RealtyTrac, Inc. v. Alichec Inc. c/o Brett Alichec a/k/a Oleg Techino a/k/a Oleg Techino a/k/a Balram Brahmin c/o Balram Brahmin a/k/a Crystal Image Pty Ltd c/o Antonio Marques a/k/a David Ghou c/o David Ghou a/k/a Denesh Kumar c/o Denesh Kumar a/k/a Denholm Borg c/o Denholm Borg a/k/a Elarson & Associates Pty Ltd c/o Eric Larson a/k/a Domain Administrator a/k/a Lidnick Webcorp Inc c/o Lidnick Webcorp a/k/a Liquid SEO Limited c/o Julian Greenberg a/k/a Luchichang Pty Ltd c/o Luchichang Luchichang a/k/a Netmilo c/o Stoyan Bagdanov a/k/a Orel Hlasek LLC c/o Orel Hlasek a/k/a Vlad Obchikov c/o Vlad Obchikov a/k/a Volchar Pty Ltd c/o Domain Administrator a/k/a Web Pescados LLC c/o Augustine Rivera a/k/a Webatopia Marketing Limited c/o Michael Short a/k/a Alex Ovechkin a/k/a WuWeb Pty Ltd c/o Michael Chung Wu
Claim Number: FA1007001337666
Complainant is RealtyTrac,
Inc. (“Complainant”), represented by CitizenHawk,
Inc.,
REGISTRAR AND DISPUTED DOMAIN
NAMES
The domain names at issue are <fealtytrac.com>, <realtydrac.com>, <rrealtytrac.com>, <real5ytrac.com>, <realtytfac.com>, <realtytras.com>, <realtytrad.com>, <reaotytrac.com>, <realttyrac.com>, <real6ytrac.com>, <rialtytrac.com>, <realthtrac.com>, <realdytrac.com>, <realtgtrac.com>, <realtyfrac.com>, <realtyitrac.com>, <realtygrac.com>, <rsaltytrac.com>, <raaltytrac.com>, and <realfytrac.com>, registered with GoDaddy.com.
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 27, 2010.
On Jul 28, 2010, GoDaddy.com confirmed by e-mail to the National Arbitration Forum that the <fealtytrac.com>, <realtydrac.com>, <rrealtytrac.com>, <real5ytrac.com>, <realtytfac.com>, <realtytras.com>, <realtytrad.com>, <reaotytrac.com>, <realttyrac.com>, <real6ytrac.com>, <rialtytrac.com>, <realthtrac.com>, <realdytrac.com>, <realtgtrac.com>, <realtyfrac.com>, <realtyitrac.com>, <realtygrac.com>, <rsaltytrac.com>, <raaltytrac.com>, and <realfytrac.com> domain names are registered with GoDaddy.com and that Respondent is the current registrant of the names. GoDaddy.com has verified that Respondent is bound by the GoDaddy.com 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 August 2, 2010, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 23, 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@fealtytrac.com, postmaster@realtydrac.com, postmaster@rrealtytrac.com, postmaster@real5ytrac.com, postmaster@realtytfac.com, postmaster@realtytras.com, postmaster@realtytrad.com, postmaster@reaotytrac.com, postmaster@realttyrac.com, postmaster@real6ytrac.com, postmaster@rialtytrac.com, postmaster@realthtrac.com, postmaster@realdytrac.com, postmaster@realtgtrac.com, postmaster@realtyfrac.com, postmaster@realtyitrac.com, postmaster@realtygrac.com, postmaster@rsaltytrac.com, postmaster@raaltytrac.com, and postmaster@realfytrac.com by e-mail. Also on August 2, 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 31, 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 names be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <fealtytrac.com>, <realtydrac.com>, <rrealtytrac.com>, <real5ytrac.com>, <realtytfac.com>, <realtytras.com>, <realtytrad.com>, <reaotytrac.com>, <realttyrac.com>, <real6ytrac.com>, <rialtytrac.com>, <realthtrac.com>, <realdytrac.com>, <realtgtrac.com>, <realtyfrac.com>, <realtyitrac.com>, <realtygrac.com>, <rsaltytrac.com>, <raaltytrac.com>, and <realfytrac.com> domain names are confusingly similar to Complainant’s REALTYTRAC mark.
2. Respondent does not have any rights or legitimate interests in the <fealtytrac.com>, <realtydrac.com>, <rrealtytrac.com>, <real5ytrac.com>, <realtytfac.com>, <realtytras.com>, <realtytrad.com>, <reaotytrac.com>, <realttyrac.com>, <real6ytrac.com>, <rialtytrac.com>, <realthtrac.com>, <realdytrac.com>, <realtgtrac.com>, <realtyfrac.com>, <realtyitrac.com>, <realtygrac.com>, <rsaltytrac.com>, <raaltytrac.com>, and <realfytrac.com> domain names.
3. Respondent registered and used the <fealtytrac.com>, <realtydrac.com>, <rrealtytrac.com>, <real5ytrac.com>, <realtytfac.com>, <realtytras.com>, <realtytrad.com>, <reaotytrac.com>, <realttyrac.com>, <real6ytrac.com>, <rialtytrac.com>, <realthtrac.com>, <realdytrac.com>, <realtgtrac.com>, <realtyfrac.com>, <realtyitrac.com>, <realtygrac.com>, <rsaltytrac.com>, <raaltytrac.com>, and <realfytrac.com> domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, RealtyTrac, Inc., owns multiple trademark registrations for its REALTYTRAC mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 3,078,577 filed April 19, 2004; issued April 11, 2006). Complainant uses its REALTYTRAC mark for providing real estate information and an Internet subscription based marketplace for real estate purchases and contact information of sellers or sellers’ agents.
Respondent registered the <fealtytrac.com>, <realtydrac.com>, <rrealtytrac.com>, <real5ytrac.com>, <realtytfac.com>, <realtytras.com>, <realtytrad.com>, <reaotytrac.com>, <realttyrac.com>, <real6ytrac.com>, <rialtytrac.com>, <realthtrac.com>, <realdytrac.com>, <realtgtrac.com>, <realtyfrac.com>, <realtyitrac.com>, <realtygrac.com>, <rsaltytrac.com>, <raaltytrac.com>, and <realfytrac.com> domain names on October 19, 2004. The disputed domain names resolve to websites that contain hyperlinks to Complainant’s competitors.
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.
Preliminary Issue:
Multiple Respondents
In the instant proceedings, Complainant has alleged that the entities which control the domain names at issue are effectively controlled by the same person and/or entity, which is operating under several aliases. Paragraph 3(c) of the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”) provides that a “complaint may relate to more than one domain name, provided that the domain names are registered by the same domain name holder.” The Panel determines that Complainant has presented sufficient evidence that the disputed domain names are controlled by a single entity using multiple aliases.
Complainant has registered its REALTYTRAC mark with the USPTO (e.g., Reg. No. 3,078,577 filed April 19, 2004; issued April 11, 2006). Previous panels have held that a trademark registration with the USPTO is sufficient to establish rights in a mark pursuant to Policy ¶ 4(a)(i). Therefore, the Panel finds Complainant has established rights in the REALTYTRAC mark through its registration with the USPTO under Policy ¶ 4(a)(i). See Intel Corp. v. Macare, FA 660685 (Nat. Arb. Forum Apr. 26, 2006) (finding that the complainant had established rights in the PENTIUM, CENTRINO and INTEL INSIDE marks by registering the marks with the USPTO); see also Metro. Life Ins. Co. v. Bonds, FA 873143 (Nat. Arb. Forum Feb. 16, 2007) (finding that a trademark registration adequately demonstrates a complainant’s rights in a mark under Policy ¶ 4(a)(i)); see also Phoenix Mortgage Corp. v. Toggas, D2001-0101 (WIPO Mar. 30, 2001) (“The effective date of Complainant's federal rights is . . . the filing date of its issued registration. Although it might be possible to establish rights prior to that date based on use, Complainant has submitted insufficient evidence to prove common law rights before the filing date of its federal registration.”); see also Wal-Mart Stores, Inc. v. Stork, D2000-0628 (WIPO Aug. 11, 2000) (finding the complainant has rights to the name when the mark is registered in a country even if the complainant has never traded in that country).
Complainant contends that Respondent’s <fealtytrac.com>, <realtydrac.com>, <rrealtytrac.com>,
<real5ytrac.com>, <realtytfac.com>, <realtytras.com>,
<realtytrad.com>, <reaotytrac.com>, <realttyrac.com>,
<real6ytrac.com>, <rialtytrac.com>, <realthtrac.com>,
<realdytrac.com>, <realtgtrac.com>, <realtyfrac.com>,
<realtyitrac.com>, <realtygrac.com>, <rsaltytrac.com>,
<raaltytrac.com>, and <realfytrac.com> domain
names are confusingly similar to Complainant’s REALTYTRAC mark. The disputed domain names all contain common
misspellings of Complainant’s REALTYTRAC mark by replacing letters with a
different letter, adding letters, adding numbers, and transposing letters. The disputed domain names also append the
generic top-level domain (“gTLD”) “.com.”
The Panel finds the use of common misspellings of Complainant’s mark
coupled with the addition of a gTLD fails to sufficiently distinguish the
disputed domain names from Complainant’s mark.
See Belkin Components v. Gallant,
FA 97075 (Nat. Arb. Forum May 29, 2001) (finding the <belken.com> domain
name confusingly similar to the complainant's BELKIN mark because the name
merely replaced the letter “i” in the complainant's mark with the letter “e”); see also Marriott Int'l, Inc. v. Seocho, FA 149187 (Nat. Arb. Forum Apr. 28, 2003) (finding that
the respondent's <marrriott.com> domain name was confusingly
similar to the complainant's MARRIOTT mark); see also Am. Online, Inc. v. garybush co
The Panel finds Policy ¶ 4(a)(i) has been satisfied.
Complainant has alleged that Respondent does not have any rights or legitimate interests in the <fealtytrac.com>, <realtydrac.com>, <rrealtytrac.com>, <real5ytrac.com>, <realtytfac.com>, <realtytras.com>, <realtytrad.com>, <reaotytrac.com>, <realttyrac.com>, <real6ytrac.com>, <rialtytrac.com>, <realthtrac.com>, <realdytrac.com>, <realtgtrac.com>, <realtyfrac.com>, <realtyitrac.com>, <realtygrac.com>, <rsaltytrac.com>, <raaltytrac.com>, and <realfytrac.com> domain names. Once Complainant makes a prima facie case in support of its allegations, the burden shifts to Respondent to prove that it does have rights or legitimate interests pursuant to Policy ¶ 4(a)(ii). The Panel finds Complainant has made a sufficient prima facie case. Due to Respondent’s failure to respond to the Complaint, the Panel may assume that Respondent does not have rights or legitimate interests in the disputed domain names. However, the Panel will examine the record to determine whether Respondent has rights or legitimate interests in the disputed domain names under Policy ¶ 4(c). See Document Techs., Inc. v. Int’l Elec. Commc’ns Inc., D2000-0270 (WIPO June 6, 2000) (“Although Paragraph 4(a) of the Policy requires that the Complainant prove the presence of this element (along with the other two), once a Complainant makes out a prima facie showing, the burden of production on this factor shifts to the Respondent to rebut the showing by providing concrete evidence that it has rights to or legitimate interests in the Domain Name.”); see also 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).
Respondent offers no evidence to suggest Respondent is commonly known by the disputed domain names. Furthermore, the Panel fails to find evidence in the record that Respondent is commonly known by disputed domain names. Complainant contends that Respondent has never been authorized to use the REALTYTRAC mark and that Respondent is not sponsored by or legitimately affiliated with Complainant. The WHOIS information does not indicate that Respondent is commonly known by the disputed domain names. Therefore, the Panel finds Respondent has failed to establish rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(c)(ii). See Gallup, Inc. v. Amish Country Store, FA 96209 (Nat. Arb. Forum Jan. 23, 2001) (finding that the respondent does not have rights in a domain name when the respondent is not known by the mark); see also Am. W. Airlines, Inc. v. Paik, FA 206396 (Nat. Arb. Forum Dec. 22, 2003) (“Respondent has registered the domain name under the name ‘Ilyoup Paik a/k/a David Sanders.’ Given the WHOIS domain name registration information, Respondent is not commonly known by the [<awvacations.com>] domain name.”).
Respondent uses the disputed domain names to resolve to websites featuring hyperlinks to third-party companies, including competitors of Complainant’s real estate business. Respondent likely profits from these hyperlinks through the receipt of pay-per-click fees. The Panel finds that this use is not a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use of the disputed domain names under Policy ¶ 4(c)(iii). See TM Acquisition Corp. v. Sign Guards, FA 132439 (Nat. Arb. Forum Dec. 31, 2002) (finding that the respondent’s diversionary use of the complainant’s marks to send Internet users to a website which displayed a series of links, some of which linked to the complainant’s competitors, was not a bona fide offering of goods or services); see also Expedia, Inc. v. Compaid, FA 520654 (Nat. Arb. Forum Aug. 30, 2005) (finding that the respondent’s use of the <expediate.com> domain name to redirect Internet users to a website featuring links to travel services that competed with the complainant 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)).
Moreover, Complainant claims that Respondent’s use of the disputed
domain names constitutes typosquatting.
The Panel finds that Respondent’s use of domain names that are common misspellings
of the REALTYTRAC mark to redirect Internet users seeking Complainant’s website
to Respondent’s website constitutes typosquatting and is further evidence that
Respondent lacks rights or interests pursuant to Policy ¶ 4(a)(ii). See Microsoft Corp. v. Domain
Registration
The Panel finds Complainant has satisfied Policy ¶ 4(a)(ii).
Respondent’s disputed domain names resolve to websites featuring hyperlinks to Complainant’s competitors in the real estate business. The Panel finds Respondent’s use of confusingly similar disputed domain names for this purpose constitutes disruption of Complainant’s business, which is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iii). See Tesco Pers. Fin. Ltd. v. Domain Mgmt. Servs., FA 877982 (Nat. Arb. Forum Feb. 13, 2007) (concluding that the use of a confusingly similar domain name to attract Internet users to a directory website containing commercial links to the websites of a complainant’s competitors represents bad faith registration and use under Policy ¶ 4(b)(iii)); see also David Hall Rare Coins v. Tex. Int’l Prop. Assocs., FA 915206 (Nat. Arb. Forum Apr. 9, 2007) (finding that the respondent registered and used the disputed domain name in bad faith pursuant to Policy ¶ 4(b)(iii) because respondent used the disputed domain name to advertise goods and services of complainant’s competitors, thereby disrupting the complainant’s business).
Complainant contends, and the Panel infers, that Respondent
receives pay-per-click fees from the aforementioned hyperlinks. The Panel determines that Respondent is using
the confusingly similar disputed domain names to profit from Internet users’
confusion as to Complainant’s affiliation with the disputed domain names and
resolving websites. The Panel finds
Respondent’s use of the disputed domain names constitutes bad faith
registration and use under Policy ¶ 4(b)(iv). See
Finally, the Panel has previously determined that Respondent has engaged in typosquatting through its use of the disputed domain names, which are common misspellings of Complainant’s REALTYTRAC mark. Therefore, the Panel finds Respondent’s typosquatting provides further evidence 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).”); 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 <fealtytrac.com>, <realtydrac.com>, <rrealtytrac.com>, <real5ytrac.com>, <realtytfac.com>, <realtytras.com>, <realtytrad.com>, <reaotytrac.com>, <realttyrac.com>, <real6ytrac.com>, <rialtytrac.com>, <realthtrac.com>, <realdytrac.com>, <realtgtrac.com>, <realtyfrac.com>, <realtyitrac.com>, <realtygrac.com>, <rsaltytrac.com>, <raaltytrac.com>, and <realfytrac.com> domain names be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: September 7, 2010
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