AOL Inc v. This domain is not active. a/k/a Invalid Whois, domain disabled
Claim Number: FA0912001299054
Complainant is AOL Inc (“Complainant”), represented by James
R. Davis, of Arent Fox LLP,
REGISTRAR AND DISPUTED DOMAIN
NAMES
The domain names at issue are <mapquet.com> and <mpquest.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.
Hon. Karl V. Fink (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on December 14, 2009; the National Arbitration Forum received a hard copy of the Complaint on December 16, 2009.
On December 15, 2009, Directnic, Ltd confirmed by e-mail to the National Arbitration Forum that the <mapquet.com> and <mpquest.com> domain names are registered with Directnic, Ltd and that Respondent is the current registrant of the names. 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 December 17, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of January 6, 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@mapquet.com and postmaster@mpquest.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 19, 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 <mapquet.com> and <mpquest.com> domain names are confusingly similar to Complainant’s MAPQUEST mark.
2. Respondent does not have any rights or legitimate interests in the <mapquet.com> and <mpquest.com> domain name.
3. Respondent registered and used the <mapquet.com> and <mpquest.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, AOL LLC, uses the MAPQUEST mark in association with its offering Internet-based maps, geographical information, and travel-related products. Complainant owns numerous trademark registrations with the United States Patent and Trademark Office (“USPTO”) for the MAPQUEST mark (e.g., Reg. No. 2,129,378 issued January 13, 1998).
Respondent registered the <mapquet.com> and <mpquest.com> domain names on or after March 30, 2000. Respondent’s disputed domain names resolve to websites displaying third-party websites offering maps, geographical information, and travel-related products in competition 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 owns multiple trademark registrations for the
MAPQUEST mark with the USPTO (e.g.,
Reg. No. 2,129,378 issued January 13, 1998).
The Panel finds that Complainant has established rights in the MAPQUEST
mark for purposes of Policy ¶ 4(a)(i) through its trademark registrations with
the USPTO. See Automotive Racing Products, Inc. v. Linecom, FA 836787
(Nat. Arb. Forum Dec. 21, 2006) (finding that the Complainant’s federal
trademark registration established its rights in the mark under Policy ¶
4(a)(i)); see
also
Complainant argues that Respondent’s disputed domain names are confusingly similar to Complainant’s MAPQUEST mark pursuant to Policy ¶ 4(a)(i). Respondent’s disputed domain names contain misspelled versions of Complainant’s mark and add the generic top-level domain (“gTLD”) “.com.” The Panel finds that a disputed domain name that contains a misspelled version of a complainant’s mark, in this case the omission of one letter, fails to bring about a distinguishing characteristic and instead creates a confusing similarity between the disputed domain name and the complainant’s mark. See Reuters Ltd. v. Global Net 2000, Inc., D2000-0441 (WIPO July 13, 2000) (finding that a domain name which differs by only one letter from a trademark has a greater tendency to be confusingly similar to the trademark where the trademark is highly distinctive); see also 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). In addition, the Panel finds that the addition of a gTLD fails to distinguish a disputed domain name from a registered mark. See Trip Network Inc. v. Alviera, FA 914943 (Nat. Arb. Forum Mar. 27, 2007) (concluding that the affixation of a gTLD to a domain name is irrelevant to a Policy ¶ 4(a)(i) analysis); see also Rollerblade, Inc. v. McCrady, D2000-0429 (WIPO June 25, 2000) (finding that the top level of the domain name such as “.net” or “.com” does not affect the domain name for the purpose of determining whether it is identical or confusingly similar). Therefore, the Panel finds Respondent’s disputed domain names are confusingly similar to Complainant’s MAPQUEST mark pursuant to Policy ¶ 4(a)(i).
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant contends that Respondent does not have any
rights or legitimate interests in the disputed domain names. Once a prima
facie case has been established by Complainant, the burden then shifts to
Respondent to demonstrate its rights or legitimate interests in the disputed
domain name pursuant to Policy ¶ 4(c).
The Panel finds that Complainant has adequately established a prima facie case in these
proceedings. Since Respondent has failed
to respond to the allegations against it, the Panel may assume that Respondent
lacks any rights or legitimate interests in the disputed domain names. See
Intel Corp. v. Macare, FA 660685 (Nat. Arb. Forum Apr. 26, 2006)
(finding the “complainant must first make a prima facie case that [the]
respondent lacks rights and legitimate interests in the disputed domain names
under Policy ¶ 4(a)(ii), and then the burden shifts to [the] respondent to show
it does have rights or legitimate interests.”); see also 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.”).
Complainant contends that Respondent is not commonly known by and has never been licensed to register the disputed domain names. The Panel finds that registrant’s WHOIS information demonstrates that Respondent is not commonly known by the disputed domain names. Therefore, pursuant to Policy ¶ 4(c)(ii), Respondent lacks rights and legitimate interests in the disputed domain names. See Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003) (stating “nothing in Respondent’s WHOIS information implies that Respondent is ‘commonly known by’ the disputed domain name” as one factor in determining that Policy ¶ 4(c)(ii) does not apply); see also Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Nat. Arb. Forum July 17, 2006) (concluding that the respondent was not commonly known by the <coppertown.com> domain name where there was no evidence in the record, including the WHOIS information, suggesting that the respondent was commonly known by the disputed domain name).
Respondent’s disputed
domain names resolve to websites featuring advertisements and links relating to
Complainant’s competitors in the map and travel-related products industry.
The Panel may infer that Respondent profits through the generation of
click-through fees from the links to Complainant’s competitors.
Therefore, the Panel finds that Respondent’s use of the disputed domain names
is not in connection with a bona fide offering of goods or services
under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use of the
disputed domain name under Policy ¶ 4(c)(iii). See 24 Hour Fitness
USA, Inc. v. 24HourNames.com-Quality Domains For
Respondent is
taking advantage of Internet users that are attempting to reach Complainant’s
website by capitalizing on the misspelling of Complainant’s MAPQUEST
mark. The Panel finds that Respondent’s
engagement in the practice of typosquatting is evidence that Respondent lacks
rights and legitimate interests in the disputed domain names under Policy ¶ 4(a)(ii). See
Microsoft Corp. v. Domain Registration
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Respondent’s disputed domain names resolve to websites that promote
Complainant’s competitors in the map and travel-related products industry
through click-through links. Such an
activity clearly disrupts Complainant’s business, as Internet users seeking
Complainant’s products will be redirected to Complainant’s competitors. This qualifies as bad faith registration and
use under Policy ¶ 4(b)(iii). See
Respondent has created a likelihood of confusion for
commercial gain as to Complainant’s source and affiliation with the disputed domain names
and the resolving websites. Respondent
is presumably monetarily benefiting through the receipt of referral fees
accrued when Internet users click on the competitive links. This constitutes evidence that Respondent has
registered and used the disputed domain names in bad faith under Policy ¶
4(b)(iv). See Asbury Auto. Group, Inc. v.
The Panel has already determined that Respondent has engaged in typosquatting. This practice has been found to constitute evidence by itself of bad faith registration and use under Policy ¶ 4(a)(iii). See, e.g., Nextel Commc’ns Inc. v. Geer, FA 477183 (Nat. Arb. Forum July 15, 2005) (finding that the respondent’s registration and use of the <nextell.com> domain name was in bad faith because the domain name epitomized typosquatting in its purest form). Therefore, the Panel finds that Respondent has engaged in bad faith registration and use under Policy ¶ 4(a)(iii). See Dermalogica, Inc. v. Domains to Develop, FA 175201 (Nat. Arb. Forum Sept. 22, 2003) (finding that the <dermatalogica.com> domain name was a “simple misspelling” of the complainant's DERMALOGICA mark which indicated typosquatting and bad faith pursuant to Policy 4 ¶ (a)(iii)).
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 <mapquet.com> and <mpquest.com> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Karl V. Fink (Ret.), Panelist
Dated: February 2, 2010
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