Fandango, Inc. v. Tris Garboski
Claim Number: FA1359381
Complainant is Fandango, Inc. (“Complainant”), represented by CitizenHawk, Inc., California, USA. Respondent is Tris Garboski (“Respondent”), Pennsylvania, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <fandango-bucks.com>, registered with Dynadot, LLC.
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.
Tyrus R. Atkinson, Jr., as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on November 18, 2010; the National Arbitration Forum received payment on November 18, 2010.
On November 23, 2010, Dynadot, LLC confirmed by e-mail to the National Arbitration Forum that the <fandango-bucks.com> domain name is registered with Dynadot, LLC and that Respondent is the current registrant of the name. Dynadot, LLC has verified that Respondent is bound by the Dynadot, LLC registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On November 24, 2010, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 14, 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@fandango-bucks.com. Also on November 24, 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 December 17, 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Tyrus R. Atkinson, Jr., 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 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 name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <fandango-bucks.com> domain name is identical to Complainant’s FANDAGO BUCKS mark.
2. Respondent does not have any rights or legitimate interests in the <fandango-bucks.com> domain name.
3. Respondent registered and used the <fandango-bucks.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Fandango, Inc., provides theater and showtime information and sells movie tickets over the Internet and by telephone. Its services entertain and inform consumers with exclusive film clips, trailers, celebrity interviews, fan reviews and news. Complainant owns a trademark registration for the FANDAGO BUCKS mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 3,094,600 issued May 23, 2006).
Respondent, Tris Garboski, registered the <fandago-bucks.com> domain name on January 6, 2010. Respondent’s disputed domain name resolves to a website that makes use of Complainant’s FANDANGO mark and attempts to pass itself off as Complainant by using a similar color scheme and layout and by purportedly offering Fandango Bucks for sale.
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 owns a trademark registration for the FANDAGO BUCKS mark with the USPTO (Reg. No. 3,094,600 issued May 23, 2006). The Panel finds that a USPTO trademark registration is conclusive proof of Complainant’s rights in the FANDANGO BUCKS mark for the purposes of Policy ¶ 4(a)(i). See Trip Network Inc. v. Alviera, FA 914943 (Nat. Arb. Forum Mar. 27, 2007) (finding that the complainant’s federal trademark registrations for the CHEAPTICKETS and CHEAPTICKETS.COM marks were adequate to establish its rights in the mark pursuant to Policy ¶ 4(a)(i)); see also Morgan Stanley v. Fitz-James, FA 571918 (Nat. Arb. Forum Nov. 29, 2005) (finding from a preponderance of the evidence that the complainant had registered its mark with national trademark authorities, the Panel determined that “such registrations present a prima facie case of Complainant’s rights in the mark for purposes of Policy ¶ 4(a)(i).”).
Complainant argues that Respondent’s <fandango-bucks.com> domain name is identical to Complainant’s FANDANGO BUCKS mark because the domain name merely replaces the space in Complainant’s mark with a hyphen and adds the generic top-level domain name (“gTLD”). The Panel finds that replacing a space with a hyphen has no effect on differentiating the disputed domain name from Complainant’s mark. See Pirelli & C. S.p.A. v. Tabriz, FA 921798 (Apr. 12, 2007) (finding that the addition of a hyphen between terms of a registered mark did not differentiate the <p-zero.org> domain name from the P ZERO mark under Policy ¶ 4(a)(i)); see also Nintendo of Am. Inc. v. This Domain Is For Sale, D2000-1197 (WIPO Nov. 1, 2000) (finding <game-boy.com> identical and confusingly similar the complainant’s GAME BOY mark, even though the domain name is a combination of two descriptive words divided by a hyphen). The Panel also finds that the addition of a gTLD does not prevent a finding of identicality. See Pomellato S.p.A v. Tonetti, D2000-0493 (WIPO July 7, 2000) (finding <pomellato.com> identical to the complainant’s mark because the generic top-level domain (gTLD) “.com” after the name POMELLATO is not relevant). Thus, the Panel finds that Respondent’s <fandango-bucks.com> domain name is identical to Complainant’s FANDANGO BUCKS marks pursuant to Policy ¶ 4(a)(i).
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
In arguing that Respondent does not possess rights and legitimate interests in the disputed domain name, Policy ¶ 4(a)(ii) requires that Complainant put forth a prima facie case against Respondent. In the instant proceeding, the Panel finds that Complainant has satisfied this obligation and thus the burden to show rights and legitimate interests transfers to Respondent. By Respondent’s default, however, the Panel concludes that Respondent lacks rights and legitimate interests. The Panel also concludes that Complainant’s allegations may be taken as true. See Do the Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (“Failure of a respondent to come forward to [contest complainant’s allegations] is tantamount to admitting the truth of complainant’s assertions in this regard.”); see also Bank of Am. Corp. v. McCall, FA 135012 (Nat. Arb. Forum Dec. 31, 2002) (“Respondent's failure to respond not only results in its failure to meet its burden, but also will be viewed as evidence itself that Respondent lacks rights and legitimate interests in the disputed domain name.”). In the interest of making a complete determination, however, the Panel elects to consider the evidence in the record in light of the Policy ¶ 4(c) factors.
Complainant asserts that Respondent is not sponsored by or legitimately affiliated with Complainant in any way. Complainant also alleges that Respondent is not legally or commonly known by the “Fandango-Bucks” name and does not operate a legitimate business or organization under this name. The WHOIS information for the <fandango-bucks.com> domain name identifies the registrant as “Tris Garboski,” which the Panel finds has no association with the disputed domain name. The Panel thus concludes that Respondent is not commonly known by the <fandango-bucks.com> domain name and therefore lacks rights and legitimate interests 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 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).
Complainant alleges that the website resolving from Respondent’s <fandango-bucks.com> domain name displays Complainant’s FANDANGO mark. The resolving website also displays Complainant’s logo, uses a similar color scheme and layout design, and purportedly offers Complainant’s Fandango Bucks product for sale. The Panel finds that this attempt by Respondent to pass itself off as Complainant reveals that Respondent has no rights and interests in the <fandango-bucks.com> domain name under Policy ¶ 4(a)(ii). See Am. Int’l Group, Inc. v. Busby, FA 156251 (Nat. Arb. Forum May 30, 2003) (finding that the respondent attempts to pass itself off as the complainant online, which is blatant unauthorized use of the complainant’s mark and is evidence that the respondent has no rights or legitimate interests in the disputed domain name); see also Dream Horse Classifieds v. Mosley, FA 381256 (Nat. Arb. Forum Feb. 8, 2005) (finding the respondent’s attempt to pass itself off as the complainant by implementing a color scheme identical to the complainant’s was evidence that respondent lacks rights and legitimate interests in the disputed domain name pursuant to Policy ¶ 4(a)(ii)).
Complainant contends that Respondent’s substitution of the hyphen in the <fandango-bucks.com> domain name for the space in Complainant’s FANDANGO BUCKS mark is an example of typosquatting because Respondent is trying to capitalize on a common misspelling of Complainant’s mark. The Panel finds that such behavior indicates that Respondent does not have rights and legitimate interests in the <fandango-bucks.com> pursuant to 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 Policy ¶ 4(a)(ii) has been satisfied.
When conducting a Policy ¶ 4(a)(iii) analysis, the Panel finds that it may consider the totality of the circumstances without being limited to the enumerated factors in Policy ¶ 4(b). See Do the Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (“[T]he examples of [bad faith] in Paragraph 4(b) are intended to be illustrative, rather than exclusive.”); see also Cellular One Group v. Brien, D2000-0028 (WIPO Mar. 10, 2000) (finding that the criteria specified in 4(b) of the Policy is not an exhaustive list of bad faith evidence).
Complainant alleges that Respondent’s <fandango-bucks.com> domain name resolves to a website that prominently displays Complainant’s FANDANGO mark. The resolving website also displays Complainant’s logo, uses a similar color scheme and design layout, and purportedly offers Complainant’s Fandango Bucks products for sale. The Panel thus finds that Respondent is attempting to pass itself off as Complainant, which is evidence of bad faith registration and use under Policy ¶ 4(a)(iii). See Target Brands, Inc. v. JK Internet Servs., FA 349108 (Nat. Arb. Forum Dec. 14, 2004) (finding bad faith because the respondent not only registered Complainant’s famous TARGET mark, but “reproduced . . . Complainant’s TARGET mark . . . [and] added Complainant’s distinctive red bull’s eye [at the domain name] . . . to a point of being indistinguishable from the original.”); see also Am. Online, Inc. v. Miles, FA 105890 (Nat. Arb. Forum May 31, 2002) (“Respondent is using the domain name at issue to resolve to a website at which Complainant’s trademarks and logos are prominently displayed. Respondent has done this with full knowledge of Complainant’s business and trademarks. The Panel finds that this conduct is that which is prohibited by Paragraph 4(b)(iv) of the Policy.”).
The Panel has previously found that Respondent’s <fandango-bucks.com> is an example of typosquatting. The Panel concludes that typosquatting is evidence in and of itself of bad faith registration and use under 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 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 Policy ¶ 4(a)(iii) has been 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 <fandango-bucks.com> domain name be TRANSFERRED from Respondent to Complainant.
Tyrus R. Atkinson, Jr., Panelist
Dated: December 28, 2010
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