AccountNow, Inc. v. Gusto Promotions Sales c/o Promotions Sales, Gustom
Claim Number: FA1002001307544
Complainant is AccountNow, Inc. (“Complainant”), represented by Brody
Stout, of CitizenHawk, Inc.,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <accountsnow.net>, registered with Directnic, Ltd.
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.
John J. Upchurch 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 11, 2010, Directnic, Ltd confirmed by e-mail to the National Arbitration Forum that the <accountsnow.net> domain name is registered with Directnic, Ltd and that Respondent is the current registrant of the name. 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 February 11, 2010, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of March 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@accountsnow.net by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On March 9, 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed John J. Upchurch 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 name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <accountsnow.net> domain name is confusingly similar to Complainant’s ACCOUNTNOW mark.
2. Respondent does not have any rights or legitimate interests in the <accountsnow.net> domain name.
3. Respondent registered and used the <accountsnow.net> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, AccountNow, Inc.,
is a provider of financial solutions for consumers who do not have established
credit or traditional banking relationships.
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, Gusto Promotions Sales c/o Promotions Sales, Gustom, registered the <accountsnow.net> domain name on October 27, 2005. The disputed domain name resolves 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.
The Panel finds that Complainant has established rights in
the ACCOUNTNOW mark under Policy ¶ 4(a)(i) as of October 6, 2004 through its registration of the mark with the USPTO (e.g., Reg. No. 3,175,043 issued November
21, 2006, filed October 6, 2004). See Miller Brewing
Respondent’s <accountsnow.net> domain name
contains Complainant’s entire ACCOUNTNOW mark, adds the letter “s,” and the
generic top-level domain (“gTLD”) “.net.”
The Panel finds that these additions to the Complainant’s mark do not
sufficiently distinguish the disputed domain name from Complainant’s mark. Therefore, the Panel finds that the <accountsnow.net> domain name is
confusingly similar to Complainant’s ACCOUNTNOW mark under Policy ¶
4(a)(i). See Oki Data Ams., Inc. v. ASD, Inc., D2001-0903 (WIPO Nov. 6,
2001) (“[T]he fact that a domain name wholly incorporates a Complainant’s
registered mark is sufficient to establish identity [sic] or confusing
similarity for purposes of the Policy despite the addition of other words to
such 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 that Policy ¶
4(a)(i) has been satisfied.
Pursuant to Policy ¶ 4(a)(ii), Complainant must make a prima facie showing that Respondent lacks rights and legitimate interests in the disputed domain name. Upon making such a showing, the burden then shifts to Respondent and Respondent must establish that it has rights or legitimate interests in the disputed domain name. The Panel finds that Complainant has sufficiently made its prima facie showing 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 name, the Panel elects to examine the record under Policy ¶ 4(c).
The WHOIS information for the <accountsnow.net>
domain name lists “Gusto Promotions Sales c/o
Promotions Sales, Gustom,” which does not indicate that Respondent is commonly
known by the disputed domain name.
Respondent has not provided any evidence to sugges that Policy ¶
4(c)(ii) applies in the case. Therefore,
the Panel finds that Respondent is not commonly known by the disputed domain
name 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 <accountsnow.net> domain name resolves to a website that displays hyperlinks to third-party websites, some of which directly compete with Complainant. The Panel presumes that Respondent receives click-through fees for these hyperlinks. Therefore, the Panel finds that Respondent’s use of the <accountsnow.net> domain name 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)).
Finally, the Panel
finds that Respondent is engaged in typosquatting because Respondent is taking
advantage of a common misspelling of Complainant’s ACCOUNTNOW mark. Therefore, the Panel finds that Respondent’s
engagement in typosquatting is further evidence that Respondent lacks rights
and legitimate interests in the <accountsnow.net>
domain name under Policy ¶
4(a)(ii). See Microsoft Corp. v. Domain Registration
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Since Respondent registered the <accountsnow.net> domain
name on October 27, 2005, the disputed domain name has resolved to a
website that displays hyperlinks to third-party websites, some of which
directly compete with Complainant. The
Panel finds that Respondent’s use of the disputed domain name disrupts
Complainant’s business. The Panel
further finds that 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 that that Respondent’s use of the
confusingly similar <accountsnow.net>
domain name creates a likelihood of
confusion as to Complainant’s affiliation with the disputed domain name. The Panel further finds that Respondent is
commercially gaining from this likelihood of confusion through its presumed
receipt of click-through fees, which constitutes bad faith registration and use
under Policy ¶ 4(b)(iv). See
The Panel finds that Respondent’s aforementioned engagement in typosquatting is further evidence of 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 <accountsnow.net> domain name be TRANSFERRED from Respondent to Complainant.
John J. Upchurch, Panelist
Dated: March 23, 2010
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