The Knot, Inc. v. Modern Empire Internet Ltd. c/o Administrator and Domain Administrator
Claim Number: FA1010001350446
Complainant is The Knot, Inc. ("Complainant"), represented by CitizenHawk, Inc., California, USA. Respondent is Modern Empire Internet Ltd. c/o Administrator and Domain Administrator ("Respondent"), Hong Kong.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain name at issue are <theknott.com> and <thekot.com>, registered with FABULOUS.COM PTY LTD.
The undersigned certifies that she has acted independently and impartially and that to the best of her knowledge she has no known conflict in serving as Panelist in this proceeding. Hon. Carolyn Marks Johnson sits as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically October 5, 2010; the National Arbitration Forum received payment October 5, 2010.
On October 5, 2010, FABULOUS.COM PTY LTD. confirmed by e-mail to the National Arbitration Forum that the <theknott.com> and <thekot.com> domain names are registered with FABULOUS.COM PTY LTD. and that Respondent is the current registrant of the names. FABULOUS.COM PTY LTD. verified that Respondent is bound by the FABULOUS.COM PTY LTD. registration agreement and thereby has agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On October 7, 2010, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 27, 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@theknott.com and postmaster@thekot.com. Also on October 7, 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 November 9, 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Hon. Carolyn Marks Johnson to sit as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration Forum 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 Electronic and Written Notices, as defined in Rule 1 and Rule 2. 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. The domain names that Respondent registered, <theknott.com> and <thekot.com>, are confusingly similar to Complainant’s THE KNOT mark.
2. Respondent has no rights to or legitimate interests in the <theknott.com> and <thekot.com> domain names.
3. Respondent registered and used the <theknott.com> and <thekot.com> domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, The Knot Inc., operates a wedding services business specializing in everything from engagement and budget planning services to honeymoon advice. Complainant registered its THE KNOT mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 2,136,948 issued February 17, 1998).
Respondent registered the <theknott.com> disputed domain name November 1, 2001. Additionally, Respondent registered the <thekot.com> disputed domain name June 27, 2004. The disputed domain names both resolve to websites featuring links to Complainant’s competitors and other non-related sites.
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."
Given 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 will draw such inferences as the Panel 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 Complainant to 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 alleges that it has rights in the THE KNOT mark that is contained in its entirety and in mis-spelled form in the disputed domain names. Previous panels have found registration with a federal trademark authority sufficient to establish rights in a mark. See Paisley Park Enters. v. Lawson, FA 384834 (Nat. Arb. Forum Feb. 1, 2005) (finding that the complainant had established rights in the PAISLEY PARK mark under Policy ¶ 4(a)(i) through registration of the mark with the USPTO); see also Automotive Racing Products, Inc. v. Linecom, FA 836787 (Nat. Arb. Forum Dec. 21, 2006) (finding that the Complainant’s federal trademark registration established its rights in the mark under Policy ¶ 4(a)(i)). Complainant contends Policy ¶ 4(a)(i) is satisfied based on the registration of its THE KNOT mark with the USPTO (e.g., Reg. No. 2,136,948 issued February 17, 1998). Accordingly, the Panel finds that Complainant’s registration of THE KNOT mark establishes rights in the mark pursuant to Policy ¶ 4(a)(i).
Complainant alleges that Respondent’s <theknott.com> and <thekot.com> domain names are confusingly similar to Complainant’s THE KNOT mark. The disputed domain names are both common misspellings of Complainant’s THE KNOT mark. Additionally, Respondent added the generic top-level domain (“gTLD”) “.com” to both of the disputed domain names. Misspellings and the addition of a gTLD fail to distinguish Respondent’s disputed domain names from Complainant’s established THE KNOT mark. See Google, Inc. v. DktBot.org, FA 286993 (Nat. Arb. Forum Aug. 4, 2004) (“The mere addition of a single letter to the complainant’s mark does not remove the respondent’s domain names from the realm of confusing similarity in relation to the complainant’s mark pursuant to Policy ¶ 4(a)(i).”); see also Guinness UDV N. Am., Inc. v. Dallas Internet Servs., D2001-1055 (WIPO Dec. 12, 2001) (finding the <smirnof.com> domain name confusingly similar to the complainant’s SMIRNOFF mark because merely removing the letter “f” from the mark was insignificant); see also Jerry Damson, Inc. v. Tex. Int’l Prop. Assocs., FA 916991 (Nat. Arb. Forum Apr. 10, 2007) (“The mere addition of a generic top-level domain (“gTLD”) “.com” does not serve to adequately distinguish the Domain Name from the mark.”).
Accordingly, the Panel finds that Respondent’s domain names are confusingly similar to Complainant’s THE KNOT mark pursuant to Policy ¶ 4(a)(i).
The Panel finds that Complainant satisfied the elements of ICANN Policy ¶ 4(a)(i).
Complainant contends that Respondent lacks rights and legitimate interests in its <theknott.com> and <thekot.com> domain names. Previous panels have found that once complainant makes a prima facie showing to support its allegations, the burden of proof shifts to Respondent to prove that it does have such rights or legitimate interests, pursuant to Policy ¶ 4(a)(ii). The Panel finds that Complainant made a prima facie showing. Because Respondent failed to make a response, the Panel is permitted to assume that Respondent has no rights to or legitimate interests in the <theknott.com> and <thekot.com> domain names. However, this Panel still examines whether the record shows that Respondent has rights or legitimate interests in the domain names under Policy ¶ 4(c). 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 Vanguard Group, Inc. v. Collazo, FA 349074 (Nat. Arb. Forum Dec. 1, 2004) (finding that because the respondent failed to submit a Response, “Complainant’s submission has gone unopposed and its arguments undisputed. In the absence of a Response, the Panel accepts as true all reasonable allegations . . . unless clearly contradicted by the evidence.”).
Complainant alleges that Respondent is not commonly known by either of Complainant’s registered domain names. Respondent has not alleged any evidence, and the Panel found no evidence in the record, that suggests that Respondent is known by the disputed domain names. The WHOIS information does not contain any information that would support a finding that the registrant of the <theknott.com> and <thekot.com> domain names is similar to either of the disputed domain names. Furthermore, Complainant alleges it has not authorized or licensed Respondent to use its THE KNOT mark.
The Panel finds that Respondent is not commonly known by either domain name under 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 IndyMac Bank F.S.B. v. Eshback, FA 830934 (Nat. Arb. Forum Dec. 7, 2006) (finding that the respondent failed to establish rights and legitimate interests in the <emitmortgage.com> domain name as the respondent was not authorized to register domain names featuring the complainant’s mark and failed to submit evidence of that it is commonly known by the disputed domain name).
The disputed <theknott.com> and <thekot.com> domain names both resolve to websites containing advertisements and links to competing third-party wedding websites. Complainant asserts that Respondent financially benefits from click-through fees associated with the disputed domain names. The Panel finds that Respondent’s use of confusingly similar domain names to operate websites featuring links to Complainant’s competitors in the wedding services and planning industry is not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) and it is not a legitimate, noncommercial or fair use of the domain name under Policy ¶ 4(c)(iii). See 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)); see also Florists’ Transworld Delivery v. Malek, FA 676433 (Nat. Arb. Forum June 6, 2006) (holding that the respondent’s use of the <ftdflowers4less.com> domain name to sell flowers in competition with the complainant did not give rise to any legitimate interest in the domain name).
Complainant alleges that the disputed <theknott.com> and <thekot.com> domain names are evidence of typosquatting. Internet users who mistakenly misspell Complainant’s mark by adding an additional “t” or accidentally removing the “n” letter are redirected to Respondent’s resolving website. Complainant contends this is a common typing mistake and that Respondent’s typosquated versions of Complainant’s mark supply evidence that Respondent lacks rights to or legitimate interests in the domain name pursuant to Policy ¶ 4(a)(ii). 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’”); 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 agrees.
The Panel finds that Respondent has no rights to or legitimate interests in the disputed domain names; Complainant satisfied the elements of ICANN Policy ¶ 4(a)(ii).
Respondent’s <theknott.com> and <thekot.com> domain names both resolve to websites containing links and advertisements to competing third-party wedding websites, in addition to unrelated clothing and travel websites. Complainant alleges that Respondent’s use of the disputed domain names disrupts its wedding business because Internet users intending to find Complainant’s wide array of wedding services may purchase the same or similar services from Complainant’s competitors as a result of Respondent’s use of the disputed domain names. The Panel finds, pursuant to Policy ¶ 4(b)(iii), that Respondent’s use of the <theknott.com> and <thekot.com> domain names disrupts Complainant’s business, which conduct supports findings of bad faith registration and use. 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 Am. Online, Inc. v. Tapia, FA 328159 (Nat. Arb. Forum Dec. 1, 2004) (“Respondent is referring Internet traffic that seeks out the <aol.tv> domain name to a competitor’s news site. The Panel strongly finds that appropriating Complainant’s mark to refer customers seeking Complainant to Complainant’s competitors is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iii).”).
The Panel finds as well that Respondent receives click-through fees from the hyperlinks posted on its resolving websites. Internet users searching for Complainant’s wedding business may find Respondent’s websites because of Respondent’s use of confusingly similar domain names. Complainant contends that these Internet users may then become confused as to Complainant’s affiliation with, and sponsorship of, Respondent’s disputed domain names and the hyperlinks featured on its resolving websites. Complainant alleges that Respondent benefits from the click-through fees that result from the confusion caused by Respondent’s registration of the disputed domain names. The Panel finds that Respondent’s use of the disputed domain names constitutes evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv). See Zee TV USA, Inc. v. Siddiqi, FA 721969 (Nat. Arb. Forum July 18, 2006) (finding that the respondent engaged in bad faith registration and use by using a domain name that was confusingly similar to the complainant’s mark to offer links to third-party websites that offered services similar to those offered by the complainant); see also Asbury Auto. Group, Inc. v. Tex. Int’l Prop. Assocs., FA 958542 (Nat. Arb. Forum May 29, 2007) (finding that the respondent’s use of the disputed domain name to advertise car dealerships that competed with the complainant’s business would likely lead to confusion among Internet users as to the sponsorship or affiliation of those competing dealerships, and was therefore evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv)).
As established previously, Complainant has engaged in typosquatting. The Panel finds that typosquatting is evidence of bad faith registration and use pursuant to Policy ¶ 4(a)(iii). See 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); see also Computerized Sec. Sys., Inc. v. Hu, FA 157321 (Nat. Arb. Forum June 23, 2003) (finding that the respondent engaged in typosquatting, which is evidence of bad faith registration and use under Policy ¶ 4(a)(iii)).
The Panel finds that Respondent registered and used the disputed domain names in bad faith; Complainant satisfied the elements of ICANN 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 <theknott.com> <thekot.com> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Carolyn Marks Johnson, Panelist
Dated: November 16, 2010.
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