salesforce.com, inc. v. Abbas AlHalbi
Claim Number: FA1110001410932
Complainant is salesforce.com, inc. (“Complainant”), represented by Alica Del Valle of salesforce.com, inc., California, USA. Respondent is Abbas AlHalbi (“Respondent”), Syria.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <salesforece.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 October 11, 2011; the National Arbitration Forum received payment on October 12, 2011.
On October 11, 2011, Fabulous.com Pty Ltd confirmed by e-mail to the National Arbitration Forum that the <salesforece.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 disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On October 18, 2011, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 7, 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@salesforece.com. Also on October 18, 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 November 14, 2011, 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 (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 a response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <salesforece.com> domain name is confusingly similar to Complainant’s SALESFORCE.COM mark.
2. Respondent does not have any rights or legitimate interests in the <salesforece.com> domain name.
3. Respondent registered and used the <salesforece.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, salesforce.com, inc., operates in the customer relationship management industry. Complainant owns many trademark registrations for SALESFORCE and SALESFORCE.COM throughout the world, including with the United States Patent and Trademark Office (“USPTO”), China’s State Administration for Industry and Commerce (“SAIC”), and the European Union Office for Harmonization in the Internal Market (“OHIM”).
Respondent, Abbas AlHalbi, registered the <salesforece.com> domain name on October 19, 2005. The disputed domain name resolves to a website filled with promotional links to third-party web pages which purportedly offer Internet users the opportunity to win a $1,000 gift card or prize in exchange for providing personal information.
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.
The Panel finds that Complainant has adequately proven its trademark rights in its SALESFORCE mark for the purposes of Policy ¶ 4(a)(i). In UnitedHealth Group Inc. v. Hassan, FA 947081 (Nat. Arb. Forum May 17, 2007), Hershey Chocolate & Confectionery Corp. v. Yao Renfa, FA 1295942 (Nat. Arb. Forum Jan. 18, 2010), and Goldfish Card Servs. Ltd. v. M Connolly, FA 1000020 (Nat. Arb. Forum July 11, 2007), prior panels found that registration with the USPTO, the SAIC, and OHIM was sufficient to establish rights in a mark. It has also been established, as seen in Koninklijke KPN N.V. v. Telepathy Inc., D2001-0217 (WIPO May 7, 2001), that a registration with a trademark authority is sufficient, even if that registration is not in Respondent’s country.
Respondent’s <salesforece.com> domain name is confusingly similar to Complainant’s SALESFORCE.COM mark as the only difference is the insertion of the letter “e” between the letter “r” and the letter “c.” Past panels have determined that such a minor difference is insufficient to remove the disputed domain name from the realm of confusing similarity. See Valpak Direct Mktg. Sys., Inc. v. Manila Indus., Inc., D2006-0714 (WIPO Aug. 17, 2006) (finding the <vallpak.com> domain name to be confusingly similar to the VALPAK mark under Policy ¶ 4(a)(i)); see also Microsoft Corp. v. Domain Registration Philippines, FA 877979 (Nat. Arb. Forum Feb. 20, 2007) (finding the respondent’s <microssoft.com> domain name to be confusingly similar to the complainant’s MICROSOFT mark because they differ by only one letter, and “such a small alteration is insufficient to avoid a finding of confusing similarity under Policy ¶ 4(a)(i)”). The Panel finds that Respondent’s <salesforece.com> domain name is confusingly similar to Complainant’s SALESFORCE.COM mark pursuant to Policy ¶ 4(a)(i).
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
According to the requirements of Policy ¶ 4(a)(ii), Complainant must first make a prima facie case against Respondent, which then shifts the burden to Respondent to identify and defend any rights and legitimate interests in the disputed domain name. See 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)). The Panel finds that Complainant has adequately presented a prima facie case in these proceedings and that Respondent has failed to respond to the allegations against it. As a result, the Panel may assume the truth of Complainant’s allegations and conclude that Respondent lacks rights and legitimate interests in the disputed domain name. See 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); see also Am. Online, Inc. v. AOL Int’l, D2000-0654 (WIPO Aug. 21, 2000) (finding no rights or legitimate interests where the respondent fails to respond). The Panel elects, however, to consider the evidence presented to determine whether Respondent possesses any rights or legitimate interests in the disputed domain name.
The WHOIS information names the registrant of the <salesforece.com> domain name as “Abbas AlHalbi.” Complainant asserts that Respondent is not affiliated with Complainant in any way, and the “salesforece” designation does not appear anywhere on Respondent’s website as an identifier. Complainant states that Respondent is not licensed to use Complainant’s mark and is not an authorized vendor, supplier, or distributor of Complainant’s goods and services. Based on Complainant’s allegations and the lack of evidence showing any connection between Respondent and the disputed domain name, the Panel determines that Respondent is not commonly known by the <salesforece.com> domain name and consequently lacks rights and legitimate interests under Policy ¶ 4(c)(ii). See 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 that it is commonly known by the disputed domain name); see also Braun Corp. v. Loney, FA 699652 (Nat. Arb. Forum July 7, 206) (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).
Complainant alleges that Respondent’s <salesforece.com> domain name hosts a website advertising links to promotional offers for a $1,000 gift card or prize in exchange for Internet users’ personal information. Complainant argues that using the disputed domain name for the purpose of directing Internet users to other websites via pay-per-click links is not consistent with a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use according to Policy ¶ 4(c)(iii). The Panel agrees. See Hewlett-Packard Co. v. Collazo, FA 144628 (Nat. Arb. Forum Mar. 5, 2003) (holding that the respondent’s use of the <hpcanada.com> domain name to post links to commercial websites and subject Internet users to pop-up advertisements was not a bona fide offering of goods or services or a legitimate noncommercial or fair use of the domain name); see also Bank of Am. Corp. v. Nw. Free Cmty. Access, FA 180704 (Nat. Arb. Forum Sept. 30, 2003) (“Respondent’s demonstrated intent to divert Internet users seeking Complainant’s website to a website of Respondent and for Respondent’s benefit is not a bona fide offering of gods or services under Policy ¶ 4(c)(i) and it is not a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).”).
Complainant contends that Respondent’s <salesforece.com> domain name involves typosquatting, a deliberate misspelling of the SALESFORCE.COM mark in order to take advantage of Internet users’ typographical errors when searching for Complainant. Typosquatting is further evidence that Respondent has no rights or legitimate interests in the disputed domain name. See IndyMac Bank F.S.B. v. Ebeyer, FA 125292 (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 Diners Club Int’l Ltd. v. Domain Admin******It’s all in the name******, FA 156839 (Nat. Arb. Forum June 23, 2003) (holding that the respondent’s <wwwdinersclub.com> domain name, a typosquatted version of the complainant’s DINERS CLUB mark, was evidence in and of itself that the respondent lacks rights or legitimate interests in the disputed domain name vis á vis the complainant).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Respondent uses the <salesforece.com> domain name to redirect Internet users to a website consisting of promotional advertising and pop-ups. The resolving website offers Internet users a prize if he or she clicks on one of the displayed links and enters personal information, such as a name, e-mail address and shipping information. Respondent presumably receives compensation for each consumer diverted to one of the linked websites. Respondent uses Complainant’s mark in the disputed domain name to attract Internet users by creating confusion regarding Respondent’s affiliation with Complainant. The Panel finds these activities demonstrate bad faith registration and use pursuant to Policy ¶ 4(b)(iv). See Allianz of Am. Corp. v. Bond, FA 680624 (Nat. Arb. Forum June 2, 2006) (finding bad faith registration and use under Policy ¶ 4(b)(iv) where the respondent was diverting Internet users searching for the complainant to its own website and likely profiting); see also 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).
The Panel finds that typosquatting is further evidence of bad faith registration and use under Policy ¶ 4(a)(iii). See Canadian Tire Corp. v. domain adm’r no.valid.email@worldnic.net 1111111111, D2003-0232 (WIPO May 22, 2003) (finding the respondent registered and used the domain name in bad faith because the respondent “created ‘a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the Respondent’s website or location’ . . . through Respondent’s persistent practice of ‘typosquatting’”); 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.”).
Complainant also asserts that, due to the considerable global recognition its mark has acquired and its registration of the mark with many trademark authorities, Respondent had constructive and/or actual knowledge of Complainant’s rights in the SALESFORCE.COM mark at the time it registered the disputed domain name. Panels have previously concluded that constructive knowledge is not sufficient by itself to support a finding of bad faith. See Deep Foods, Inc. v. Jamruke, LLC, FA 648190 (Nat. Arb. Forum Apr. 10, 2006) (stating that while mere constructive knowledge is insufficient to support a finding of bad faith, where the circumstances indicate that the respondent had actual knowledge of the complainant’s mark when it registered the domain name, panels can find bad faith). The Panel determines, however, given the similarity between Complainant’s mark and the disputed domain name, that Respondent had actual knowledge of the mark when it registered the <salesforece.com> domain, which is a further indication of bad faith registration under Policy ¶ 4(a)(iii). See InfoSpace, Inc. v. Greiner, FA 227653 (Nat. Arb. Forum Mar. 8, 2004) (“Respondent’s domain name is a simple and popular variation of a trademark commonly used by typosquatters – the addition of the “www” prefix to a known trademark, in this case the DOGPILE mark. Such a domain name evidences actual knowledge of the underlying mark prior to the registration of the domain name, and as Respondent failed to submit any evidence to counter this inferrence [sic], Respondent’s actions evidence bad faith registration of the disputed domain name.”).
The Panel finds that 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 <salesforece.com> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: November 21, 2011
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