Verizon Trademark Services LLC v. Dester Johnson
Claim Number: FA1005001326913
Complainant is Verizon
Trademark Services LLC (“Complainant”), represented by Patrick M. Flaherty,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <verizonewireless.com>, registered with Fabulous.com Pty 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.
Judge Harold Kalina (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on May 27, 2010.
On May 27, 2010, Fabulous.com Pty Ltd. confirmed by e-mail to the National Arbitration Forum that the <verizonewireless.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 May 28, 2010, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 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@verizonewireless.com. Also on May 28, 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 23, 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Judge Harold Kalina (Ret.) 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" 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. Respondent’s <verizonewireless.com> domain name is confusingly similar to Complainant’s VERIZON WIRELESS mark.
2. Respondent does not have any rights or legitimate interests in the <verizonewireless.com> domain name.
3. Respondent registered and used the <verizonewireless.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Verizon Trademark Services LLC, is a provider of communications and entertainment products and services to residential, business, wholesale, and government wireline and wireless customers. Complainant owns a trademark registration for the VERIZON WIRELESS mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 2,884,027 issued September 14, 2004).
Respondent, Dester Johnson, registered the <verizonewireless.com> domain name on May 1, 2009. The disputed domain name resolves to a website that is not being actively used and displays no original content.
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 owns a trademark registration for the VERIZON
WIRELESS mark with the USPTO (e.g.,
Reg. No. 2,884,027 issued September 14, 2004).
The Panel finds that registering a trademark with the USPTO grants the
Complainant rights in the VERIZON WIRELESS mark according to Policy ¶ 4(a)(i). See Reebok Int’l Ltd. v.
Complainant contends that Respondent’s <verizonewireless.com> domain name is confusingly similar to Complainant’s VERIZON WIRELESS mark because the only differences are the insertion of the letter “e” between the words “Verizon” and “wireless,” the deletion of the space between the words, and the addition of the generic top-level domain (“gTLD”) “.com.” The Panel finds that introducing a deliberate error into Complainant’s mark with the addition of a single letter is inadequate to transform the disputed domain name into a domain name that defeats a claim of confusing similarity. 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 Valpak Direct Mktg. Sys., Inc. v. Manila Indus., Inc., D2006-0714 (WIPO Aug. 17, 2006) (finding the <vallpak.com> domain name to be confusingly similar to the VALPAK mark under Policy ¶ 4(a)(i).). The Panel also finds that the deleted space and the added gTLD have no effect on the disputed domain name for the purposes of Policy ¶ 4(a)(i). See Am. Int’l Group, Inc. v. Domain Admin. Ltd., FA 1106369 (Nat. Arb. Forum Dec. 31, 2007) (finding that “spaces are impermissible and a generic top-level domain, such as ‘.com,’ ‘.net,’ ‘.biz,’ or ‘.org,’ is required in domain names. Therefore, the panel finds that the disputed domain name [<americangenerallifeinsurance.com>] is confusingly similar to the complainant’s [AMERICAN GENERAL] mark.”). The Panel therefore finds that Respondent’s <verizonewireless.com> domain name is confusingly similar to Complainant’s VERIZON WIRELESS mark pursuant to Policy ¶ 4(a)(i).
The Panel finds Policy ¶ 4(a)(i)
has been satisfied.
Policy ¶ 4(a)(ii) requires that
Complainant present a prima facie
case when alleging that Respondent lacks rights and legitimate interests. After Complainant adequately presents such a
case, as the Panel finds Complainant did in this instance, the burden shifts to
Respondent to demonstrate rights and legitimate interests in the disputed
domain name. In this case, Respondent
has failed to respond to the Complaint, indicating to the Panel that Respondent
possesses no rights or legitimate interests in the disputed domain name and
allowing the Panel to infer that Complainant’s allegations against Respondent
are true as stated. See Charles Jourdan Holding AG v. AAIM, D2000-0403 (WIPO June 27,
2000) (finding it appropriate for the panel to draw adverse inferences from the
respondent’s failure to reply to the complaint); see also Bank of
Am. Corp. v. McCall, FA 135012 (Nat. Arb.
Forum Dec. 31, 2002) (“Respondent's failure to respond not only results in its
failure to meet its burden, but also will be viewed as evidence itself that
Respondent lacks rights and legitimate interests in the disputed domain
name.”). In the interest of making an
independent determination, however, the Panel elects to consider the evidence
presented in light of the Policy ¶ 4(c) factors.
Complainant alleges that Respondent is not commonly known by
the disputed domain name. The WHOIS
information for the disputed domain name supports this allegation as it lists
the registrant as “Dester Johnson,” which has no nominal association with the
disputed domain name. As a result, the
Panel concludes that Respondent possesses no rights and legitimate interests in
the disputed domain name under Policy ¶ 4(c)(ii). See Tercent Inc. v. Lee Yi,
FA 139720 (Nat. Arb. Forum Feb. 10, 2003) (stating “nothing in
Respondent’s WHOIS information implies that Respondent is ‘commonly known by’
the disputed domain name” as one factor in determining that Policy ¶ 4(c)(ii) does not apply); see
also
Complainant argues that Respondent’s <verizonewireless.com> domain name
resolves to a website that is not in active use and displays no original
content. The Panel finds that
Respondent’s failure to make active use of the dispute domain name indicates
that Respondent does not have rights and legitimate interests as Respondent is
not using the disputed domain name in connection with a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use according to
Policy ¶ 4(c)(iii). See Thermo
Electron Corp. v. Xu, FA 713851 (Nat. Arb. Forum July 12,
2006) (finding that the respondent’s non-use of the disputed domain names
demonstrates that the respondent is not using the disputed domain names for a bona
fide offering of goods or services under Policy ¶ 4(c)(i)
or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii)); see also TMP Int’l, Inc. v. Baker Enters., FA 204112 (Nat. Arb. Forum Dec. 6, 2003) (“[T]he Panel
concludes that Respondent's [failure to make an active use] of the domain name
does not establish rights or legitimate interests pursuant to Policy ¶ 4(a)(ii).”).
The Panel finds that Respondent’s
registration of the <verizonewireless.com>
domain name that differs in only one letter from Complainant’s mark is
typosquatting, a form of domain name registration taking advantage of common
typographical errors. The Panel finds
that Respondent’s typosquatting indicates that it possesses no rights and
legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii). See Nat’l Ass’n of Prof’l
Baseball Leagues, Inc. v. Zuccarini, D2002-1011 (WIPO Jan. 21, 2003)
(“Typosquatting … as a means of redirecting consumers against their will to
another site, does not qualify as a bona fide offering of goods or services,
whatever may be the goods or services offered at that site.”); see also 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”).
The Panel finds Policy ¶ 4(a)(ii) has been satisfied.
When conducting a Policy ¶ 4(a)(iii) analysis, the Panel finds that it may consider the totality of the circumstances without being limited to the enumerated factors in Policy ¶ 4(b). See Do the Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (“[T]he examples of [bad faith] in Paragraph 4(b) are intended to be illustrative, rather than exclusive.”); see also Cellular One Group v. Brien, D2000-0028 (WIPO Mar. 10, 2000) (finding that the criteria specified in 4(b) of the Policy is not an exhaustive list of bad faith evidence).
Complainant alleges that Respondent is not making an active use of the <verizonewireless.com> domain name as the disputed domain name resolves to a website displaying only a “Network Error” message and no original content. The Panel finds that Respondent’s failure to actively use the disputed domain name indicates bad faith registration and use according to Policy ¶ 4(a)(iii). See Am. Broad. Cos., Inc. v. Sech, FA 893427 (Nat. Arb. Forum Feb. 28, 2007) (concluding that the respondent’s failure to make active use of its domain name in the three months after its registration indicated that the respondent registered the disputed domain name in bad faith); see also DCI S.A. v. Link Commercial Corp., D2000-1232 (WIPO Dec. 7, 2000) (concluding that the respondent’s [failure to make an active use] of the domain name satisfies the requirement of ¶ 4(a)(iii) of the Policy).
The Panel has previously concluded that Respondent’s
registration of the <verizonewireless.com>
domain name is typosquatting. The Panel
finds typosquatting to be evidence in itself of bad faith registration and use
pursuant to Policy ¶ 4(a)(iii). See 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).”); see
also Nextel Commc’ns Inc. v. Geer, FA 477183 (Nat. Arb. Forum July 15, 2005)
(finding that the respondent’s registration and use of the <nextell.com>
domain name was in bad faith because the domain name epitomized typosquatting
in its purest form).
The Panel finds 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 <verizonewireless.com> domain name be TRANSFERRED from Respondent to Complainant.
Judge Harold Kalina (Ret.), Panelist
Dated: July 6, 2010
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