NATIONAL ARBITRATION FORUM

 

DECISION

 

Rediff.com India Ltd. v. Sri Padma Infoway c/o Administrator

Claim Number: FA1001001302295

 

PARTIES

Complainant is Rediff.com India Ltd. (“Complainant”) represented by Pravin Anand, of Anand & Anand, India.  Respondent is Sri Padma Infoway c/o Administrator (“Respondent”), India.

 

REGISTRAR AND DISPUTED DOMAIN NAME 

The domain name at issue is <rediff.us>, registered with Directi Internet Solutions Pvt. Ltd. d/b/a Publicdomainregistry.com.

 

PANEL

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 Ralph Yachnin as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum (the “Forum”) electronically on January 11, 2010; the Forum received a hard copy of the Complaint on January 15, 2010.

 

On January 12, 2010, Directi Internet Solutions Pvt. Ltd. d/b/a Publicdomainregistry.com confirmed by e-mail to the Forum that the <rediff.us> domain name is 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 the U. S. Department of Commerce’s usTLD Dispute Resolution Policy (the “Policy”).

 

On January 21, 2010, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of February 10, 2010 by which Respondent could file a Response to the Complaint, was transmitted to Respondent in compliance with Paragraph 2(a) of the Rules for usTLD Dispute Resolution Policy (the “Rules”).

 

Having received no Response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.

 

On February 22, 2010, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the Forum appointed Judge Ralph Yachnin as Panelist.

 

Having reviewed the communications records, the Administrative Panel (the “Panel”) finds that the Forum has discharged its responsibility under Paragraph 2(a) of the Rules.  Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the Policy, the Rules, the Forum’s Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any Response from Respondent.

 

RELIEF SOUGHT

Complainant requests that the domain name be transferred from Respondent to Complainant.

 

PARTIES’ CONTENTIONS

A. Complainant

 

1.      Respondent’s <rediff.us> domain name is identical to Complainant’s REDIFF mark.

 

2.      Respondent does not have any rights or legitimate interests in the <rediff.us> domain name.

 

3.      Respondent registered and used the <rediff.us> domain name in bad faith.

 

B. Respondent failed to submit a Response in this proceeding.

 

FINDINGS

Complainant, Rediff.com India Ltd. is a worldwide leader in offering Internet-based services.  Complainant owns a trademark registration with the United States Patent and Trademark Office (“USPTO”) for the REDIFF mark (Reg. No. 3,101,026 filed April 20, 2000 and issued June 6, 2006).

 

Respondent registered the <rediff.us> domain name on August 8, 2005.  Respondent’s disputed domain name resolves to a website displaying third-party links to websites unrelated to Complainant.

 

DISCUSSION

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 the Complainant's undisputed representations pursuant to Paragraphs 5(f), 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 the 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 the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and

(2) the Respondent has no rights or legitimate interests in respect of the domain name; and

(3) the domain name has been registered or is being used in bad faith.

 

Given the similarity between the Uniform Domain Name Dispute Resolution Policy (“UDRP”) and the usTLD Policy, the Panel will draw upon UDRP precedent as applicable in rendering its decision.

 

Identical and/or Confusingly Similar

Respondent registered the <rediff.us> domain name on August 8, 2005. 

Complainant has provided evidence of a trademark registration of the REDIFF mark with the USPTO (Reg. No. 3,101,026 filed April 20, 2000 and issued June 6, 2006).  The Panel finds this registration satisfies Policy ¶ 4(a)(i) and thus establishes Complainant’s rights in its REDIFF mark.  See Microsoft Corp. v. Burkes, FA 652743 (Nat. Arb. Forum Apr. 17, 2006) (“Complainant has established rights in the MICROSOFT mark through registration of the mark with the USPTO.”); see also KCTS Television Inc. v. Get-on-the-Web Ltd., D2001-0154 (WIPO Apr. 20, 2001) (holding that it does not matter for the purpose of paragraph 4(a)(i) of the Policy whether the complainant’s mark is registered in a country other than that of the respondent’s place of business); see also Hershey Co. v. Reaves, FA 967818 (Nat. Arb. Forum June 8, 2007) (finding that the complainant’s rights in the KISSES trademark through registration of the mark with the USPTO “date back to the filing date of the trademark application and predate [the] respondent’s registration”).

 

Complainant asserts that Respondent’s <rediff.us> domain name is identical to Complainant’s REDIFF mark pursuant to Policy ¶ 4(a)(i).  Respondent’s disputed domain name contains Complainant’s mark in its entirety and adds the country-code top-level domain (“ccTLD”) “.us.”  The Panel finds that the addition of a ccTLD is irrelevant in distinguishing a disputed domain name from a registered mark.  See Lifetouch, Inc. v. Fox Photographics, FA 414667 (Nat. Arb. Forum Mar. 21, 2005) (“The addition of ‘.us’ to a mark fails to distinguish the domain name from the mark pursuant to the Policy.”); see also Tropar Mfg. Co. v. TSB, FA 127701 (Nat. Arb. Forum Dec. 4, 2002) (finding that since the addition of the country-code “.us” fails to add any distinguishing characteristic to the domain name, the <tropar.us> domain name is identical to the complainant’s TROPAR mark).  Therefore, pursuant to Policy ¶ 4(a)(i), the Panel finds that Respondent’s <rediff.us> domain name is identical to Complainant’s REDIFF mark.

 

The Panel finds that Policy ¶ 4(a)(i) has been satisfied.

 

Rights or Legitimate Interests

 

Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), and then the burden shifts to Respondent to show it does have rights or legitimate interests in the <rediff.us> domain name.  The Panel finds that Complainant has established a prima facie case.  See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name); see also AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006) (“Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light.  If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.”).

 

The Panel finds that Respondent has not presented any evidence demonstrating that it is the owner or beneficiary of a mark identical to the <rediff.us> domain name.  Therefore, the Panel finds that Respondent cannot satisfy Policy ¶ 4(c)(i).  See Meow Media Inc. v. Basil, FA 113280 (Nat. Arb. Forum Aug. 20, 2002) (finding that there was no evidence that the respondent was the owner or beneficiary of a mark that is identical to the <persiankitty.com> domain name); see also Pepsico, Inc. v. Becky, FA 117014 (Nat. Arb. Forum Sept. 3, 2002) (holding that because the respondent did not own any trademarks or service marks reflecting the <pepsicola.us> domain name, it had no rights or legitimate interests pursuant to Policy ¶ 4(c)(i)).

 

Complainant contends that Respondent is neither commonly known by nor licensed to register the disputed domain name.  Respondent’s WHOIS information identifies registrant as “Sri Padma Infoway c/o Administrator.”  The Panel finds that Respondent’s failure to respond to the Complaint and absent any affirmative evidence that Respondent is commonly known by the disputed domain name, Respondent is not commonly known by the disputed domain name.  Therefore, pursuant to Policy ¶ 4(c)(iii), the Panel finds that Respondent lacks rights and legitimate interests in the disputed domain name.  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 St. Lawrence Univ. v. Nextnet Tech, FA 881234 (Nat. Arb. Forum Feb. 21, 2007) (concluding a respondent has no rights or legitimate interests in a disputed domain name where there was no evidence in the record indicating that the respondent was commonly known by the disputed domain name).

 

Respondent’s disputed domain name resolves to a website displaying third-party links to websites unrelated to Complainant.  The Panel presumes that Respondent receives click-through fees for these hyperlinks.  Therefore, the Panel finds that Respondent’s use of the disputed domain name does not represent a bona fide offering of goods or services under Policy ¶ 4(c)(ii) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iv).  See Constellation Wines U.S., Inc. v. Tex. Int’l Prop. Assocs., FA 948436 (Nat. Arb. Forum May 8, 2007) (finding that the respondent had no rights or legitimate interests under Policy ¶¶ 4(c)(i) or 4(c)(iii) by using the disputed domain name to operate a website featuring links to goods and services unrelated to the complainant); see also Seiko Kabushiki Kaisha v. CS into Tech, FA 198795 (Nat. Arb. Forum Dec. 6, 2003) (“Diverting customers, who are looking for products relating to the famous SEIKO mark, to a website unrelated to the mark is not a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor does it represent a noncommercial or fair use under Policy ¶ 4(c)(iii).”).

 

The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.

 

Registration and Use in Bad Faith

 

Respondent’s identical disputed domain name resolves to a website that displays the aforementioned hyperlinks, for which, presumably, Respondent receives click-through fees.  The Panel finds that this use of the disputed domain name by Respondent creates a likelihood of confusion as to Complainant’s affiliation with the disputed domain name.  Accordingly, the Panel finds that Respondent’s conduct constitutes bad faith registration and use under Policy ¶ 4(b)(iv).  See Ass’n of Junior Leagues Int’l Inc. v. This Domain Name My Be For Sale, FA 857581 (Nat. Arb. Forum Jan. 4, 2007) (holding that the respondent’s use of the disputed domain name to maintain a pay-per-click site displaying links unrelated to the complainant and to generate click-through revenue suggested bad faith registration and use under Policy ¶ 4(b)(iv)); see also Reese v. Morgan, FA 917029 (Nat. Arb. Forum Apr. 5, 2007) (holding that the respondent was taking advantage of the confusing similarity between the <lilpunk.com> domain name and the complainant’s LIL PUNK mark by using the contested domain name to maintain a website with various links to third-party websites unrelated to Complainant, and that such use for the respondent’s own commercial gain demonstrated bad faith registration and use pursuant to Policy ¶ 4(b)(iv)).

 

The Panel finds that Policy ¶ 4(a)(iii) has been satisfied.

 

DECISION

Having established all three elements required under the usTLD Policy, the Panel concludes that relief shall be GRANTED.

 

Accordingly, it is Ordered that the <rediff.us> domain name be TRANSFERRED from Respondent to Complainant.

 

 

Hon. Ralph Yachnin, Panelist

Justice, Supreme Court, NY (Ret.)

Dated: March 4, 2010

 

 

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