national arbitration forum

 

DECISION

 

AOL Inc. v. Argosweb Corp a/k/a Oleg Techino a/k/a Orel Hlasek

Claim Number: FA1004001320505

 

PARTIES

Complainant is AOL Inc. (“Complainant”), represented by James R. Davis, of Arent Fox LLP, Washington D.C., USA.  Respondent is Argosweb Corp a/k/a Oleg Techino a/k/a Orel Hlasek (“Respondent”), Seychelles.

 

REGISTRAR AND DISPUTED DOMAIN NAMES

The domain names at issue are <engadge5.com>, <wknamp.com>, <engadgst.com>, and <iwnamp.com>, registered with Godaddy.com, Inc.

 

PANEL

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.

 

Sandra J. Franklin as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum electronically on April 21, 2010.

 

On April 23, 2010, Godaddy.com, Inc. confirmed by e-mail to the National Arbitration Forum that the <engadge5.com>, <wknamp.com>, <engadgst.com>, and <iwnamp.com> domain names are registered with Godaddy.com, Inc. and that Respondent is the current registrant of the names.  Godaddy.com, Inc. has verified that Respondent is bound by the Godaddy.com, Inc. 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 April 27, 2010, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 17, 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@engadge5.com, postmaster@wknamp.com, postmaster@engadgst.com, and postmaster@iwnamp.com by e-mail.  Also on April 27, 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 May 25, 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Sandra J. Franklin 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.

 

RELIEF SOUGHT

Complainant requests that the domain names be transferred from Respondent to Complainant.

 

PARTIES' CONTENTIONS

A.  Complainant makes the following assertions:

 

1.      Respondent’s <engadge5.com> and <engadgst.com> domain names are confusingly similar to Complainant’s ENGADGET mark.

 

Respondent’s <wknamp.com> and <iwnamp.com> domain names are confusingly similar to Complainant’s WINAMP mark.

 

2.      Respondent does not have any rights or legitimate interests in the <engadge5.com>, <wknamp.com>, <engadgst.com>, and <iwnamp.com> domain names.

 

3.      Respondent registered and used the <engadge5.com>, <wknamp.com>, <engadgst.com>, and <iwnamp.com> domain names in bad faith.

 

B.  Respondent failed to submit a Response in this proceeding.

 

FINDINGS

Complainant, AOL Inc., offers information and services on the Internet.  Complainant utilizes its ENGADGET and WINAMP marks in order to offer these services.  Complainant holds multiple trademark registrations with the United States Patent and Trademark Office ("USPTO") for its ENGADGET (e.g., Reg. No. 3,232,307 issued April 24, 2007) and its WINAMP marks (e.g., Reg. No. 2,557,585 issued April 9, 2002).

 

Respondent registered the <engadge5.com>, <wknamp.com>, <engadgst.com>, and <iwnamp.com> domain names no earlier than April 29, 2008.  The disputed domain names resolve to commercial websites containing hyperlinks to Complainant and Complainant’s competitors in the Internet information and services business.

 

Respondent has been the respondent in other UDRP proceedings in which disputed domain names were transferred from Respondent to the respective complainants in those cases.  See Barnes & Noble College Bookstores, Inc. v. Oleg Techino, D2006-1537 (WIPO Apr. 20, 2007); see also R.T.G. Furniture Corp. v. Oleg Techino, WIPO D2006-0886 (WIPO Sept. 4, 2006).

 

DISCUSSION

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 WHOIS information identifies the registrant of the domain names either as “Argosweb Corp.” or “Oleg Techino.”  “Oleg Techino” is listed as the administrative contact for all but one of the disputed domain names, according to the WHOIS information.  The WHOIS information for the <wknamp.com> domain name lists “Orel Hlasek” as the administrative contact, but lists “Argosweb Corp.” as the registrant.  Complainant also provides a former UDRP proceeding that held that a respondent, “Oleg Techino,” utilized aliases to avoid UDRP proceedings.  See Barnes & Noble College Bookstores, Inc. v. Oleg Techino, D2006-1537 (WIPO Apr. 20, 2007).  For these reasons, the Panel finds that the disputed domain names are controlled by a single entity.

 

Identical and/or Confusingly Similar

 

The Panel finds Complainant has established rights in its ENGADGET and its WINAMP marks under Policy ¶ 4(a)(i) through Complainant’s trademark registrations with the USPTO.  See Metro. Life Ins. Co. v. Bonds, FA 873143 (Nat. Arb. Forum Feb. 16, 2007) (finding that a trademark registration adequately demonstrates a complainant’s rights in a mark under Policy ¶ 4(a)(i)); see also Microsoft Corp. v. Burkes, FA 652743 (Nat. Arb. Forum Apr. 17, 2006) (“Complainant has established rights in the MICROSOFT mark through registration of the mark with the USPTO.”).

 

Respondent’s <engadge5.com>, and <engadgst.com> domain names are confusingly similar to Complainant’s ENGADGET mark.  The disputed domain names contain common misspellings of Complainant’s mark, by replacing the letter “t” with the number “5” or by replacing the letter “e” with the letter “s.”  Respondent further adds the generic top-level domain (“gTLD”) “.com” to the disputed domain names.  The Panel finds the common misspellings of Complainant’s mark and the addition of the gTLD fail to adequately distinguish the disputed domain names from Complainant’s mark.  See Oxygen Media, LLC v. Primary Source, D2000-0362 (WIPO June 19, 2000) (finding that the domain name <0xygen.com>, with zero in place of letter “O,” “appears calculated to trade on Complainant’s name by exploiting likely mistake by users when entering the url address”); see also Belkin Components v. Gallant, FA 97075 (Nat. Arb. Forum May 29, 2001) (finding the <belken.com> domain name confusingly similar to the complainant's BELKIN mark because the name merely replaced the letter “i” in the complainant's mark with the letter “e”); see also Jerry Damson, Inc. v. Tex. Int’l Prop. Assocs., FA 916991 (Nat. Arb. Forum Apr. 10, 2007) (“The mere addition of a generic top-level domain (“gTLD”) “.com” does not serve to adequately distinguish the Domain Name from the mark.”).  Therefore, the Panel determines that Respondent’s <engadge5.com> and <engadgst.com> domain names are confusingly similar to Complainant’s ENGADGET mark pursuant to Policy ¶ 4(a)(i).

 

Respondent’s <wknamp.com> and <iwnamp.com> domain names are confusingly similar to Complainant’s WINAMP mark.  The disputed domain names feature similar typographical errors that cause the disputed domain names to contain common misspellings of Complainant’s mark, replacing the letter “I” with the letter “k” or transposing the letters “i” and “w.”  The disputed domain names further contain the gTLD “.com.”  The Panel finds the inclusion of common misspellings of Complainant’s mark coupled with the addition of a gTLD fail to adequately distinguish the disputed domain name from Complainant’s mark.  See Intelius, Inc. v. Hyn, FA 703175 (Nat. Arb. Forum July 5, 2006) (finding the <intellus.com> domain name to be confusingly similar to the complainant’s INTELIUS mark because the domain name differed from the mark by one letter and was visually similar); see also Google Inc. v. Jon G., FA 106084 (Nat. Arb. Forum Apr. 26, 2002) (finding <googel.com> to be confusingly similar to the complainant’s GOOGLE mark and noting that “[t]he transposition of two letters does not create a distinct mark capable of overcoming a claim of confusing similarity, as the result reflects a very probable typographical error”); 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).  The Panel finds Respondent’s <wknamp.com> and <iwnamp.com> domain names are confusingly similar to Complainant’s WINAMP mark under Policy ¶ 4(a)(i).

 

The Panel finds Policy ¶ 4(a)(i) is satisfied.

 

Rights or Legitimate Interests

 

Complainant alleges that Respondent lacks rights and legitimate interests in the <engadge5.com>, <wknamp.com>, <engadgst.com>, and <iwnamp.com> domain names.  When a complainant makes a prima facie case in support of its allegations, the burden shifts to the respondent to prove that it does have rights or legitimate interests pursuant to Policy ¶ 4(a)(ii).  The Panel finds Complainant has made a 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.  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).  See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name); see also Vanguard Group, Inc. v. Collazo, FA 349074 (Nat. Arb. Forum Dec. 1, 2004) (finding that because the respondent failed to submit a Response, “Complainant’s submission has gone unopposed and its arguments undisputed.  In the absence of a Response, the Panel accepts as true all reasonable allegations . . . unless clearly contradicted by the evidence.”).

 

The WHOIS information does not indicate that the identification of the registrant of the domain names is similar to any of the disputed domain names.  Respondent fails to offer evidence showing Respondent is commonly known by the <engadge5.com>, <wknamp.com>, <engadgst.com>, and <iwnamp.com> domain names.  There is no other evidence on the record showing Respondent is commonly known by the disputed domain names.  Complainant further asserts that Respondent is not authorized to use its ENGADGET and WINAMP marks.  Therefore the Panel finds that Respondent is not commonly known by the disputed domain names pursuant to Policy ¶ 4(c)(ii).  See 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); see also Educ. Broad. Corp. v. DomainWorks Inc., FA 882172 (Nat. Arb. Forum Apr. 18, 2007) (concluding that the respondent was not commonly known by the <thirteen.com> domain name based on all evidence in the record, and the respondent did not counter this argument in its response).

 

Respondent’s <engadge5.com>, <wknamp.com>, <engadgst.com>, and <iwnamp.com> domain names resolve to websites featuring hyperlinks to Complainant and Complainant’s competitors in the Internet information and services industry.  Complainant alleges Respondent profits from the hyperlinks through the receipt of click-through fees.  The Panel finds Respondent’s use of the confusingly similar disputed domain names is not 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 Persohn v. Lim, FA 874447 (Nat. Arb. Forum Feb. 19, 2007) (finding that the respondent was not using a disputed domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use by redirecting Internet users to a commercial search engine website with links to multiple websites that may be of interest to the complainant’s customers and presumably earning “click-through fees” in the process); see also 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)).

 

In addition, Respondent’s use of the  <engadge5.com>, <wknamp.com>, <engadgst.com>, and <iwnamp.com> domain names, common misspellings of Complainant’s ENGADGET and WINAMP marks, constitutes typosquatting.  The Panel finds that this use of the ENGADGET and WINAMP marks, 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 Philippines, FA 877979 (Nat. Arb. Forum Feb. 20, 2007) (concluding that by registering the <microssoft.com> domain name, the respondent had “engaged in typosquatting, which provides additional evidence that [the] respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii).”); see also IndyMac Bank F.S.B. v. Ebeyer, FA 175292 (Nat. Arb. Forum Sept. 19, 2003) (finding that the respondent lacked rights and legitimate interests in the 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 finds Complainant has satisfied Policy ¶ 4(a)(ii).

 

Registration and Use in Bad Faith

 

Complainant alleges Respondent’s use of the <engadge5.com>, <wknamp.com>, <engadgst.com>, and <iwnamp.com> domain names is a part of a pattern of bad faith use and registration.  Respondent has been the respondent in other UDRP proceedings in which disputed domain names were transferred from Respondent to the respective complainants in those cases.  See Barnes & Noble College Bookstores, Inc. v. Oleg Techino, D2006-1537 (WIPO Apr. 20, 2007); see also R.T.G. Furniture Corp. v. Oleg Techino, WIPO D2006-0886 (WIPO Sept. 4, 2006).  The Panel finds this constitutes a pattern of bad faith registration and use of domain names under Policy ¶ 4(b)(ii).  See Westcoast Contempo Fashions Ltd. v. Manila Indus., Inc., FA 814312 (Nat. Arb. Forum Nov. 29, 2006) (finding bad faith registration and use pursuant to Policy ¶ 4(b)(ii) where the respondent had been subject to numerous UDRP proceedings where panels ordered the transfer of disputed domain names containing the trademarks of the complainants); see also Hachette Filipacchi Presse v. Fortune Int'l Dev., FA 96685 (Nat. Arb. Forum Apr. 6, 2001) (finding that where the respondent has registered over 50 domain names that correspond to different well-known trademarks, evidence of a pattern exists).

 

Respondent’s use of confusingly similar domain names to redirect Internet customers seeking Complainant to Respondent’s website featuring competing hyperlinks constitutes a disruption of Complainant’s business.  See St. Lawrence Univ. v. Nextnet Tech, FA 881234 (Nat. Arb. Forum Feb. 21, 2007) (“This Panel concludes that by redirecting Internet users seeking information on Complainant’s educational institution to competing websites, Respondent has engaged in bad faith registration and use pursuant to Policy ¶ 4(b)(iii).”); see also Am. Airlines, Inc. v. Tex. Int’l Prop. Assoc., FA 914854 (Nat. Arb. Forum Apr. 10, 2007) (holding that where the respondent’s website featured hyperlinks to competing websites and included a link to the complainant’s website, the respondent’s use of the <redeemaamiles.com> domain name constituted disruption under Policy ¶ 4(b)(iii)).  Respondent’s <engadge5.com>, <wknamp.com>, <engadgst.com>, and <iwnamp.com> domain names feature hyperlinks to Complainant and Complainant’s competitors in the Internet information and services industry.  The Panel finds Respondent’s use of the disputed domain name disrupts Complainant’s Internet information and services business and constitutes bad faith registration and use under Policy ¶ 4(b)(iii).

 

Respondent profits from its receipt of click-through fees from its hyperlink to Complainant and the other competing hyperlinks.  Respondent is attempting to profit by creating a likelihood of confusion as to Complainant’s affiliation with the disputed domain name and resolving website.  Therefore, the Panel finds Respondent’s use of the disputed domain names constitutes bad faith registration and use under Policy ¶ 4(b)(iv).  See Bank of Am. Fork v. Shen, FA 699645 (Nat. Arb. Forum June 11, 2006) (holding that the respondent’s previous use of the <bankofamericanfork.com> domain name to maintain a web directory was evidence of bad faith because the respondent presumably commercially benefited by receiving click-through fees for diverting Internet users to unrelated third-party websites); see also Zee TV USA, Inc. v. Siddiqi, FA 721969 (Nat. Arb. Forum July 18, 2006) (finding that the respondent engaged in bad faith registration and use by using a domain name that was confusingly similar to the complainant’s mark to offer links to third-party websites that offered services similar to those offered by the complainant).

 

Furthermore, Respondent has engaged in typosquatting through its use of the <engadge5.com>, <wknamp.com>, <engadgst.com>, and <iwnamp.com> domain names, which are common misspellings of Complainant’s ENGADGET and WINAMP marks.  Therefore, the Panel finds Respondent’s engagement in the practice of typosquatting also 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.

 

DECISION

Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.

 

Accordingly, it is Ordered that the <engadge5.com>, <wknamp.com>, <engadgst.com>, and <iwnamp.com> domain names be TRANSFERRED from Respondent to Complainant.

 

 

 

 

Sandra J. Franklin, Panelist

Dated:  June 3, 2010

 

 

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