Xcentric Ventures, LLC d/b/a www.RipoffReport.com v. A-One Innovation Technologies Private Limited
Claim Number: FA1101001367044
Complainant is Xcentric Ventures, LLC d/b/a www.RipoffReport.com (“Complainant”), represented by David Gingras, Arizona, USA . Respondent is A-One Innovation Technologies Private Limited (“Respondent”), India.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <ripoffreport.cc>, registered with Godaddy.com.
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.
Honorable Paul A. Dorf (Ret.)as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on January 11, 2011; the National Arbitration Forum received payment on January 11, 2011«DateHardCopy».
On January 13, 2011, Godaddy.com confirmed by e-mail to the National Arbitration Forum that the <ripoffreport.cc> domain name is registered with Godaddy.com and that Respondent is the current registrant of the name. Godaddy.com has verified that Respondent is bound by the Godaddy.com 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 January 26, 2011, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 15, 2011 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@ripoffreport.cc. Also on January 26, 2011, 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 February 17, 2011, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Honorable Paul A. Dorf (Ret.) as Panelist.
Respondent sent two emails to National Arbitration Forrum, which were reviewed by 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 <ripoffreport.cc> domain name is identical to Complainant’s RIP-OFF REPORT mark.
2. Respondent does not have any rights or legitimate interests in the <ripoffreport.cc> domain name.
3. Respondent registered and used the <ripoffreport.cc> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant uses the RIP-OFF REPORT mark in connection with its consumer complaint reporting website. Complainant holds a trademark registration with the United States Patent and Trademark Office (“USPTO”) for the RIP-OFF REPORT mark (e.g., Reg. No. 2,958,949 issued July 7, 2005).
Respondent registered the <ripoffreport.cc> domain name on June 18, 2009. The disputed domain name resolves to a website that provides information and services that compete with Complainant’s business. The resolving website also attempts to imitate Complainant’s official site.
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 RIP-OFF REPORT mark through its registration of the mark with the USPTO (e.g., Reg. No. 2,958,949 issued July 7, 2005). The Panel finds this trademark registration sufficiently proves Complainant’s rights in the RIP-OFF REPORT mark under 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 further finds that it is irrelevant whether Complainant holds trademark registrations with the trademark authority in the country in which Respondent resides. See Williams-Sonoma, Inc. v. Fees, FA 937704 (Nat. Arb. Forum Apr. 25, 2007) (finding that it is irrelevant whether the complainant has registered its trademark in the country of the respondent’s residence).
Complainant argues that Respondent’s <ripoffreport.cc> domain name is identical to its RIP-OFF REPORT mark. Respondent fully incorporates Complainant’s mark in the disputed domain name, merely omitting the hyphen and the space between the terms in the mark. Respondent also attaches the country-code top-level domain (“ccTLD”) “.cc” to Complainant’s mark in the disputed domain name. The Panel finds that the removal of spaces and a hyphen and the addition of a ccTLD do not distinguish Respondent’s domain name from Complainant’s mark. See Croatia Airlines v. Kwen Kijong, AF-0302 (eResolution Sept. 25, 2000) (finding that the domain name <croatiaairlines.com> is identical to the complainant's CROATIA AIRLINES trademark); see also Chernow Commc’ns, Inc. v. Kimball, D2000-0119 (WIPO May 18, 2000) (holding “that the use or absence of punctuation marks, such as hyphens, does not alter the fact that a name is identical to a mark"); see also Juicy Couture, Inc. v Chen Hao, FA 1349605 (Nat. Arb. Forum Nov. 4, 2010) (finding the addition of a ccTLD to the <juicycouture.cc> domain name did not distinguish the respondent’s domain name from the complainant’s JUICY COUTURE mark). Therefore, the Panel holds that Respondent’s <ripoffreport.cc> domain name is identical to its RIP-OFF REPORT mark under Policy ¶ 4(a)(i).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(i).
Complainant must first make a prima facie case showing Respondent lacks rights and legitimate interests in the <ripoffreport.cc> domain name under Policy ¶ 4(a)(ii). The burden then shifts to Respondent to prove it has rights or legitimate interests in the disputed domain name. The Panel may view Respondent’s failure to submit a Response as evidence that Respondent lacks rights and legitimate interests. See Intel Corp. v. Macare, FA 660685 (Nat. Arb. Forum Apr. 26, 2006) (finding the “complainant must first make a prima facie case that [the] respondent lacks rights and legitimate interests in the disputed domain names under Policy ¶ 4(a)(ii), and then the burden shifts to [the] respondent to show it does have rights or legitimate interests.”); see also 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.”). Despite Respondent’s failure to respond, the Panel will evaluate the record to determine whether Respondent has rights or legitimate interests in the disputed domain name under Policy ¶ 4(c).
Complainant asserts it has never authorized Respondent to use its RIP-OFF REPORT mark. Furthermore, the WHOIS information lists “A-One Innovation Technologies Private Limited” as the registrant of the disputed domain name, which the Panel finds is not similar to the <ripoffreport.cc> domain name. Without evidence to the contrary, the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(a)(i). 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 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).
Complainant alleges the <ripoffreport.cc> domain name resolves to a website that provides consumer reports that compete with Complainant’s consumer complaint reporting website. Based on the evidence in the record, the Panel finds that Respondent uses the disputed domain name to offer information and services that compete with Complainant’s business. Therefore, the Panel finds that Respondent does not use the disputed domain name to make 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 Am. Int’l Group, Inc. v. Benjamin, FA 944242 (Nat. Arb. Forum May 11, 2007) (Panelist Tyrus R. Atkinson, Jr., dissenting) (finding that the respondent’s use of a confusingly similar domain name to advertise real estate services which competed with the complainant’s business did 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 Coryn Group, Inc. v. Media Insight, FA 198959 (Nat. Arb. Forum Dec. 5, 2003) (finding that the respondent was not using the domain names for a bona fide offering of goods or services nor a legitimate noncommercial or fair use because the respondent used the names to divert Internet users to a website that offered services that competed with those offered by the complainant under its marks).
Complainant argues that Respondent uses the <ripoffreport.cc> domain name to impersonate Complainant’s official website. Complainant claims the website resolving from the disputed domain name includes a header that contains the term “RipoffReprt,” [sic] a misspelled version of its RIP-OFF REPORT mark. In addition, Complainant provides evidence that Respondent’s website previously displayed a footer with the text, “Ripoff Report | consumer Report | Submit Ripoff Report | Scam Reports.” The Panel finds that Respondent uses the disputed domain name in an attempt to pass itself off as Complainant. Therefore, the Panel finds this behavior provides additional evidence that Respondent lacks rights and legitimate interests in the <ripoffreport.cc> 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)).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant contends the <ripoffreport.cc> domain name redirects Internet users seeking Complainant’s information and services to Respondent’s competing website. The Panel agrees. Therefore, the Panel finds that Respondent’s domain name disrupts Complainant’s business, which amounts to registration and use in bad faith under 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 Surface Prot. Indus., Inc. v. Webposters, D2000-1613 (WIPO Feb. 5, 2001) (finding that, given the competitive relationship between the complainant and the respondent, the respondent likely registered the contested domain name with the intent to disrupt the complainant's business and create user confusion).
The Panel presumes that Respondent commercially benefits from its competing use in some way. As the disputed domain name is identical to Complainant’s mark, the Panel finds that Respondent is attempting to commercially benefit by creating confusion as to Complainant’s affiliation with the disputed domain name and resolving website. Therefore, the Panel concludes that Respondent’s use of the <ripoffreport.cc> domain name constitutes bad faith registration and use under Policy ¶ 4(b)(iv). See Velv, LLC v. AAE, FA 677922 (Nat. Arb. Forum May 25, 2006) (finding that the respondent’s use of the <arizonashuttle.net> domain name, which contained the complainant’s ARIZONA SHUTTLE mark, to attract Internet traffic to the respondent’s website offering competing travel services violated Policy ¶ 4(b)(iv)); see also Dell Inc. v. Innervision Web Solutions, FA 445601 (Nat. Arb. Forum May 23, 2005) (finding evidence of bad faith under Policy ¶ 4(b)(iv) where the respondent was using the <dellcomputerssuck.com> domain name to divert Internet users to respondent’s website offering competing computer products and services).
In addition, the Panel finds that Respondent’s attempt to pass itself off as Complainant provides further evidence that Respondent has engaged in registration and use in bad faith under Policy ¶ 4(a)(iii). See 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); see also 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.”).
The Panel finds that 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 <ripoffreport.cc> domain name be TRANSFERRED from Respondent to Complainant.
Honorable Paul A. Dorf (Ret.), Panelist
Dated: March 3, 2011
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