Avid Dating Life, Inc. v. Purple Bucquet c/o Purple
Claim Number: FA1004001318425
Complainant is Avid Dating Life, Inc. (“Complainant”), represented by CitizenHawk,
Inc.,
REGISTRAR AND DISPUTED DOMAIN
NAMES
The domain names at issue are <aschleymadison.com> and <ashkeymadison.com>, registered with Power Brand Center.
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.
Louis E. Condon as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on April 8, 2010.
On May
11, 2010,
On May 18, 2010, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 7, 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@ aschleymadison.com and postmaster@ashkeymadison.com. Also on May 18, 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 June 11, 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Louis E. Condon 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 "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 <aschleymadison.com> and <ashkeymadison.com> domain names are confusingly similar to Complainant’s ASHLEY MADISON mark.
2. Respondent does not have any rights or legitimate interests in the <aschleymadison.com> and <ashkeymadison.com> domain names.
3. Respondent registered and used the <aschleymadison.com> and <ashkeymadison.com> domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Avid Dating Life, Inc., has registered its ASHLEY MADISON mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 2,812,950 issued February 10, 2004). Complainant uses the mark in connection with online dating services.
Respondent registered the disputed domain names on December 8, 2004. Respondent’s disputed domain names resolve to websites displaying third-party links to websites offering online dating services in competition with Complainant.
Complainant offers evidence that Respondent has a history of registering domain names infringing upon the trademark rights of others and has been ordered by previous UDRP panels to transfer the disputed domain names to the respective complainants. See Morningstar, Inc. v. Purple Bucquet c/o Purple, FA 1310402 (Nat. Arb. Forum Apr. 12, 2010); see also Charlotte Russe Merch., Inc. v. Purple Bucquet c/o Purple, FA 1319965 (Nat. Arb. Forum June 3, 2010).
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 obtained a trademark registration for the
ASHLEY MADISON mark with the USPTO (Reg. No. 2,812,950 issued February 10, 2004). The Panel finds that Complainant has
established rights in the ASHLEY MADISON mark for purposes of Policy ¶ 4(a)(i) through its trademark registration with the USPTO. See Lockheed
Martin Corp. v. Hoffman, FA 874152
(Nat. Arb.
Forum Jan. 31, 2007) (finding that the complainant had sufficiently established
rights in the SKUNK WORKS mark through its 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).
Complainant argues that Respondent’s disputed domain names are confusingly similar to Complainant’s ASHLEY MADISON mark pursuant to Policy ¶ 4(a)(i). Respondent’s disputed domain names contain a misspelled version of Complainant’s mark and add the generic top-level domain (“gTLD”) “.com.” The Panel finds that a disputed domain name that contains a misspelled version of a complainant’s mark fails to bring about a distinguishing characteristic and instead creates a confusing similarity between the disputed domain name and the complainant’s mark. See Reuters Ltd. v. Global Net 2000, Inc., D2000-0441 (WIPO July 13, 2000) (finding that a domain name which differs by only one letter from a trademark has a greater tendency to be confusingly similar to the trademark where the trademark is highly distinctive); see also 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). In addition, the Panel finds that 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 mere addition of the generic top-level domain “.com” is insufficient to differentiate a disputed domain name from a mark). Therefore, the Panel finds that Respondent’s disputed domain names are confusingly similar to Complainant’s mark pursuant to Policy ¶ 4(a)(i).
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant has alleged that Respondent does not have rights and legitimate interests in the disputed domain names. Once Complainant makes a prima facie case in support of its allegations, the burden shifts to Respondent to prove that it does have rights or legitimate interests pursuant to Policy ¶ 4(a)(ii). See AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006) (finding that if the complainant satisfies its prima facie burden, “then the burden shifts to the respondent to show that it does have rights or legitimate interest in the subject domain names.”). The Panel finds Complainant has made a sufficient prima facie case. Due to Respondent’s failure to respond to the Complaint, the Panel may assume that Respondent does not have rights or legitimate interests in the disputed domain names. See Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“[Rule 14(b)] expressly provide[s] that the Panel ‘shall draw such inferences’ from the Respondent’s failure to comply with the rules ‘as it considers appropriate.”). However, the Panel will examine the record to determine whether Respondent has rights or legitimate interests in the disputed domain names under Policy ¶ 4(c).
Respondent has
offered no evidence, and there is no evidence in the record, suggesting that
Respondent is commonly known by the disputed domain names.
Complainant asserts that Respondent is not authorized to use the ASHLEY
MADISON mark. The WHOIS information
identifies the registrant of the disputed domain names as “Purple
Bucquet c/o Purple.” Therefore, the Panel finds that Respondent
has not established rights or legitimate interests in the disputed
domain names pursuant to Policy ¶ 4(c)(ii). 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 names resolve to websites featuring advertisements and links relating to
Complainant’s competitors in the online dating service industry. The
Panel may infer that Respondent profits through the generation of click-through
fees from the links to Complainant’s competitors. Therefore, the Panel
finds that Respondent’s use of the disputed domain names is not in connection
with a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use of the
disputed domain names under Policy ¶ 4(c)(iii). See 24 Hour Fitness
USA, Inc. v. 24HourNames.com-Quality Domains For
In addition, Respondent’s disputed domain names qualify as typosquatting,
given the misspelling of the ASHLEY MADISON mark. As such, Respondent’s attempt to capitalize
on the typographical errors of Internet users constitutes evidence that
Respondent lacks rights and legitimate interests in the disputed domain names
under Policy ¶ 4(a)(ii). See LTD
Commodities LLC v. Party Night, Inc., FA
165155 (Nat. Arb. Forum Aug. 14,
2003) (finding that the <ltdcommadities.com>,
<ltdcommmodities.com>, and <ltdcommodaties.com> domain
names were intentional misspellings of Complainant's LTD COMMODITIES mark
and this “‘typosquatting’ is evidence that Respondent lacks rights or
legitimate interests in the disputed domain names”); see also Microsoft Corp. v.
Domain Registration
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Respondent has been the respondent in other UDRP
proceedings, wherein the disputed domain names were ordered to be transferred
from Respondent to the respective complainants in those cases. See Morningstar, Inc. v. Purple Bucquet c/o Purple, FA 1310402
(Nat. Arb. Forum Apr. 12, 2010); see
also Charlotte Russe Merch., Inc. v. Purple Bucquet c/o Purple, FA 1319965
(Nat. Arb. Forum June 3, 2010). The
Panel finds that Respondent has therefore engaged in a pattern of bad faith
registration and use under the parameters of Policy ¶ 4(b)(ii). See Arai
Helmet Am., Inc. v. Goldmark, D2004-1028 (WIPO Jan. 22, 2005 (finding that “Respondent has registered the
disputed domain name, <aria.com>, to prevent Complainant from registering
it” and taking notice of another Policy proceeding against the respondent to
find that “this is part of a pattern of such registrations”); see also Westcoast Contempo Fashions Ltd. v.
The Panel finds that Respondent intended to disrupt
Complainant’s business and take advantage of Complainant’s goodwill surrounding
its mark by displaying third-party links to Complainant’s competitors in the
online dating service industry. The
Panel therefore finds that Respondent engaged in bad faith registration and use
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
Respondent has created a likelihood of confusion for
commercial gain as to Complainant’s source and affiliation with the disputed domain name
and the resolving website. Respondent is
presumably monetarily benefiting through the receipt of referral fees accrued
when Internet users click on the competitive links. This constitutes evidence that Respondent has
registered and used the disputed domain names in bad faith under Policy ¶ 4(b)(iv). See Asbury Auto. Group,
Inc. v.
Complainant alleges that typosquatting is itself evidence of
bad faith registration and use under Policy ¶ 4(a)(iii). The Panel agrees and finds that Respondent’s disputed domain names
are merely typosquatted versions of Complainant’s ASHLEY MADISON mark, and that
such typosquatting constitutes bad faith registration and use under Policy ¶
4(a)(iii). See Microsoft Corp. v.
Domain Registration
The Panel finds that Policy ¶ 4(a)(iii) has been satisfied.
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief should be GRANTED.
Accordingly, it is Ordered that the <aschleymadison.com> and <ashkeymadison.com> domain names be TRANSFERRED from Respondent to Complainant.
Louis E. Condon, Panelist
Dated: June 18, 2010
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