Lavalife Corp. v. Wang Shaopeng
Claim Number: FA1003001314984
Complainant is Lavalife
Corp. (“Complainant”), represented by CitizenHawk,
Inc.,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <lovalife.com>, registered with Fabulous.com Pty Ltd.
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.
Terry F. Peppard as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on March 23, 2010.
On March 24, 2010, Fabulous.com Pty Ltd. confirmed by e-mail to the National Arbitration Forum that the <lovalife.com> domain name is registered with Fabulous.com Pty Ltd. and that Respondent is the current registrant of the name. Fabulous.com Pty Ltd. has verified that Respondent is bound by the Fabulous.com Pty 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 March 25, 2010, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 14, 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@lovalife.com. Also on March 25, 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 April 19, 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Terry F. Peppard as sole Panelist in this proceeding.
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 "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 name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
Complainant is a leading provider of online dating services.
Complainant owns multiple trademark registrations with the United States Patent and Trademark Office (“USPTO”) for the LAVALIFE mark (including Reg. No. 2,646,908, filed February 1, 2001, and issued November 5, 2002).
Respondent is not sponsored by or affiliated with Complainant in any way, and Complainant has not given Respondent permission to use Complainant's mark in a domain name.
Respondent registered the <lovalife.com> domain name on October 19, 2001.
Respondent’s domain name resolves to a website displaying third-party links to websites operating in competition with the business of Complainant.
Respondent’s <lovalife.com> domain name is confusingly similar to Complainant’s LAVALIFE mark.
Respondent is not commonly known by the disputed domain name.
Respondent does not have any rights to or legitimate interests in the <lovalife.com> domain name.
Respondent registered and uses the <lovalife.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
(1) the domain name registered by Respondent is confusingly similar to a trademark in which Complainant has rights; and
(2) Respondent has no rights to or legitimate interests in respect of the domain name; and
(3) the same domain name was registered and is being used by Respondent in bad faith.
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 a 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:
i. the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
ii. Respondent has no rights or legitimate interests in respect of the domain name; and
iii. the domain name has been registered and is being used in bad faith.
Complainant has established rights in the LAVALIFE mark
pursuant to Policy ¶ 4(a)(i) through registrations of
the mark with the USPTO. See Miller
Brewing
Respondent’s <lovalife.com> domain name contains a version of Complainant’s mark by misspelled one letter, and with the addition of the generic top-level domain (“gTLD”) “.com.” These differences are insufficient to distinguish the domain name from the mark for purposes of the Policy. See Victoria’s Secret v. Zuccarini, FA 95762 (Nat. Arb. Forum Nov. 18, 2000) (finding that, by misspelling words and adding letters to words in forming a contested domain name, a respondent does not create a distinct mark, but rather renders the resulting domain name confusingly similar to a complainant’s mark). Similarly, the addition of a gTLD is irrelevant in distinguishing a disputed domain name from an established mark. See 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); see also Reese v. Morgan, FA 917029 (Nat. Arb. Forum Apr. 5, 2007) (finding that the addition of the generic top-level domain “.com” to a complainant’s mark in forming a domain name is insufficient to differentiate the domain name from the mark).
Therefore, the Panel finds that Respondent’s domain name is confusingly similar to Complainant’s mark pursuant to Policy ¶ 4(a)(i).
Complainant alleges that Respondent lacks rights to and legitimate interests in the disputed domain name. Once Complainant makes out a prima facie case in support of its allegations under this head of the Policy, the burden shifts to Respondent to prove that it does have rights to or legitimate interests in the disputed domain name. See Intel Corp. v. Macare, FA 660685 (Nat. Arb. Forum Apr. 26, 2006) (finding that:
[C]omplainant
must first make a prima facie case
that respondent lacks rights and legitimate interests in the disputed domain
names under Policy ¶ 4(a)(ii), and then the burden
shifts to respondent to show it does have rights or legitimate interests.
See also Clerical Med. Inv. Group Ltd. v. Clericalmedical.com, D2000-1228 (WIPO Nov. 28, 2000) (finding that, under appropriate circumstances, the assertion by a complainant that a respondent has no right to or legitimate interest in a contested domain name is sufficient to shift the burden of proof to that respondent to demonstrate that such a right or legitimate interest exists).
Complainant has
established a prima facie case sufficient
to satisfy the requirements of the Policy, while Respondent has failed to
submit a Response in this proceeding. We are therefore free to conclude that
Respondent has no rights to or legitimate interests in the contested domain
name. See Am. Express Co. v. Fang Suhendro, FA 129120 (Nat. Arb. Forum Dec. 30, 2002):
[B]ased on Respondent's failure to respond, it is presumed
that Respondent lacks all rights and legitimate interests in the disputed
domain name.
See also Am. Online, Inc. v. AOL Int'l, D2000-0654 (WIPO Aug. 21, 2000) (finding no rights or legitimate interests in a contested domain name where a respondent fails to respond to a complaint filed under the Policy).
Nonetheless, we will examine the record before us, by reference to the criteria set out in Policy ¶ 4(c), to determine whether there is in it any basis for concluding that Respondent has rights to or legitimate interests in the disputed domain name which are cognizable under the Policy.
We begin by noting that Complainant contends, and Respondent does not deny, that Respondent is not commonly known by the disputed domain name, that Respondent is not sponsored by or affiliated with Complainant in any way, and that Complainant has not given Respondent permission to use Complainant's mark in a domain name.
Moreover, the relevant WHOIS information identifies the registrant of the disputed domain name only as “Wang Shaopeng.” On this record, we are constrained to conclude that Respondent is not commonly known by the disputed domain name so as to have demonstrated rights to or legitimate interests in the contested domain name under Policy ¶ 4(c)(ii). See Braun Corp. v. Loney, FA 699652 (Nat. Arb. Forum July 7, 2006) (concluding that a respondent was not commonly known by disputed domain names where the relevant WHOIS information, as well as all other information in the record, gave no indication that that respondent was commonly known by the disputed domain names, and where a complainant had not authorized that respondent to register a domain name containing its mark); see also St. Lawrence Univ. v. Nextnet Tech, FA 881234 (Nat. Arb. Forum Feb. 21, 2007) (concluding that a respondent had no rights to or legitimate interests in a disputed domain name where there was no evidence in the record indicating that that respondent was commonly known by the domain name).
We also observe that there is no dispute as to Complainant’s
assertion that Respondent’s domain name resolves to a website featuring
click-through links and advertisements for Complainant’s competitors in the
online dating service industry.
Respondent’s use of the disputed
domain name to redirect Internet users to Complainant’s business competitors,
presumably for financial gain, 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
contested domain name pursuant to Policy ¶ 4(c)(iii). See Expedia,
Inc. v. Compaid, FA
520654 (Nat. Arb. Forum Aug. 30, 2005) (finding that a respondent’s use
of the <expediate.com> domain name to redirect Internet users to a
website featuring links to travel services that competed with the business of a
complainant was 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 pursuant to Policy ¶ 4(c)(iii)); see also Metro. Life Ins. Co. v. Bonds, FA
873143 (Nat. Arb.
Forum Feb. 16, 2007) (concluding that using a domain name confusingly similar to
the mark of a complainant to divert Internet users to competing commercial websites
does not represent a bona fide offering of goods or services under
Policy ¶ 4(c)(i) or a legitimate non-commercial or fair use of the domain under
Policy ¶ 4(c)(iii)).
Finally under this head of the Policy, typo-squatting occurs when a respondent includes one or more common typographical errors in the mark portion of a disputed domain name in order to divert to its resolving website Internet users who commit those typographical errors. The disputed domain name evidences such typo-squatting, which is further evidence that Respondent does not have rights to or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(a)(ii). See LTD Commodities LLC v. Party Night, Inc., FA 165155 (Nat. Arb. Forum Aug. 14, 2003) (finding that the domain names <ltdcommadities.com>, <ltdcommmodities.com>, and <ltdcommodaties.com> were intentional misspellings of a complainant's LTD COMMODITIES mark, and that this:
‘typosquatting’ is evidence that Respondent lacks rights or legitimate interests in
the disputed domain names.
See also IndyMac Bank F.S.B. v. Ebeyer, FA 175292 (Nat. Arb. Forum Sept. 19, 2003) (finding that a respondent lacked rights to and legitimate interests in disputed domain names because it “engaged in the practice of typosquatting by taking advantage of Internet users who attempt to access Complainant's <indymac.com> website but mistakenly misspell Complainant's mark by typing the letter ‘x’ instead of the letter ‘c’”).
The Panel therefore finds that Policy ¶ 4(a)(ii) has been satisfied.
Respondent has disrupted Complainant’s business and taken
advantage of Complainant’s goodwill surrounding its mark by displaying
third-party links to Complainant’s competitors in the online dating service
industry. Respondent has therefore engaged
in bad faith registration and use of the contested domain name pursuant to
Policy ¶ 4(b)(iii).
See Travant Solutions, Inc. v. Cole, FA 203177 (Nat. Arb. Forum Dec. 6, 2003):
Respondent registered and used the domain name in bad
faith, pursuant to Policy ¶ 4(b)(iii), because it is
operating on behalf of a competitor of Complainant . . .
See also David Hall Rare Coins
v.
In addition, in the circumstances here presented, we may presume that Respondent is collecting
click-through fees, and thus profiting, by creating a likelihood of confusion
between Complainant’s LAVALIFE mark and the confusingly similar disputed domain
name. This use of the disputed domain
name is evidence of its bad faith registration and use pursuant to Policy ¶ 4(b)(iv). See Zee TV USA, Inc.
v. Siddiqi, FA 721969
(Nat. Arb. Forum July 18, 2006) (finding that a respondent
engaged in bad faith registration and use of a domain name that was confusingly
similar to a complainant’s mark by using it to offer links to third-party
websites that featuring services similar to those offered by a complainant); see also Univ.
of Houston Sys. v. Salvia Corp., FA
637920 (Nat. Arb. Forum Mar. 21, 2006):
Respondent is using the disputed domain name
to operate a website which features links to competing and non-competing
commercial websites from which Respondent presumably receives referral
fees. Such use for Respondent’s own
commercial gain is evidence of bad faith registration and use pursuant to
Policy ¶ 4(b)(iv).
Complainant also alleges, without objection from Respondent,
that Respondent is guilty of typo-squatting, which is itself evidence of bad
faith registration and use of the disputed domain name under Policy ¶ 4(a)(iii). We
agree. See Microsoft
Corp. v. Domain Registration
Typosquatting
… is the intentional misspelling of words with [the] intent to intercept and
siphon off traffic from its intended destination, by preying on Internauts who
make common typing errors. Typosquatting is inherently parasitic and of itself
evidence of bad faith.
For all of these reasons, the Panel finds that Policy ¶ 4(a)(iii) has been satisfied.
Complainant having established all three elements required to be proven under the ICANN Policy, the Panel concludes that the relief requested must be GRANTED.
Accordingly, it is Ordered that the <lovalife.com> domain name be TRANSFERRED forthwith from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: April 30, 2010
Click Here to return to the main Domain Decisions Page
Click Here to return to our Home Page
National Arbitration Forum