Fandango, Inc. v. zhang yanan
Claim Number: FA1007001335297
Complainant is Fandango,
Inc. (“Complainant”), represented by Steven
M. Levy,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <cheapfandangoticket.com>, registered with MELBOURNE IT, LTD. d/b/a INTERNET NAMES WORLDWIDE.
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.
The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on July 14, 2010.
On July 19, 2010, MELBOURNE IT, LTD. d/b/a INTERNET NAMES WORLDWIDE confirmed by e-mail to the National Arbitration Forum that the <cheapfandangoticket.com> domain name is registered with MELBOURNE IT, LTD. d/b/a INTERNET NAMES WORLDWIDE and that Respondent is the current registrant of the name. MELBOURNE IT, LTD. d/b/a INTERNET NAMES WORLDWIDE has verified that Respondent is bound by the MELBOURNE IT, LTD. d/b/a INTERNET NAMES WORLDWIDE 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 July 23, 2010, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 12, 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@cheapfandangoticket.com. Also on July 23, 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 August 17, 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed the Honorable Charles K. McCotter, Jr. (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 <cheapfandangoticket.com> domain name is confusingly similar to Complainant’s FANDANGO mark.
2. Respondent does not have any rights or legitimate interests in the <cheapfandangoticket.com> domain name.
3. Respondent registered and used the <cheapfandangoticket.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Fandango, Inc., provides movie information and sells movies tickets online. Complainant owns numerous trademark registrations with the United States Patent and Trademark Office (“USPTO”) for its FANDANGO mark (e.g., Reg. No. 2,769,579 registered on September 30, 2003).
Respondent, zhang yanan, registered the <cheapfandangoticket.com> domain name on May 24, 2010. The disputed domain name resolves to a website that displays duplicates of Complainant’s FANDANGO mark. The resolving website also attempts to solicit Internet users’ personal and financial information.
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 FANDANGO mark through its trademark registrations of the mark with the USPTO (e.g., Reg. No. 2,769,579 registered on September 30, 2003). The Panel finds these registrations sufficiently prove Complainant’s rights in the FANDANGO 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 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.”). The Panel also finds Complainant need not register a trademark in the country in which Respondent operates. See Koninklijke KPN N.V. v. Telepathy Inc., D2001-0217 (WIPO May 7, 2001) (finding that the Policy does not require that the mark be registered in the country in which the respondent operates; therefore it is sufficient that the complainant can demonstrate a mark in some jurisdiction).
Complainant alleges Respondent’s <cheapfandangoticket.com>domain
name is confusingly similar to its FANDANGO mark. Complainant contends Respondent merely adds
the terms “cheap” and “ticket,” which describes Complainant’s services, to
Complainant’s mark in the disputed domain name.
Furthermore, Complainant argues the addition of a generic top-level
domain (“gTLD”) like “.com” does not negate a finding of confusingly
similar. The Panel finds these slight
additions do not render Respondent’s disputed domain name distinct from
Complainant’s mark. See Arthur Guinness Son & Co. (
The Panel finds Complainant has satisfied Policy ¶ 4(a)(i).
Complainant must first establish Respondent lacks rights and legitimate interests in the <cheapfandangoticket.com> domain name pursuant to Policy ¶ 4(a)(ii). The burden then shifts to Respondent to demonstrate it has rights or legitimate interests in the disputed domain name. See 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)). Prior panels have concluded that a respondent’s failure to submit a response indicates a respondent lacks rights and legitimate interests. See 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 has failed to submit a Response, the Panel will analyze the record to determine whether Respondent has rights or legitimate interests under Policy ¶ 4(c).
Complainant asserts Respondent is not commonly known by the disputed domain name. The WHOIS information lists “zhang yanan” as the registrant of the disputed domain name, which the Panel finds is not similar to <cheapfandangoticket.com>. Without evidence to the contrary, the Panel finds Respondent is not commonly known by the <cheapfandangoticket.com> 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 M. Shanken Commc’ns v. WORLDTRAVELERSONLINE.COM, FA 740335 (Nat. Arb. Forum Aug. 3, 2006) (finding that the respondent was not commonly known by the <cigaraficionada.com> domain name under Policy ¶ 4(c)(ii) based on the WHOIS information and other evidence in the record).
Complainant contends Respondent is using the disputed domain name to fraudulently obtain Internet users’ personal and financial information. Complainant provides screen shots of Respondent’s resolving website. These images show Complainant’s mark prominently displayed throughout the site. Furthermore, Respondent’s resolving website purports to sell movie tickets, a service the directly competes with Complainant’s business. In order to receive movie tickets, the resolving website requires Internet users to fill out a “movie ticket information page” and provide credit card information. Based on Complainant’s assertions and the evidence in the record, the Panel finds that “phishing” for personal information and offering competing services do not constitute 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 Capital One Fin. Corp. v. Howel, FA 289304 (Nat. Arb. Forum Aug. 11, 2004) (defining “phishing” as “a practice that is intended to defraud consumers into revealing personal and proprietary information”); see also 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)).
In addition, Respondent’s resolving website prominently
replicates Complainant’s FANDANGO mark through the site. The Panel
finds Respondent is attempting to pass itself off as Complainant by imitating
Complainant’s website, which is further evidence that Respondent lacks rights
and legitimate interests in the disputed domain name under Policy ¶4(a)(ii).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(ii).
The Panel finds Respondent uses a confusingly similar domain name to redirect Internet users seeking Complainant’s services to its competing website. Therefore, the Panel finds Respondent’s <cheapfandangoticket.com> domain name disrupts Complainant’s business, which is evidence of registration and use in bad faith pursuant to Policy ¶ 4(b)(iii). 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 Classic Metal Roofs, LLC v. Interlock Indus., Ltd., FA 724554 (Nat. Arb. Forum Aug. 1, 2006) (finding that the respondent registered and used the <classicmetalroofing.com> domain name in bad faith pursuant to Policy ¶ 4(b)(iii) by redirecting Internet users to the respondent’s competing website).
Additionally, Respondent’s confusingly similar domain name
and the display of its FANDANGO mark on Respondent’s resolving website are
likely to confuse Internet users into believing Complainant is affiliated with
Respondent’s website. Moreover, the
Panel presumes that Respondent most likely profits from this fraudulent
scheme. Therefore, the Panel concludes
Respondent has engaged in registration and use in bad faith pursuant to Policy
¶ 4(b)(iv). See Computerized Sec. Sys., Inc. v.
Hu, FA 157321 (Nat. Arb. Forum June 23, 2003) (finding that the
respondent’s use of the <saflock.com> domain name to offer goods
competing with the complainant’s illustrates the respondent’s bad faith
registration and use of the domain name, evidence of bad faith registration and
use pursuant to Policy ¶ 4(b)(iv)); see also Nokia Corp. v. Private,
D2000-1271 (WIPO Nov. 3, 2000) (finding bad faith registration and use pursuant
to Policy ¶ 4(b)(iv) where the domain name resolved to a website that offered
similar products as those sold under the complainant’s famous mark).
As previously discussed, Respondent uses its disputed domain
name to phish for Internet users’ personal information. Therefore, the Panel finds this behavior
qualifies as registration and use in bad faith pursuant to Policy ¶ 4(a)(iii). See Capital One Fin.
Corp. v. Howel, FA 289304 (Nat. Arb. Forum Aug. 11, 2004) (finding
bad faith registration and use because the respondent used the domain name to
redirect Internet users to a website that imitated the complainant’s website
and to fraudulently acquire personal information from the complainant’s
clients); see also Wells Fargo
& Co. v.
Finally, Respondent uses the <cheapfandangoticket.com>
domain name in an attempt to pass
itself off as Complainant’s official website.
Consequently, the Panel finds this behavior provides additional
evidence of registration and use in bad faith pursuant to Policy ¶ 4(a)(iii). See Capital One Fin.
Corp. & Capital One Bank v. Howel, FA 289304 (Nat. Arb. Forum
Aug. 11, 2004) (“The <capitalonebank.biz> domain name is confusingly
similar to Complainant’s mark, it is being used to redirect Internet users to a
website that imitates Complainant’s credit application website, and it is being
used to fraudulently [sic] acquire personal information from Complainant’s
clients. Respondent’s use of the domain
name supports findings of bad faith registration and use pursuant to Policy ¶
4(a)(iii).”); see also Monsanto
Co. v. Decepticons, FA 101536 (Nat. Arb. Forum Dec. 18, 2001) (finding that
the respondent's use of <monsantos.com> to misrepresent itself as the
complainant and to provide misleading information to the public
supported a finding 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 <cheapfandangoticket.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: August 27, 2010
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