TrafficMarketplace, Inc. v. satisnetworks
Claim Number: FA1005001324502
Complainant is TrafficMarketplace,
Inc. (“Complainant”), represented by Brett
E. Lewis,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <trafficmarketplace.info>, registered with GoDaddy.com, Inc.
The undersigned certifies that she has acted independently and impartially and that to the best of her knowledge she has no known conflict in serving as Panelist in this proceeding. Hon. Carolyn Marks Johnson sits as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically May 13, 2010.
On May 17, 2010, GoDaddy.com, Inc. confirmed by e-mail to the National Arbitration Forum that the <trafficmarketplace.info> domain name is registered with GoDaddy.com, Inc. and that Respondent is the current registrant of the name. GoDaddy.com, Inc. verified that Respondent is bound by the GoDaddy.com, Inc. registration agreement and thereby has agreed to resolve domain-name disputes brought by third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy").
On May 21, 2010, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 10, 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@trafficmarketplace.info by e-mail. Also on May 21, 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 14, 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Hon. Carolyn Marks Johnson to sit as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration Forum 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:
1. The domain name that Respondent registered,<trafficmarketplace.info>, is identical to Complainant’s TRAFFICMARKETPLACE mark.
2. Respondent has no rights to or legitimate interests in the <trafficmarketplace.info> domain name.
3. Respondent registered and used the <trafficmarketplace.info> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, TrafficMarketplace, Inc., is an online provider of advertising and marketing services that has been operating under the TRAFFICMARKETPLACE mark since April 2000. Complainant owns a trademark registration with the United States Patent and Trademark Office ("USPTO") for its TRAFFICMARKETPLACE mark (Reg. No. 3,067,753 issued March 14, 2006).
Respondent, satisnetworks, registered the <trafficmarketplace.info> domain name October 10, 2009. Respondent’s disputed domain name resolves to a website that competes with Complainant in the advertising and marketing service market.
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."
Given 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 will draw such inferences as the Panel 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 Complainant to 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 established rights in its TRAFFICMARKETPLACE mark under Policy ¶ 4(a)(i) through its trademark registration with the USPTO (Reg. No. 3,067,753 issued March 14, 2006). The Panel further finds that Policy ¶ 4(a)(i) does not require Complainant’s trademark registration to be within the Respondent’s country of residence. See 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.”); 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 contends that Respondent’s <trafficmarketplace.info> domain name is identical to Complainant’s TRAFFICMARKETPLACE mark. Complainant argues that simply adding the generic top-level domain (“gTLD”) “.info” is not sufficient to distinguish the disputed domain name from Complainant’s mark. The Panel agrees and finds that Respondent’s disputed domain name is identical to Complainant’s mark under Policy ¶ 4(a)(i). See PepsiCo, Inc. v. Shah, FA 103934 (Nat. Arb. Forum Mar. 4, 2002) (finding the <pepsico.info> domain name identical to the complainant’s PEPSICO mark); see also Microsoft Corp. v. Zournas, FA 1093928 (Nat. Arb. Forum Dec. 10, 2007) (“the Panel finds that Respondent’s <windows.info> domain name is identical to Complainant’s WINDOWS mark as the addition of a gTLD is a necessary addition in the creation of any domain name and therefore an indistinguishing characteristic under Policy ¶ 4(a)(i).“).
The Panel finds that the disputed domain name is identical to Complainant’s protected mark; Complainant satisfied the elements of ICANN Policy ¶ 4(a)(i).
Complainant alleges that Respondent does not have rights or
legitimate interests in the <trafficmarketplace.info> domain name. Complainant is required to make a prima facie case to support these
allegations. Once Complainant makes a prima facie case, the burden of proof
shifts to Respondent to show that it does have rights or legitimate interests
in the <trafficmarketplace.info> domain name. See
Domtar, Inc. v. Theriault., FA 1089426 (Nat. Arb. Forum Jan. 4, 2008)
(“It is well established that, once a complainant has made out a prima facie case in support of its
allegations, the burden shifts to respondent to show that it does have rights
or legitimate interests pursuant to paragraph 4(a)(ii) of the Policy.”); see also Swedish Match UK Ltd. v. Admin, Domain, FA 873137 (Nat. Arb. Forum Feb. 13, 2007) (finding that once a prima facie case has been established by
the complainant, the burden then shifts to the respondent to demonstrate its
rights or legitimate interests in the disputed domain name pursuant to Policy ¶
4(c)). The Panel finds that Complainant made
a prima facie case, and that the
burden of proof has shifted to Respondent.
Given Respondent’s failure to respond to these proceedings, the Panel
finds that it may accept Complainant’s allegations as true and proceed
accordingly. See Do the Hustle, LLC v.
Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (“Failure of a
respondent to come forward to [contest complainant’s allegations] is tantamount
to admitting the truth of complainant’s assertions in this regard.”); see also EK Success, Ltd. v. Yi-Chi,
CPR0314 (CPR June 12, 2003) (“[T]he Respondent's
default cannot simply be construed as an admission of the allegations contained
in the Complaint.”).
However, this Panel still evaluates
the evidence on record to determine whether it suggests that Respondent has
rights or legitimate interests in the disputed domain name under Policy ¶ 4(c).
Complainant contends that Respondent has not been authorized to use Complainant’s mark in the disputed domain name, and that Respondent is not commonly known by the <trafficmarketplace.info> domain name. The WHOIS information does not indicate that Respondent is commonly known by the disputed domain name, and Respondent does not otherwise offer any evidence to refute Complainant’s contentions. Therefore, the Panel finds that Respondent is not commonly known by the <trafficmarketplace.info> domain name under Policy ¶ 4(c)(ii) based on all the evidence in the record and Complainant’s assertion that Respondent has not been authorized to use Complainant’s mark. 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).
Complainant further alleges that Respondent lacks rights and legitimate interests in the disputed domain name because Respondent is not using the disputed domain name in connection with a bona fide offering of goods or services. Complainant contends that Respondent is using the <trafficmarketplace.info> domain name to resolve to Respondent’s advertising and marketing website that directly competes with Complainant’s company. Complainant asserts that Respondent’s website invites Internet users to open an account for a pay-per-click advertising website that pays participants in excess of $10,200.00, and Complainant urges that Respondent is benefiting financially from this use of Complainant’s mark. The Panel finds that Respondent’s use of the disputed domain name to redirect Internet users to Respondent’s competing business and website is not a use in connection with a bona fide offering of goods or services under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See Computerized Sec. Sys., Inc. v. Hu, FA 157321 (Nat. Arb. Forum June 23, 2003) (“Respondent’s appropriation of [Complainant’s] SAFLOK mark to market products that compete with Complainant’s goods does not constitute a bona fide offering of goods and services.”); see also Clear Channel Commc’ns, Inc. v. Beaty Enters., FA 135008 (Nat. Arb. Forum Jan. 2, 2003) (finding that the respondent, as a competitor of the complainant, had no rights or legitimate interests in a domain name that utilized the complainant’s mark for its competing website).
The Panel finds that Respondent has no rights to or legitimate interest in the disputed domain name; Complainant satisfied the elements of ICANN Policy ¶ 4(a)(ii).
Complainant contends that Respondent is appropriating Complainant’s TRAFFICMARKETPLACE mark to divert Internet users away from Complainant’s Internet advertising company and to Respondent’s competing advertising and marketing company. Complainant urges that Respondent’s registration and use of the <trafficmarketplace.info> domain name was therefore made in bad faith because Respondent is disrupting Complainant’s online business. The Panel agrees and finds that Respondent registered and used the disputed domain name in bad faith under Policy ¶ 4(b)(iii) because Respondent is using the identical <trafficmarketplace.info> domain name to divert Internet users away from Complainant’s advertising and marketing business and to Respondent’s competing business. See DatingDirect.com Ltd. v. Aston, FA 593977 (Nat. Arb. Forum Dec. 28, 2005) (“Respondent is appropriating Complainant’s mark to divert Complainant’s customers to Respondent’s competing business. The Panel finds this diversion is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iii).”); see also Surface Prot. Indus., Inc. v. Webposters, D2000-1613 (WIPO Feb. 5, 2001) (finding that, given the competitive relationship between the complainant and the respondent, the respondent likely registered the contested domain name with the intent to disrupt the complainant's business and create user confusion).
Complainant further alleges that Respondent is profiting
from the diversionary use of the <trafficmarketplace.info> domain
name mentioned above. Since Respondent is a competitor of
Complainant and inasmuch as Respondent’s use of the disputed domain name seeks to
operate an Internet advertising and marketing business that competes with
Complainant using Complainant’s own protected mark, the Panel finds that
Respondent registered and used the disputed domain name in bad faith under
Policy ¶ 4(b)(iv) because such use creates a likelihood of confusion to
Internet users searching for Complainant’s business. See Identigene, Inc. v.
Genetest Labs., D2000-1100 (WIPO Nov. 30, 2000) (finding bad faith where
the respondent's use of the domain name at issue to resolve to a website where
similar services are offered to Internet users is likely to confuse the user
into believing that the complainant is the source of or is sponsoring the
services offered at the site); see
also MathForum.com, LLC v. Weiguang
Huang, D2000-0743 (WIPO Aug. 17, 2000) (finding bad faith under Policy ¶
4(b)(iv) where the respondent registered a domain name confusingly similar to
the complainant’s mark and the domain name was used to host a commercial
website that offered similar services offered by the complainant under its
mark).
The Panel finds that Respondent registered and used the disputed domain name in bad faith; Complainant satisfied the elements of ICANN Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <trafficmarketplace.info> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Carolyn Marks Johnson, Panelist
Dated: June 28, 2010.
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