Cybertania, Inc v. Cornea Daniel and Dobre Cornel
Claim Number: FA1002001307200
Complainant is Cybertania
Inc (“Complainant”), represented by Leo
REGISTRAR AND DISPUTED DOMAIN
NAMES
The domain names at issue are <mydreecams.com> and <myfreccams.com>, registered with Everyones Internet, Ltd. d/b/a Resellone.net.
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.
Honorable Karl V. Fink (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on February 8, 2010. With its Complaint, Complainant also chose to proceed entirely electronically under the new Rules for Uniform Domain Name Dispute Resolution Policy (“Rules”) and the new Forum’s Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (“Supplemental Rules”) by submitted an “opt-in” form available on the Forum’s website.
On February 10, 2010, Everyones Internet, Ltd. d/b/a Resellone.net confirmed by e-mail to the National Arbitration Forum that the <mydreecams.com> and <myfreccams.com> domain name are registered with Everyones Internet, Ltd. d/b/a Resellone.net and that Respondent is the current registrant of the names. Everyones Internet, Ltd. d/b/a Resellone.net has verified that Respondent is bound by the Everyones Internet, Ltd. d/b/a Resellone.net 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 February 17, 2010, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 9, 2010 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@mydreecams.com and postmaster@myfreccams.com by e-mail. Also on February 17, 2010, the Written Notice of the Complaint, notifying Respondent of the email addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On March 12, 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Honorable 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 (effective March 1, 2010, but opted-in to by Complainant for this case) "to employ reasonably available means calculated to achieve actual notice to Respondent" through submission of a Written Notice, as defined in Rule 1. 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 <mydreecams.com> and <myfreccams.com> domain names are confusingly similar to Complainant’s MYFREECAMS.COM mark.
2. Respondent does not have any rights or legitimate interests in the <mydreecams.com> and <myfreccams.com> domain names.
3. Respondent registered and used the <mydreecams.com> and <myfreccams.com> domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Cybertania, Inc., offers adult social and entertainment services on the Internet. Complainant operates a website resolving from the <myfreecams.com> domain name to offer these services. Complainant holds a trademark registration with the United States Patent and Trademark Office ("USPTO") for its MYFREECAMS.COM mark (Reg. No. 3,495,750 issued September 2, 2008).
Respondent registered the <mydreecams.com> and <myfreccams.com> domain names no earlier than January 16, 2010. The disputed domain names resolve to websites that ask Complainant’s customers to enter their personal username and password. Respondent is then able to use this personal information to access Complainant’s website and additional personal information of Complainant’s customers.
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.
Preliminary Issue:
Multiple Respondents
In the instant proceedings, Complainant has alleged that the entities which control the domain names at issue are effectively controlled by the same person and/or entity, which is operating under several aliases. Paragraph 3(c) of the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”) provides that a “complaint may relate to more than one domain name, provided that the domain names are registered by the same domain name holder.” The Panel finds that the screenshots of each of the <mydreecams.com> and <myfreccams.com> domain names show that the use of the disputed domain names is identical. Complainant claims that both disputed domain names were used with exactly the same HTML code. According to Complainant, the disputed domain names share the same DNS servers and are held under a single DNS account. The Panel finds that both disputed domain names were registered with the same registrar and share nearly identical contact information: similar addresses and similar e-mail addresses. Therefore, the Panel finds that the <mydreecams.com> and <myfreccams.com> domain names are controlled by a single entity operating under multiple aliases.
Complainant holds a trademark registration with the USPTO
for its MYFREECAMS.COM mark (Reg. No. 3,495,750 issued September 2, 2008). The Panel finds Complainant’s trademark
registration is sufficient to establish rights in the MYFREECAMS.COM mark
pursuant to Policy ¶ 4(a)(i).
Complainant claims Respondent’s <mydreecams.com> and <myfreccams.com> domain names are confusingly similar to Complainant’s MYFREECAMS.COM mark. The disputed domain names contain common misspellings of Complainant’s entire mark by replacing the letter “f” with the letter “d” or by replacing the letter “e” with the letter “c.” The Panel finds that common misspellings do not adequately distinguish the disputed domain names from Complainant’s mark. See Internet Movie Database, Inc. v. Temme, FA 449837 (Nat. Arb. Forum May 24, 2005) (finding that the respondent’s disputed domain names were confusingly similar to the complainant’s mark because the disputed domain names were common misspellings of the mark involving keys that were adjacent to the current keys comprising the complainant’s mark); see also Guinness UDV N. Am., Inc. v. Dallas Internet Servs., D2001-1055 (WIPO Dec. 12, 2001) (finding the <smirnof.com> domain name confusingly similar to the complainant’s SMIRNOFF mark because merely removing the letter “f” from the mark was insignificant). Thus, the Panel concludes that Respondent’s <mydreecams.com> and <myfreccams.com> domain names are confusingly similar to Complainant’s MYFREECAMS.COM mark under Policy ¶ 4(a)(i).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(i).
Complainant contends that Respondent lacks rights and legitimate interests in the disputed domain name. Once Complainant puts forth a prima facie case, the burden shifts to Respondent to demonstrate that it does have rights and legitimate interests in the disputed domain name according to Policy ¶ 4(c). The Panel finds that Complainant has put forth a sufficient prima facie case in these proceedings. As Respondent failed to respond to the allegations made against it, the Panel may assume that Complainant’s allegations are true and that Respondent lacks any rights and legitimate interests in the disputed domain name. See Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“Given Respondent’s failure to submit a substantive answer in a timely fashion, the Panel accepts as true all of the allegations of the complaint.”); see also Parfums Christian Dior v. QTR Corp., D2000-0023 (WIPO Mar. 9, 2000) (finding that by not submitting a response, the respondent has failed to invoke any circumstance which could demonstrate any rights or legitimate interests in the domain name). The Panel, however, elects to consider the evidence in record in light of the Policy ¶ 4(c) factors to determine whether Respondent has any rights and legitimate interests in the disputed domain name.
The WHOIS information provided by Complainant does not provide evidence that Respondent is commonly known by the <mydreecams.com> and <myfreccams.com> domain names. Complainant claims that Respondent is not authorized or licensed to use Complainant’s MYFREECAMS.COM mark. The Panel finds no evidence in the record that would suggest that Respondent is commonly known by the disputed domain names. Therefore, the Panel holds that Respondent is not commonly known by the <mydreecams.com> and <myfreccams.com> domain names pursuant to Policy ¶ 4(c)(ii). See Reese v. Morgan, FA 917029 (Nat. Arb. Forum Apr. 5, 2007) (concluding that the respondent was not commonly known by the <lilpunk.com> domain name as there was no evidence in the record showing that the respondent was commonly known by that domain name, including the WHOIS information as well as the complainant’s assertion that it did not authorize or license the respondent’s use of its mark in a 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).
Complainant alleges that Respondent uses the <mydreecams.com> and <myfreccams.com> domain names in a phishing scheme to gain personal information from Internet users. The website resolving from the disputed domain names asks Internet users for their personal username and password for Complainant’s website. Respondent then is able to use that information to access Complainant’s customer’s person information on Complainant’s website. The Panel finds Respondent’s use of the disputed domain name is not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use of the domain name under Policy ¶ 4(c)(iii). See Juno Online Servs., Inc. v. Nelson, FA 241972 (Nat. Arb. Forum Mar. 29, 2004) (finding that using a domain name in a fraudulent scheme to deceive Internet users into providing their credit card and personal information is not a bona fide offering of goods or services nor a legitimate noncommercial or fair use); see also HOPE worldwide, Ltd. v. Jin, FA 320379 (Nat. Arb. Forum Nov. 11, 2004) (finding that a domain name that “is confusingly similar to Complainant’s mark, redirects Internet users to a website that imitates Complainant’s website, and is used to acquire personal information from Complainant’s potential associates fraudulently” does not fall within the parameters of Policy ¶¶ 4(c)(i) or (iii)).
In addition, Respondent’s use of the <mydreecams.com> and <myfreccams.com>
domain names, common misspellings of Complainant’s MYFREECAMS.COM mark,
constitutes typosquatting. The Panel
finds that Respondent’s use of a disputed domain names, that are common
misspellings of the MYFREECAMS.COM mark, to redirect Internet users seeking
Complainant, is further evidence that Respondent fails to establish rights or
legitimate interests in the disputed domain name pursuant to Policy ¶ 4(a)(ii). See Microsoft Corp. v.
Domain Registration
The Panel finds Policy ¶ 4(a)(ii) has been satisfied.
Respondent is attempting to profit from its use of the <mydreecams.com> and <myfreccams.com> domain
names. The website resolving from the disputed
domain names asks Internet users to enter in their personal username and
password for Complainant’s website.
Respondent is able to use that information to access their personal
information on Complainant’s website.
Respondent presumably is attempting to profit from the access to the
personal information of Internet users.
The Panel finds Respondent’s use of the disputed domain names
constitutes bad faith registration and use under Policy ¶ 4(b)(iv). See
Perot Sys. Corp. v. Perot.net,
FA 95312 (Nat. Arb. Forum Aug. 29, 2000) (finding bad faith
where the domain name in question is obviously connected with the complainant’s
well-known marks, thus creating a likelihood of confusion strictly for
commercial gain); see also Drs. Foster
& Smith, Inc. v. Lalli, FA 95284 (Nat. Arb. Forum Aug. 21, 2000)
(finding bad faith where the respondent directed Internet users seeking the
complainant’s site to its own website for commercial gain).
Respondent uses the <mydreecams.com>
and <myfreccams.com>
domain names in a phishing scheme to access personal information of
Complainant’s customers. The website
resolving from the disputed domain names asks Internet users to enter their
personal usernames and passwords for Complainant’s website. Respondent is able to use that personal
information to access Complainant’s website and further personal information
about the Internet users. The Panel
finds Respondent’s operation of a phishing scheme is further evidence that
Respondent’s use of the disputed domain names is in bad faith under Policy ¶
4(a)(iii). See Wells Fargo & Co. v.
Furthermore, Respondent has engaged in typosquatting through its use of the <mydreecams.com> and <myfreccams.com> domain names, which are common misspellings of Complainant’s MYFREECAMS.COM mark. Therefore, the Panel finds Respondent’s engagement in the practice of typosquatting additionally constitutes bad faith registration and use pursuant to Policy ¶ 4(a)(iii). See Computerized Sec. Sys., Inc. v. Hu, FA 157321 (Nat. Arb. Forum June 23, 2003) (finding that the respondent engaged in typosquatting, which is evidence of bad faith registration and use under Policy ¶ 4(a)(iii)); see also Bank of Am. Corp. v. Tak Ume domains for sale, FA 154528 (Nat. Arb. Forum May 19, 2003) (“Respondent’s registration and use of the disputed domain name demonstrates a practice commonly referred to as ‘typosquatting.’ This practice diverts Internet users who misspell Complainant’s mark to a website apparently owned by Respondent for Respondent’s commercial gain. ‘Typosquatting’ has been recognized as evidencing bad faith registration and use under Policy ¶ 4(b)(iv).”).
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 <mydreecams.com> and <myfreccams.com> domain names be TRANSFERRED from Respondent to Complainant.
Honorable Karl V. Fink (Ret.), Panelist
Dated: March 26, 2010
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