AccountNow, Inc. v. Texas International Property Associates - NA NA
Claim Number: FA1002001307538
Complainant is AccountNow, Inc. (“Complainant”), represented by CitizenHawk, Inc., California, USA. Respondent is Texas International Property Associates - NA NA (“Respondent”), Texas, USA.
REGISTRAR AND DISPUTED DOMAIN
NAMES
The domain names at issue are <accountnoe.net> and <accoutnow.com>, registered with Compana, 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.
The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on February 10, 2010; the National Arbitration Forum received a hard copy of the Complaint on February 11, 2010.
On February 12, 2010, Compana, LLC confirmed by e-mail to the National Arbitration Forum that the <accountnoe.net> and <accoutnow.com> domain names are registered with Compana, LLC and that Respondent is the current registrant of the names. Compana, LLC has verified that Respondent is bound by the Compana, 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 February 12, 2010, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of March 4, 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@accountnoe.net and postmaster@accoutnow.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On March 10, 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed the Honorable Charles K. McCotter, Jr. (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 <accountnoe.net> and <accoutnow.com> domain names are confusingly similar to Complainant’s ACCOUNTNOW mark.
2. Respondent does not have any rights or legitimate interests in the <accountnoe.net> and <accoutnow.com> domain names.
3. Respondent registered and used the <accountnoe.net> and <accoutnow.com> domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, AccountNow,
Inc., is a provider of financial solutions for consumers. Complainant holds several registrations of
the ACCOUNTNOW mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 3,175,043 issued November
21, 2006, filed October 6, 2004).
Respondent registered the <accountnoe.net> and <accoutnow.com> domain names no earlier than November 15, 2005. The disputed domain names each resolve to a website that displays hyperlinks to third-party websites, some of which directly compete 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 has provided evidence of the registration of its
mark and contends its rights in the mark date back to the filing date of the
subsequent registration. The Panel finds
Complainant has established rights in the ACCOUNTNOW mark under Policy ¶
4(a)(i) as of the October 6, 2004 filing date,
through its subsequent registration of the mark with the USPTO (e.g., Reg. No. 3,175,043 issued November
21, 2006). See Miller Brewing
Respondent’s <accountnoe.net> and <accoutnow.com> domain
names contain Complainant’s entire ACCOUNTNOW mark and the generic top-level
domain (“gTLD”) “.net,” or “.com.” The <accountnoe.net>
domain name mispells Complainant’s
ACCOUNTNOW mark by substituting the “w” for an “e,” and the <accoutnow.com>
domain name misspells Complainant’s mark by deleting a letter “n.” The Panel finds these alterations to the
Complainant’s mark do not sufficiently distinguish the disputed domain names
from Complainant’s mark. Therefore, the
Panel finds the <accountnoe.net> and <accoutnow.com>
domain names are confusingly similar to Complainant’s ACCOUNTNOW 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 Google, Inc. v. DktBot.org, FA 286993 (Nat. Arb. Forum Aug.
4, 2004) (“The mere addition of a
single letter to the complainant’s mark does not remove the respondent’s domain
names from the realm of confusing similarity in relation to the complainant’s
mark pursuant to Policy ¶ 4(a)(i).”); see
also 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).
The Panel finds Policy ¶
4(a)(i) has been satisfied.
In accordance with Policy ¶ 4(a)(ii), Complainant must make a prima facie showing that Respondent lacks rights and legitimate interests in the disputed domain names. Once Complainant has produced a sufficient prima facie case, the burden then shifts to Respondent and Respondent must establish that it has rights or legitimate interests in the disputed domain names. The Panel finds that Complainant has sufficiently made its prima facie case under Policy ¶ 4(a)(ii). The burden now shifts to Respondent, from whom no response was received. 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 G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum Oct. 1, 2002) (“Because Complainant’s Submission constitutes a prima facie case under the Policy, the burden effectively shifts to Respondent. Respondent’s failure to respond means that Respondent has not presented any circumstances that would promote its rights or legitimate interests in the subject domain name under Policy ¶ 4(a)(ii).”). Although Respondent has made no allegations that it has rights or legitimate interests in the disputed domain names, the Panel elects to examine the record under Policy ¶ 4(c).
The WHOIS information for the disputed domain names list
the registrant as “Texas International Property
Associates - NA NA,” which does not indicate that Respondent is commonly known
by the disputed domain names. Respondent
has not provided any evidence to suggest that Policy ¶ 4(c)(ii) applies in the
case. Therefore, the Panel finds
that Respondent is not commonly known by the disputed domain names under Policy
¶ 4(c)(ii). See Braun Corp. v. Loney, FA 699652 (Nat. Arb.
Forum July 7, 2006) (concluding that the respondent was not commonly known by
the disputed domain names where the WHOIS information, as well as all other
information in the record, gave no indication that the respondent was commonly
known by the disputed domain names, and the complainant had not authorized the
respondent to register a domain name containing its registered mark); see also M. Shanken Commc’ns v. WORLDTRAVELERSONLINE.COM, FA 740335 (Nat. Arb. Forum Aug. 3,
2006) (finding that the respondent was not commonly known by the
<cigaraficionada.com> domain name under Policy ¶ 4(c)(ii)
based on the WHOIS information and other evidence in the record).
Respondent’s disputed domain names each resolve to a website that displays hyperlinks to third-party websites, some of which directly compete with Complainant in the financial services industry. The Panel finds Respondent’s use of the <accountnoe.net> and <accoutnow.com> domain names is not 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). See Disney Enters., Inc. v. Kamble, FA 918556 (Nat. Arb. Forum Mar. 27, 2007) (holding that the operation of a pay-per-click website at a confusingly similar domain name was not 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)); see also 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)).
Furthermore,
Complainant contends Respondent is engaged in typosquatting because Respondent
is taking advantage of common misspellings of Complainant’s ACCOUNTNOW mark in
the disputed domain names. Therefore,
the Panel finds Respondent’s engagement in typosquatting is further evidence
that Respondent lacks rights and legitimate interests in the <accountnoe.net> and <accoutnow.com>
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 each resolve to a website
displaying hyperlinks to third-party websites, some of which directly compete
with Complainant. The Panel finds
Respondent’s use of the disputed domain names disrupts Complainant’s business
and the Panel further finds such a disruption constitutes bad faith
registration and use under Policy ¶ 4(b)(iii). See Tesco Pers. Fin. Ltd. v.
Domain Mgmt. Servs., FA
877982
(Nat. Arb. Forum Feb.
13, 2007) (concluding that the use of a confusingly similar domain name to
attract Internet users to a directory website containing commercial links to
the websites of a complainant’s competitors represents bad faith registration
and use under Policy ¶ 4(b)(iii)); see
also Am. Airlines, Inc. v.
The Panel finds Respondent’s use of the confusingly similar <accountnoe.net> and <accoutnow.com>
domain names create a likelihood of
confusion as to Complainant’s affiliation with the disputed domain names. The Panel further finds Respondent is
presumably gaining commercially from this likelihood of confusion by receiving
click-through fees, which the Panel finds constitutes bad faith registration
and use under Policy ¶ 4(b)(iv). See
As previously concluded, the Panel finds Respondent has engaged in the practice of typosquatting through its registration of the disputed domain names. The Panel finds typosquatting is further evidence of Respondent’s bad faith registration and use under 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 The Vanguard Group, Inc. v. IQ Mgmt. Corp., FA 328127 (Nat. Arb. Forum Oct. 28, 2004) (“By engaging in typosquatting, [r]espondent has registered and used the <vangard.com> domain name in 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 <accountnoe.net> and <accoutnow.com> domain names be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: March 19, 2010
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