AOL Inc v. Travis Martin and Travis Martin c/o Dynadot Privacy
Claim Number: FA1001001301740
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 <fmapquest.com>, <mapqweat.com>, <wwwaimexpress.com>, and <wwwpopeater.com>, registered with Dynadot, LLC.
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.
James A. Carmody, Esq., as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on January 6, 2010; the National Arbitration Forum received a hard copy of the Complaint on January 11, 2010.
On January 6, 2010, Dynadot, LLC confirmed by e-mail to the National Arbitration Forum that the <fmapquest.com>, <mapqweat.com>, <wwwaimexpress.com>, and <wwwpopeater.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 January 14, 2010, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of February 3, 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@fmapquest.com, postmaster@mapqweat.com, postmaster@wwwaimexpress.com, and postmaster@wwwpopeater.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On February 10, 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed James A. Carmody, Esq., 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 <fmapquest.com> and <mapqweat.com> domain names are confusingly similar to Complainant’s MAPQUEST.COM mark. Respondent’s <wwwaimexpress.com> domain name is confusingly similar to Complainant’s AIMEXPRESS mark. Respondent’s <wwwpopeater.com> domain name is confusingly similar to Complainant’s POPEATER mark.
2. Respondent does not have any rights or legitimate interests in the <fmapquest.com>, <mapqweat.com>, <wwwaimexpress.com>, and <wwwpopeater.com> domain names.
3. Respondent registered and used the <fmapquest.com>, <mapqweat.com>, <wwwaimexpress.com>, and <wwwpopeater.com> domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, AOL Inc., operates a variety of online businesses. As part of these businesses, Complainant uses its MAPQUEST.COM, AIMEXPRESS and POPEATER marks to provide online products and services to its customers. Complainant has registered these marks with the United States Patent and Trademark Office (“USPTO”): (1) MAPQUEST.COM (Reg. No. 2,496,784 issued January 13, 1998); (2) AIMEXPRESS (Reg. No. 2,665,694 issued Dec. 24, 2002); and (3) POPEATER (Reg. No. 3,449,352 issued June 17, 2008).
Respondent registered the disputed domain names no earlier than September 10, 2008. The disputed domain names each resolve to websites displaying pay-per-click advertising and links to Complainant’s competitors.
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 has provided evidence of its registration of the following marks with the USPTO: (1) MAPQUEST.COM (Reg. No. 2,496,784 issued Jan. 13, 1998); (2) AIMEXPRESS (Reg. No. 2,665,694 issued Dec. 24, 2002); and (3) POPEATER (Reg. No. 3,449,352 issued June 17, 2008). The Panel finds these registrations are each sufficient to establish Complainant’s rights in its marks under Policy ¶ 4(a)(i). See Expedia, Inc. v. Tan, FA 991075 (Nat. Arb. Forum June 29, 2007) (“As the [complainant’s] mark is registered with the USPTO, [the] complainant has met the requirements of Policy ¶4(a)(i).”); see also AOL LLC v. Interrante, FA 681239 (Nat. Arb. Forum May 23, 2006) (finding that where the complainant had submitted evidence of its registration with the USPTO, “such evidence establishes complainant’s rights in the mark pursuant to Policy ¶4(a)(i).”). Therefore, the Panel finds Complainant has established rights in its MAPQUEST.COM, AIMEXPRESS, and POPEATER marks pursuant to Policy ¶4(a)(i).
Complainant contends the <fmapquest.com> and <mapqweat.com>
domain names are confusingly similar to its MAPQUEST.COM mark. The disputed domain names each contain a
misspelling of Complainant’s mark through the addition of a letter or
substition of letters within the mark.
The Panel finds these alterations lend the disputed domain names to be
confusingly similar to Complainant’s mark under Policy ¶ 4(a)(i). See
Amazon.com, Inc. v. Ikhizamah, D2002-1168 (WIPO Mar. 17, 2003) (holding
that the <zamazon.com> domain name was confusingly similar to the
complainant’s AMAZON.COM mark); see also
Complainant contends Respondent’s <wwwaimexpress.com> domain name is confusingly similar to Complainant’s AIMEXPRESS mark. The Panel concludes that the addition of the prefix “www” and the addition of the generic top-level domain “.com,” nevertheless render the disputed domain name confusingly similar to Complainant’s mark under Policy ¶ 4(a)(i). See Neiman Marcus Grp., Inc. v. S1A, FA 128683 (Nat. Arb. Forum Dec. 6, 2002) (holding confusing similarity has been established because the prefix "www" does not sufficiently differentiate the <wwwneimanmarcus.com> domain name from the complainant's NEIMAN-MARCUS mark); see also Amazon.com, Inc. v. J J Domains, FA 514939 (Nat. Arb. Forum Sept. 2, 2005) (“…Respondent’s <www-amazon.com> domain name is confusingly similar to Complainant’s AMAZON.COM mark, as the domain name merely adds the prefix “www-” to Complainant’s AMAZON.COM mark. Such changes are not enough to overcome the confusingly similar aspects of Respondent’s domain name pursuant to Policy ¶ 4(a)(i).”); 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.”).
Complainant
contends Respondent’s
<wwwpopeater.com> domain name is confusingly similar to
Complainant’s POPEATER marks due to the addition of the “www” prefix and the
addition of the “.com” generic top-level domain. The Panel agrees and finds the disptued
domain name is confusingly similar to Complainant’s mark under Policy ¶
4(a)(i). See Neiman Marcus Grp., supra; see also Amazon.com, Inc., supra; see
also Gardline Surveys Ltd., supra.
The Panel finds Policy ¶ 4(a)(i) has been satisfied.
Complainant has alleged Respondent does not have any rights
or legitimate interests in the disputed domain
names. The burden shifts to Respondent
to prove that it has rights or legitimate interests pursuant to Policy ¶4(a)(ii) once Complainant makes a prima facie case in support of its allegations. The Panel finds Complainant has made a
sufficient prima facie case. The Panel may assume Respondent does not have
rights or legitimate interests in the disputed domain names because of
Respondent’s failure to respond to the Complaint. 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 Do the Hustle, LLC v. Tropic Web,
D2000-0624 (WIPO Aug. 21, 2000) (“Failure of a respondent to come forward to
[contest complainant’s allegations] is tantamount to admitting the truth of
complainant’s assertions in this regard.”); see
also Bank of Am. Corp. v.
McCall, FA 135012 (Nat. Arb. Forum Dec.
31, 2002) (“Respondent's failure to respond not only results in its failure to
meet its burden, but also will be viewed as evidence itself that Respondent
lacks rights and legitimate interests in the disputed domain name.”).
Complainant contends Respondent is not commonly known by the
disputed domain names, and that Respondent has never been the owner or licensee
of Complainant’s MAPQUEST.COM, AIMEXPRESS or POPEATER marks. The WHOIS records for the disputed domain
names do not reflect the Respondent is commonly known by the disputed domain
names. Thus, the Panel finds Respondent is not commonly known by the disputed domain names pursuant
to Policy ¶4(c)(ii).
See Am. W. Airlines, Inc. v. Paik, FA 206396 (Nat. Arb. Forum Dec. 22, 2003) (“Respondent has registered the domain name
under the name ‘Ilyoup Paik a/k/a David Sanders.’ Given the WHOIS domain name registration
information, Respondent is not commonly known by the [<awvacations.com>]
domain name.”); see
also RMO, Inc. v. Burbridge, FA 96949 (Nat. Arb. Forum May
16, 2001) (interpreting Policy ¶4(c)(ii) "to
require a showing that one has been commonly known by the domain name prior to
registration of the domain name to prevail").
Respondent uses the disputed domain names to resolve to parked websites containing hyperlinks and advertisements resolving to Complainant and Complainant’s competitors. Respondent likely receives click-through fees from the parked websites resolving from the disputed domain names. The Panel finds Respondent’s use of the disputed domain names is not a bona fide offering of goods or services under Policy ¶4(c)(i) or legitimate noncommercial or fair use of the disputed domain names under Policy ¶4(c)(iii). See ALPITOUR S.p.A. v. Albloushi, FA 888651 (Nat. Arb. Forum Feb. 26, 2007) (rejecting the respondent’s contention of rights and legitimate interests in the <bravoclub.com> domain name because the respondent was merely using the domain name to operate a website containing links to various competing commercial websites, which the panel did not find to be 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 pursuant to Policy ¶4(c)(iii)); see also Skyhawke Techns., LLC v. Tidewinds Group, Inc., FA 949608 (Nat. Arb. Forum May 18, 2007) (“Respondent is using the <skycaddy.com> domain name to display a list of hyperlinks, some of which advertise Complainant and its competitors’ products. The Panel finds that this use of the disputed domain name does not constitute a bona fide offering of goods or services under Policy ¶4(c)(i), or a legitimate noncommercial or fair use under Policy ¶4(c)(iii).”).
Respondent is
taking advantage of Internet users that are attempting to reach Complainant’s
website by capitalizing on the misspelling of Complainant’s MAPQUEST.COM,
AIMEXPRESS or POPEATER marks. 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 Policy ¶ 4(a)(ii) has been satisfied.
Respondent’s disputed domain names resolve to websites that promote
Complainant’s competitors 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); see also Diners Club Int’l Ltd. v. Domain Admin******It's all in the name******, FA 156839 (Nat. Arb. Forum June 23, 2003) (“Registering a domain name which entirely incorporates a famous mark with the addition of the “www” prefix evidences not only actual knowledge of a trademark holder’s rights in that mark but an intent to ensnare Internet users who forget to type the period between the “www” and a second-level domain name while attempting to reach Complainant’s URL.”). Therefore, the Panel finds that Respondent has engaged in bad faith registration and use under Policy ¶ 4(a)(iii).
The Panel finds 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 <fmapquest.com>, <mapqweat.com>, <wwwaimexpress.com>, and <wwwpopeater.com> domain names be TRANSFERRED from Respondent to Complainant.
James A. Carmody, Esq., Panelist
Dated: February 24, 2010
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