Match.com, L.L.C. v. Hemang Infrasructure Private Limited
Claim Number: FA1112001420631
Complainant is Match.com, L.L.C. (“Complainant”), represented by CitizenHawk, Inc., California, USA. Respondent is Hemang Infrasructure Private Limited (“Respondent”), India.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <mstch.com>, registered with Directi Internet Solutions Pvt. Ltd. d/b/a Publicdomainregistry.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.
Karl V. Fink (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on December 19, 2011; the National Arbitration Forum received payment on December 20, 2011.
On December 21, 2011, Directi Internet Solutions Pvt. Ltd. d/b/a Publicdomainregistry.com confirmed by e-mail to the National Arbitration Forum that the <mstch.com> domain name is registered with Directi Internet Solutions Pvt. Ltd. d/b/a Publicdomainregistry.com and that Respondent is the current registrant of the name. Directi Internet Solutions Pvt. Ltd. d/b/a Publicdomainregistry.com has verified that Respondent is bound by the Directi Internet Solutions Pvt. Ltd. d/b/a Publicdomainregistry.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 18, 2012, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 7, 2012 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@mstch.com. Also on January 18, 2012, the Written Notice of the Complaint, notifying Respondent of the e-mail 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 9, 2012, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Karl V. Fink (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 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 <mstch.com> domain name is confusingly similar to Complainant’s MATCH.COM mark.
2. Respondent does not have any rights or legitimate interests in the <mstch.com> domain name.
3. Respondent registered and used the <mstch.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Match.com, L.L.C., holds a trademark registration with the United States Patent and Trademark Office (“USPTO”) for its MATCH.COM mark (Reg. No. 2,088,545 registered August 19, 1997). Complainant uses its MATCH.COM in connection with its online dating services.
Respondent, Hemang Infrasructure Private Limited, registered the <mstch.com> domain name on February 5, 2002. The disputed domain name resolves to a website featuring competing hyperlinks.
Respondent has been a respondent in previous UDRP proceedings in which the panels ordered the transfer of the domain names to the respective complainant. See Cricket Commc’n v. Hemang Infrastructure Private Ltd., FA 1324431 (Nat. Arb. Forum June 16, 2010); see also AOL Inc. v. Hemang Infrastructure Private Ltd., FA 1358011 (Nat. Arb. Forum December 20, 2010); see also Vanguard Trademark Holdings USA LLC v. Hemang Infrastructure Private Ltd., FA 1404894 (Nat. Arb. Forum Oct. 13, 2011).
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.
As Complainant owns a trademark registration with the USPTO for its MATCH.COM mark (Reg. No. 2,088,545 registered August 19, 1997), the Panel concludes that Complainant established its rights in the MATCH.COM mark 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 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 Koninklijke KPN N.V. v. Telepathy Inc., D2001-0217 (WIPO May 7, 2001) (finding that the Policy does not require that the mark be registered in the country in which the respondent operates; therefore it is sufficient that the complainant can demonstrate a mark in some jurisdiction).
Respondent’s <mstch.com> domain name differs from Complainant’s MATCH.COM mark by one letter: Respondent replaces the letter “a” with the letter “s.” The letter “a” and the letter “s” are adjacent to each other on the QWERTY keyboard. As the Panel determines that replacing one letter with another does not remove a disputed domain name from the realm of confusing similarity, the Panel determines that Respondent’s <mstch.com> domain name is confusingly similar to Complainant’s MATCH.COM mark pursuant to Policy ¶ 4(a)(i). 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 Neuberger Berman Inc. v. Jacobsen, D2000-0323 (WIPO June 12, 2000) (finding that the respondent’s <newbergerberman.com> domain name was confusingly similar to the complainant’s NEUBERGER BERMAN mark despite the slight difference in spelling).
The Panel finds Complainant satisfies Policy ¶ 4(a)(i).
Complainant alleges that Respondent does not have any rights or legitimate interests in the <mstch.com> domain name. The burden shifts to Respondent to prove it does have rights or legitimate interests when Complainant makes a prima facie case in support of its allegations under Policy ¶ 4(a)(ii). 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.”). The Panel finds Complainant made a sufficient prima facie case. Respondent’s failure to respond to the Complaint allows the Panel to infer that Respondent does not have rights or legitimate interests in the <mstch.com> domain name. See Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO Dec. 21, 2000) (finding that failing to respond allows a presumption that the complainant’s allegations are true unless clearly contradicted by the evidence). However, the Panel will examine the record to determine whether Respondent has rights or legitimate interests in the disputed domain name under Policy ¶ 4(c).
Complainant claims Respondent is not sponsored by, or legitimately affiliated with, Complainant. Complainant also never gave Respondent permission to use Complainant’s MATCH.COM mark. The WHOIS information lists “Hemang Infrasructure Private Limited” as the registrant of the <mstch.com> domain name. As Respondent does not contradict any of Complainant’s contentions or the evidence in the record, the Panel finds that Respondent is not commonly known by the <mstch.com> domain name for the purposes of 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 of that it is commonly known by the disputed domain name); see also 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).
Respondent’s <mstch.com> domain name resolves to a website that hosts competing hyperlinks. The Panel finds that such a use does not constitute a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use of the <mstch.com> domain name under Policy ¶ 4(c)(iii). See Meyerson v. Speedy Web, FA 960409 (Nat. Arb. Forum May 25, 2007) (finding that where a respondent has failed to offer any goods or services on its website other than links to a variety of third-party websites, it was not using a domain name in connection with a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii)); see also Skyhawke Techns., LLC v. Tidewinds Group, Inc., FA 949608 (Nat. Arb. Forum May 18, 2007) (“Respondent is using the <skycaddy.com> domain name to display a list of hyperlinks, some of which advertise Complainant and its competitors’ products. The Panel finds that this use of the disputed domain name does 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).”).
Respondent attempts to take advantage of Internet users that mistakenly type the letter “s” instead of the letter “a” when attempting to reach Complainant on the Internet. The Panel determines that Respondent is guilty of typosquatting in regards to the <mstch.com> domain name. Therefore, the Panel concludes that Respondent lacks rights and legitimate interests in the <mstch.com> domain name 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 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’”).
The Panel finds Complainant satisfies Policy ¶ 4(a)(ii).
Respondent has been a respondent in previous UDRP proceedings in which the panels ordered the transfer of the domain names to the respective complainants. See Cricket Commc’n v. Hemang Infrastructure Private Ltd., FA 1324431 (Nat. Arb. Forum June 16, 2010); see also AOL Inc. v. Hemang Infrastructure Private Ltd., FA 1358011 (Nat. Arb. Forum December 20, 2010); see also Vanguard Trademark Holdings USA LLC v. Hemang Infrastructure Private Ltd., FA 1404894 (Nat. Arb. Forum Oct. 13, 2011). Based on these previous UDRP proceedings, the Panel finds that Respondent registered and uses the <mstch.com> domain name as part of a pattern of bad faith registration and use pursuant to Policy ¶ 4(a)(i). See Westcoast Contempo Fashions Ltd. v. Manila Indus., Inc., FA 814312 (Nat. Arb. Forum Nov. 29, 2006) (finding bad faith registration and use pursuant to Policy ¶ 4(b)(ii) where the respondent had been subject to numerous UDRP proceedings where panels ordered the transfer of disputed domain names containing the trademarks of the complainants); see also Nat’l Abortion Fed’n v. Dom 4 Sale, Inc., FA 170643 (Nat. Arb. Forum Sept. 9, 2003) (finding bad faith pursuant to Policy ¶ 4(b)(ii) because the domain name prevented the complainant from reflecting its mark in a domain name and the respondent had several adverse decisions against it in previous UDRP proceedings, which established a pattern of cybersquatting).
As Respondent’s <mstch.com> domain name resolves to a website that hosts competing hyperlinks, the Panel presumes that Complainant’s business is disrupted as Internet users may be diverted to Complainant’s competitors. Consequently, the Panel holds that Respondent registered and uses the <mstch.com> domain name in bad faith under 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 Persohn v. Lim, FA 874447 (Nat. Arb. Forum Feb. 19, 2007) (finding bad faith registration and use pursuant to Policy ¶ 4(b)(iii) where a respondent used the disputed domain name to operate a commercial search engine with links to the complainant’s competitors).
The Panel infers that Respondent commercially benefits from the competing hyperlinks by receiving click-through fees. The Panel determines that Respondent is attempting to create confusion as to Complainant’s affiliation with the <mstch.com> domain name. Thus, the Panel holds that Respondent registered and uses the <mstch.com> domain name in bad faith pursuant to Policy ¶ 4(b)(iv). See Associated Newspapers Ltd. v. Domain Manager, FA 201976 (Nat. Arb. Forum Nov. 19, 2003) (“Respondent's prior use of the <mailonsunday.com> domain name is evidence of bad faith pursuant to Policy ¶ 4(b)(iv) because the domain name provided links to Complainant's competitors and Respondent presumably commercially benefited from the misleading domain name by receiving ‘click-through-fees.’”); see also Univ. of Houston Sys. v. Salvia Corp., FA 637920 (Nat. Arb. Forum Mar. 21, 2006) (“Respondent is using the disputed domain name to operate a website which features links to competing and non-competing commercial websites from which Respondent presumably receives referral fees. Such use for Respondent’s own commercial gain is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv).”).
As the Panel previously determined that Respondent is guilty of typosquatting, the Panel concludes that Respondent registered and uses the <mstch.com> domain name in bad faith for the purposes of 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 Complainant satisfies 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 <mstch.com> domain name be TRANSFERRED from Respondent to Complainant.
Karl V. Fink (Ret.), Panelist
Dated: February 13, 2012
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