represented by David Gingras, Arizona, USA. Respondent is yourdomainserver.com c/o YDS Web Solution (“Respondent”), California, USA.
REGISTRAR AND DISPUTED DOMAIN
NAMES
The domain names at issue are <ripoff-reporters.com>, <ripoff-reporter.com>, <ripoff-reporters.net>, <ripoff-reporter.net>, <ripoff-reporters.org>, <ripoff-reporter.org>, <ripoff-reporter.info>, registered with Directi Internet Solutions Pvt. Ltd. d/b/a Publicdomainregistry.com.
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.
Hon. Karl V. Fink (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on December 9, 2009; the National Arbitration Forum received a hard copy of the Complaint on December 14, 2009.
On December 10, 2009 and December 18, 2009, Directi Internet Solutions Pvt. Ltd. d/b/a Publicdomainregistry.com confirmed by e-mail to the National Arbitration Forum that the <ripoff-reporters.com>, <ripoff-reporter.com>, <ripoff-reporters.net>, <ripoff-reporter.net>, <ripoff-reporters.org>, <ripoff-reporter.org>, and <ripoff-reporter.info> domain names are registered with Directi Internet Solutions Pvt. Ltd. d/b/a Publicdomainregistry.com and that Respondent is the current registrant of the name. Directi Internet Solutions Pvt. Ltd. d/b/a Publicdomainregistry.Com has verified that Respondent is bound by the Directi Internet Solutions Pvt. Ltd. d/b/a Publicdomainregistry.com 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 23, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of January 12, 2010 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@ripoff-reporters.com, postmaster@ripoff-reporter.com, postmaster@ripoff-reporters.net, postmaster@ripoff-reporter.net, postmaster@ripoff-reporters.org><ripoff-reporter.org, and postmaster@ripoff-reporter.info by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On January 25, 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Hon. Karl V. Fink (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 <ripoff-reporters.com>, <ripoff-reporter.com>, <ripoff-reporters.net>, <ripoff-reporter.net>, <ripoff-reporters.org>, <ripoff-reporter.org>, and <ripoff-reporter.info> domain names are confusingly similar to Complainant’s RIP-OFF REPORT mark.
2. Respondent does not have any rights or legitimate interests in the <ripoff-reporters.com>, <ripoff-reporter.com>, <ripoff-reporters.net>, <ripoff-reporter.net>, <ripoff-reporters.org>, <ripoff-reporter.org>, and <ripoff-reporter.info> domain names.
3. Respondent registered and used the <ripoff-reporters.com>, <ripoff-reporter.com>, <ripoff-reporters.net>, <ripoff-reporter.net>, <ripoff-reporters.org>, <ripoff-reporter.org>, and <ripoff-reporter.info> domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Xcentric Ventures, LLC, operates a website at
the <ripoffreport.com> domain name providing a consumer reporting forum
for Internet users. Complainant’s
predecessor-in-interest registered the RIP-OFF REPORT mark with the United
States Patent and Trademark Office (“USPTO”) on June 7, 2005 (Reg. No.
2,958,949). Complainant was assigned
rights in its RIP-OFF REPORT mark on
Respondent registered all the disputed domain names on March 29, 2009. The disputed domain names each resolve to sponsored link websites that offer links to third-party consumer focused websites, some of which compete with Complainant’s consumer reporting services.
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’s predecessor-in-interest registered the RIP-OFF
REPORT mark with the USPTO on
Respondent’s <ripoff-reporters.com>, <ripoff-reporter.com>, <ripoff-reporters.net>, <ripoff-reporter.net>, <ripoff-reporters.org>, <ripoff-reporter.org>, and <ripoff-reporter.info> domain names each contain Complainant’s RIP-OFF REPORT mark with the addition of the letters “er,” or “ers” to the end of the mark, as well as the addition of a generic top-level domain “.com,” “.net,” “.org,” or “.info.” The Panel finds none of these alterations sufficiently distinguish the disputed domain names from Complainant’s mark. Therefore, the Panel finds the disputed domain names are confusingly similar to Complainant’s RIP-OFF REPORT mark under Policy ¶ 4(a)(i). See Victoria’s Secret v. Zuccarini, FA 95762 (Nat. Arb. Forum Nov. 18, 2000) (finding that, by misspelling words and adding letters to words, a respondent does not create a distinct mark but nevertheless renders the domain name confusingly similar to the complainant’s marks); see also Kelson Physician Partners, Inc. v. Mason, CPR003 (CPR 2000) (finding that <kelsonmd.com> is identical or confusingly similar to the complainant’s federally registered service mark, KELSON); see also Isleworth Land Co. v. Lost in Space, SA, FA 117330 (Nat. Arb. Forum Sept. 27, 2002) (“[I]t is a well established principle that generic top-level domains are irrelevant when conducting a Policy ¶ 4(a)(i) analysis.”); see also Gardline Surveys Ltd. v. Domain Fin. Ltd., FA 153545 (Nat. Arb. Forum May 27, 2003) (“The addition of a top-level domain is irrelevant when establishing whether or not a mark is identical or confusingly similar, because top-level domains are a required element of every domain name.”).
The Panel finds Policy ¶ 4(a)(i) has been satisfied.
Complainant alleges that Respondent lacks rights and legitimate interests in the disputed domain names. Past 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 the Respondent’s failure to respond to the Complaint, the Panel may assume that Respondent does not have rights or legitimate interests in the disputed domain names. However, the Panel will examine the record to determine whether Respondent has rights or legitimate interests in the disputed domain names under Policy ¶ 4(c). See Domtar, Inc. v. Theriault., FA 1089426 (Nat. Arb. Forum Jan. 4, 2008) (“It is well established that, once a complainant has made out a prima facie case in support of its allegations, the burden shifts to respondent to show that it does have rights or legitimate interests pursuant to paragraph 4(a)(ii) of the Policy.”); see also Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO Dec. 21, 2000) (finding that failing to respond allows a presumption that the complainant’s allegations are true unless clearly contradicted by the evidence).
Complainant asserts that Respondent has never been authorized to use the RIP-OFF REPORT mark. Complainant further provides the WHOIS information as evidence to the Panel, this evidence does not indicate the registrant of the disputed domain names is commonly known by any variation of the disputed domain names. Therefore, the Panel finds Respondent is not commonly known by the disputed domain names under 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 Educ. Broad. Corp. v. DomainWorks Inc., FA 882172 (Nat. Arb. Forum Apr. 18, 2007) (concluding that the respondent was not commonly known by the <thirteen.com> domain name based on all evidence in the record, and the respondent did not counter this argument in its response).
Respondent’s disputed domain names were
all registered on March 29, 2009. The
disputed domain names resolve to sponsored link websites containing
click-through links to various third party websites that compete with
Complainant. The Panel finds that
Respondent’s use of the disputed domain names is neither a bona fide offering of goods and services pursuant to Policy ¶
4(c)(i), nor a legitimate noncommercial or fair use pursuant to Policy ¶
4(c)(iii). See 24 Hour Fitness
USA, Inc. v. 24HourNames.com-Quality Domains For
The Panel finds Policy ¶ 4(a)(ii) has been satisfied.
Complainant contends that Respondent is using the disputed
domain names to divert Internet users seeking Complainant’s website to the
competitive links for third-party websites that resolve from the disputed
domain names. The Panel finds that
Respondent’s use of the disputed domain names disrupts Complainant’s business, and
is evidence of registration and use in bad faith pursuant to Policy ¶ 4(b)(iii).
The Panel infers that Respondent receives click-through fees from the use of the aforementioned competing hyperlinks. Respondent is attempting to profit by creating a likelihood of confusion as to Complainant’s affiliation with the disputed domain names and the resolving websites. Therefore, the Panel finds that Respondent’s use of the disputed domain names 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 University 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).”).
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 <ripoff-reporters.com>, <ripoff-reporter.com>, <ripoff-reporters.net>, <ripoff-reporter.net>, <ripoff-reporters.org>, <ripoff-reporter.org>, and <ripoff-reporter.info> domain names be TRANSFERRED from Respondent to Complainant.
Hon. Karl V. Fink (Ret.), Panelist
Dated: January 8, 2010
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