Sirius Computer Solutions, Inc. v. Jeff Gwon
Claim Number: FA1006001330945
Complainant is Sirius Computer Solutions, Inc. (“Complainant”), represented by J. Daniel Harkins, of Cox Smith Matthews Incorporated, Texas, USA. Respondent is Jeff Gwon (“Respondent”), California, USA.
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <siriuscomputersolution.net>, registered with GoDaddy.com, Inc.
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.
Complainant submitted a Complaint to the National Arbitration Forum electronically on June 21, 2010.
On June 22, 2010, GoDaddy.com, Inc. confirmed by e-mail to the National Arbitration Forum that the <siriuscomputersolution.net> domain name is registered with GoDaddy.com, Inc. and that Respondent is the current registrant of the name. 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 June 25, 2010, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 15, 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@siriuscomputersolution.net. Also on June 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 July 21, 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 (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 <siriuscomputersolution.net> domain name is confusingly similar to Complainant’s SIRIUS COMPUTER SOLUTIONS mark.
2. Respondent does not have any rights or legitimate interests in the <siriuscomputersolution.net> domain name.
3. Respondent registered and used the <siriuscomputersolution.net> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Sirius Computer Solutions, Inc., provides computer training services and distributorship services for hardware and software. Complainant holds trademark registrations with the United States Patent and Trademark Office (“USPTO”) for the SIRIUS COMPUTER SOLUTIONS mark (e.g., Reg. No. 3,798,699 filed on August 11, 2009).
Respondent, Jeff Gwon, registered the <siriuscomputersolution.net> domain name on May 29, 2010. Respondent uses the disputed domain name to host an e-mail address that Respondent posts on <craigslist.com> and purportedly offers employment opportunities with Complainant. Respondent attempted to obtain personal information from Internet users who responded to this posting.
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 asserts rights in the SIRIUS COMPUTER SOLUTIONS
mark through its registration of the mark with the USPTO. The Panel finds this registration sufficiently
establishes Complainant’s rights in the SIRIUS COMPUTER SOLUTIONS mark pursuant
to Policy ¶ 4(a)(i). See Expedia,
Inc. v. Tan, FA 991075 (Nat. Arb. Forum June 29, 2007) (“As the
[complainant’s] mark is registered with the USPTO, [the] complainant has met
the requirements of Policy ¶ 4(a)(i).”); see
also Hershey Co. v. Reaves,
FA 967818 (Nat. Arb. Forum June 8, 2007) (finding that the complainant’s rights
in the KISSES trademark through registration of the mark with the USPTO “date back to the filing date of the
trademark application and predate [the] respondent’s registration”).
Respondent’s <siriuscomputersolution.net> domain name is confusingly similar to its SIRIUS COMPUTER SOLUTIONS mark. Respondent fully incorporates the first two words in Complainant’s mark in the disputed domain name, and simply deletes the letter “s” from the third word in Complainant’s mark. Respondent also deletes the spaces between the words in Complainant’s mark in the disputed domain name and adds the generic top-level domain (“gTLD”) “.net” to the disputed domain name. The Panel finds these slight alterations do not distinguish Respondent’s domain name from Complainant’s mark. See Keystone Publ’g., Inc. v. UtahBrides.com, D2004-0725 (WIPO Nov. 17, 2004) (finding that the <utahwedding.com> domain name was confusingly similar to the complainant’s UTAHWEDDINGS.COM mark because the domain name simply lacked the letter “s”); see also Universal City Studios, Inc. v. HarperStephens, D2000-0716 (WIPO Sept. 5, 2000) (finding that deleting the letter “s” from the complainant’s UNIVERSAL STUDIOS STORE mark did not change the overall impression of the mark and thus made the disputed domain name confusingly similar to it); see also Gurney’s Inn Resort & Spa Ltd. v. Whitney, FA 140656 (Nat. Arb. Forum Feb. 19, 2003) (“Punctuation and spaces between words are not significant in determining the similarity of a domain name and a mark because punctuation and spaces are not reproducible in a domain name.”); see also 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). Therefore, the Panel finds Respondent’s <siriuscomputersolution.net> domain name is confusingly similar to Complainant’s SIRIUS COMPUTER SOLUTIONS mark under Policy ¶ 4(a)(i).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(i).
Complainant must first make a prima facie case showing Respondent lacks rights and legitimate interests in the <siriuscomputersolution.net> domain name pursuant to Policy ¶ 4(a)(ii). The burden then shifts to Respondent to prove it has rights or legitimate interests in the disputed domain name. Respondent’s failure to submit a response may be seen as evidence that Respondent lacks rights and legitimate interests. See Intel Corp. v. Macare, FA 660685 (Nat. Arb. Forum Apr. 26, 2006) (finding the “complainant must first make a prima facie case that [the] respondent lacks rights and legitimate interests in the disputed domain names under Policy ¶ 4(a)(ii), and then the burden shifts to [the] respondent to show it does have rights or legitimate interests.”); see also 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.”). Although Respondent’s failed to respond, the Panel will evaluate the record to determine if Respondent has rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(c).
Complainant contends Respondent is not licensed or otherwise authorized to use its mark in a domain name. In addition, the WHOIS information lists “Jeff Gwon” as the registrant of the <siriuscomputersolution.net> domain name. With no evidence to the contrary, the Panel finds Respondent is not commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii). See Braun Corp. v. Loney, FA 699652 (Nat. Arb. Forum July 7, 2006) (concluding that the respondent was not commonly known by the disputed domain names where the WHOIS information, as well as all other information in the record, gave no indication that the respondent was commonly known by the disputed domain names, and the complainant had not authorized the respondent to register a domain name containing its registered mark); see also Reese v. Morgan, FA 917029 (Nat. Arb. Forum Apr. 5, 2007) (concluding that the respondent was not commonly known by the <lilpunk.com> domain name as there was no evidence in the record showing that the respondent was commonly known by that domain name, including the WHOIS information as well as the complainant’s assertion that it did not authorize or license the respondent’s use of its mark in a domain name).
Complainant avers that Respondent uses the disputed domain name to create spam e-mails to solicit Internet users’ personal information. Complainant submits into evidence a statement from Marty Ramirez, Complainant’s Corporate Recruiter. According to Mr. Ramirez, he began receiving inquiries from various individuals the week of June 7, 2010 in response to postings on <craigslist.com> for employment opportunities that had been posted by Complainant. Mr. Ramirez states multiple callers informed him that Respondent’s posting on <craigslist.com> was advertised with the <siriuscomputersolution.net> domain name. Mr. Ramirez also claims that Respondent asked potential applicants to provide confidential and private information, including the individual’s social security number, home address, whether the individual was married, and whether the individual had children. Based on the evidence in the record, the Panel finds Respondent’s attempt to use the disputed domain name to obtain Internet users’ personal information constitutes phishing. Therefore, the Panel finds this
fraudulent use does not qualify as 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). See Juno Online Servs., Inc. v. Nelson, FA 241972 (Nat. Arb. Forum Mar. 29, 2004) (finding that using a domain name in a fraudulent scheme to deceive Internet users into providing their credit card and personal information is not a bona fide offering of goods or services nor a legitimate noncommercial or fair use); see also HOPE worldwide, Ltd. v. Jin, FA 320379 (Nat. Arb. Forum Nov. 11, 2004) (finding that a domain name that “is confusingly similar to Complainant’s mark, redirects Internet users to a website that imitates Complainant’s website, and is used to acquire personal information from Complainant’s potential associates fraudulently” does not fall within the parameters of Policy ¶¶ 4(c)(i) or (iii)).
Furthermore, the Panel finds Respondent’s disputed domain name incorporates a common misspelling of Complainant’s mark. The <siriuscomputersolution.net> domain name is almost identical to Complainant’s SIRIUS COMPUTER SOLUTIONS mark except for the missing letter “s” at the end of the third word in Complainant’s mark. Consequently, the Panel finds Respondent’s use of the disputed domain name constitutes typosquatting, which is further evidence that Respondent lacks rights and legitimate interests under 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 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 Complainant has satisfied Policy ¶ 4(a)(ii).
Respondent uses the disputed domain name to intentionally attempt to attract, for commercial gain, Internet users to Respondent’s fraudulent <craigslist.com> posting, by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s posting. The Panel presumes Respondent intends to profit from soliciting Internet users’ personal information. Therefore, the Panel finds Respondent’s use of a confusingly similar domain name to deceive Internet users qualifies as registration and use in bad faith under Policy ¶ 4(b)(iv). See Entrepreneur Media, Inc. v. Smith, 279 F.3d 1135, 1148 (9th Cir. 2002) ("While an intent to confuse consumers is not required for a finding of trademark infringement, intent to deceive is strong evidence of a likelihood of confusion."); see also Anne of Green Gable Licensing Auth., Inc. v. Internetworks, AF-0109 (eResolution June 12, 2000) (finding that the respondent violated Policy ¶ 4(b)(iv) because the respondent admittedly used the complainant’s well-known mark to attract users to the respondent's website).
Moreover, the Panel finds Respondent’s use of the disputed domain name to phish for Internet users’ private and confidential information, including social security numbers and home addresses, provides additional evidence of registration and use in bad faith pursuant to Policy ¶ 4(a)(iii). See Wells Fargo & Co. v. Maniac State, FA 608239 (Nat. Arb. Forum Jan. 19, 2006) (finding bad faith registration and use where the respondent was using the <wellsbankupdate.com> domain name in order to fraudulently acquire the personal and financial information of the complainant’s customers); see also Hess Corp. v. GR, FA 770909 (Nat. Arb. Forum Sept. 19, 2006) (finding that the respondent demonstrated bad faith registration and use because it was attempting to acquire the personal and financial information of Internet users through a confusingly similar domain name).
Finally, the Panel finds Respondent’s use of the disputed domain name to engage in typosquatting constitutes 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 Nat’l Ass’n of Prof’l Baseball League, Inc. v. Zuccarini, D2002-1011 (WIPO Jan. 21, 2003) (“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.”).
The Panel finds Complainant has satisfied 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 <siriuscomputersolution.net> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: July 28, 2010
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