Intelius Inc. v. 21562719 Ont Ltd
Claim Number: FA1007001336877
Complainant is Intelius Inc. (“Complainant”), represented by Parna A. Mehrbani, of Lane Powell PC, Oregon, USA. Respondent is 21562719 Ont Ltd (“Respondent”), Canada.
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <inteluis.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.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on July 22, 2010.
On July 22, 2010, Fabulous.com Pty Ltd. confirmed by e-mail to the National Arbitration Forum that the <inteluis.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 July 27, 2010, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 16, 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@inteluis.com. Also on July 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 August 24, 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.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <inteluis.com> domain name is confusingly similar to Complainant’s INTELIUS mark.
2. Respondent does not have any rights or legitimate interests in the <inteluis.com> domain name.
3. Respondent registered and used the <inteluis.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Intelius Inc., offers services to businesses and individuals seeking to perform employment and tenant screening, background and credit checks, or to search for other publicly available records and data about people, property, and businesses on the website resolving from its <intelius.com> domain name. Complainant holds a trademark registration with the United States Patent and Trademark Office (“USPTO”) for its INTELIUS mark (Reg. No. 3,096,294 filed January 9, 2003; issued May 23, 2006).
Respondent, 21562719 Ont Ltd, registered the disputed domain name on October 16, 2004. The disputed domain name resolves to a website that features links to services and products that are in competition with Complainant.
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 its INTELIUS mark based on its
registration of the mark with the USPTO (Reg. No. 3,096,294 filed January 9,
2003; issued May 23, 2006). The Panel
finds that Complainant’s registration of the INTELIUS mark is sufficient
evidence of its rights in the mark pursuant to Policy ¶ 4(a)(i) and that the
relevant date of Complainant’s rights in its INTELIUS mark is the date
Complainant’s registration was filed. 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”). Therefore,
the Panel finds that Complainant’s rights in its INTELIUS mark date back to the
January 9, 2003 under Policy ¶ 4(a)(i).
Respondent’s <inteluis.com>
domain name is confusingly similar to Complainant’s INTELIUS mark. Respondent’s domain name contains a common
misspelling of Complainant’s mark achieved by transposing the letters “u” and
“i” and appends the generic top-level domain (“gTLD”) “.com.” The Panel finds that the transposition of two
letters and the addition of a gTLD are not sufficient to avoid a finding of
confusing similarity. See 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 Wyndham IP Corp. v.
LaPorte Holdings, Inc., FA 373545 (Nat. Arb. Forum Jan. 17, 2005) (finding
the <wynhdam.com> and <wyandham.com> domain names to be confusingly
similar to the complainant’s WYNDHAM mark because the domain names merely
transposed letters in the mark); 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). Thus, the Panel finds that
Respondent’s <inteluis.com> domain name is confusingly similar to Complainant’s INTELIUS mark
pursuant to Policy ¶ 4(a)(i).
The Panel finds that Policy ¶ 4(a)(i) is satisfied.
Complainant alleges that Respondent has no rights or legitimate interests in the disputed domain name. Once Complainant makes a prima facie case in support of its allegations, the burden shifts to Respondent to prove it has rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(a)(ii). Based on the arguments made in the Complaint, the Panel finds that Complainant has established a prima facie case in support of its contentions. 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)). Respondent has failed to submit a Response to these proceedings. However, the Panel will examine the record in light of the factors in Policy ¶ 4(c) to determine whether Respondent has rights or legitimate interests in the disputed domain name.
The WHOIS information lists the registrant of the disputed domain name as “21562719 Ont Ltd.” The Panel finds that this is not similar to the disputed domain name and therefore finds that Respondent is not commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii). See Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Nat. Arb. Forum July 17, 2006) (concluding that the respondent was not commonly known by the <coppertown.com> domain name where there was no evidence in the record, including the WHOIS information, suggesting that the respondent was 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 alleges that Respondent’s disputed domain name resolves to a website featuring links to Complainant and Complainant’s competitors. Complainant further alleges that the links on Respondent’s resolving website feature many of the same or similar search categories, such as “People Search” and “Reverse Phone Lookup,” as those used on Complainant’s official website resolving from the <intelius.com> domain name. The Panel finds that 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 pursuant to Policy ¶ 4(c)(iii). See Jerry Damson, Inc. v. Tex. Int’l Prop. Assocs., FA 916991 (Nat. Arb. Forum Apr. 10, 2007) (concluding that the use of a confusingly similar domain name to operate a portal with hyperlinks to various third-party websites, some of which may be in direct competition with a complainant, does 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 also Bond & Co. Jewelers, Inc. v. Tex. Int’l Prop. Assocs., FA 937650 (Nat. Arb. Forum Apr. 30, 2007) (finding that the use of the disputed domain name to operate a website displaying links to competing goods and services was not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii)).
Complainant has alleged that Respondent has engaged in the practice of typosquatting based on its registration and use of the disputed domain name which contains a common misspelling of Complainant’s INTELIUS mark. The Panel finds that Respondent’s use of the disputed domain name which merely transposes two letters in Complainant’s mark is indeed evidence of typosquatting which indicates that Respondent lacks rights and legitimate interests in the disputed domain name. See 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”); 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 that Policy ¶ 4(a)(ii) is satisfied.
The Panel finds that Respondent’s registration and use of the disputed domain name to redirect Internet users who seek Complainant’s services to websites of Complainant’s competitors constitutes a disruption of Complainant’s business and is evidence of Respondent’s bad faith under Policy ¶ 4(b)(iii). See Red Hat, Inc. v. Haecke, FA 726010 (Nat. Arb. Forum July 24, 2006) (finding that the respondent engaged in bad faith registration and use pursuant to Policy ¶ 4(b)(iii) by using the disputed domain names to operate a commercial search engine with links to the products of the complainant and to complainant’s competitors, as well as by diverting Internet users to several other domain names); see also Persohn v. Lim, FA 874447 (Nat. Arb. Forum Feb. 19, 2007) (finding bad faith registration and use pursuant to Policy ¶ 4(b)(iii) where a respondent used the disputed domain name to operate a commercial search engine with links to the complainant’s competitors).
Respondent presumably earns click-through fees for diverting Internet users to other websites and taking advantage of the confusing similarity between the disputed domain name and Complainant’s mark. The Panel finds that Respondent is intentionally attempting to attract, for its own commercial gain, Internet users to its website, and that Respondent has engaged in bad faith registration and use pursuant to Policy ¶ 4(b)(iv). See Red Hat, Inc. v. Haecke, FA 726010 (Nat. Arb. Forum July 24, 2006) (finding that the respondent engaged in bad faith registration and use pursuant to Policy ¶ 4(b)(iv) by using the disputed domain names to operate a commercial search engine with links to the products of the complainant and to complainant’s competitors, as well as by diverting Internet users to several other domain names); see also T-Mobile USA, Inc. v. utahhealth, FA 697821 (Nat. Arb. Forum June 7, 2006) (holding that the registration and use of a domain name confusingly similar to a complainant’s mark to direct Internet traffic to a commercial “links page” in order to profit from click-through fees or other revenue sources constitutes bad faith under Policy ¶ 4(b)(iv)).
Respondent has engaged in the practice of typosquatting by registering and using the disputed domain name containing a common misspelling of Complainant’s INTELIUS mark. The Panel finds that typosquatting is itself evidence of Respondent’s bad faith registration and use under 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 Internet Movie Database, Inc. v. Temme, FA 449837 (Nat. Arb. Forum May 24, 2005) (“Respondent's registration of the domain names in dispute constitutes bad faith because the domain names are merely typosquatted versions of the [complainant’s] IMDB mark.).
The Panel finds that Policy ¶ 4(a)(iii) is 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 <inteluis.com> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: August 31, 2010
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