TMP Worldwide
Inc. v. Register411.com
Claim
Number: FA0301000142321
PARTIES
Complainant is TMP Worldwide Inc., Maynard, MA (“Complainant”) represented by Andrew Baum, of Darby &
Darby PC. Respondent is
Register411.com, a/k/a Simo Elbaz, Miami, FL (“Respondent”).
REGISTRAR AND
DISPUTED DOMAIN NAME
The domain name at issue is <monstremoving.com>, registered with Namescout.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.
Sandra Franklin as Panelist.
Complainant submitted a Complaint to the National
Arbitration Forum (the "Forum") electronically on January 20, 2003;
the Forum received a hard copy of the Complaint on January 21, 2003.
On January 22, 2003, Namescout.Com confirmed by e-mail
to the Forum that the domain name <monstremoving.com>
is registered with Namescout.Com and that Respondent is the current registrant
of the name. Namescout.Com has verified that Respondent is bound by the
Namescout.Com registration agreement and has thereby agreed to resolve
domain-name disputes brought by third parties in accordance with ICANN's
Uniform Domain Name Dispute Resolution Policy (the "Policy").
On January 23, 2003, a Notification of Complaint and
Commencement of Administrative Proceeding (the "Commencement
Notification"), setting a deadline of February 12, 2003 by which
Respondent could file a Response to the Complaint, was transmitted to
Respondent via e-mail, post and fax, to all entities and persons listed on
Respondent's registration as technical, administrative and billing contacts,
and to postmaster@monstremoving.com by e-mail.
Having received no Response from Respondent, using the
same contact details and methods as were used for the Commencement
Notification, the Forum transmitted to the parties a Notification of Respondent
Default.
On February 19, 2003, pursuant to Complainant's
request to have the dispute decided by a single-member Panel, the Forum
appointed Sandra Franklin as Panelist.
Having reviewed the communications records, the
Administrative Panel (the "Panel") finds that the 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." Therefore, the Panel
may issue its decision based on the documents submitted and in accordance with
the ICANN Policy, ICANN Rules, the 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 <monstremoving.com>
domain name is confusingly similar to Complainant’s MONSTER MOVING mark.
2.
Respondent does not have any rights or legitimate interests in the <monstremoving.com> domain name.
3.
Respondent registered and used the <monstremoving.com>
domain name in bad faith.
B. Respondent
failed to submit a Response in this proceeding.
Complainant holds a trademark registration with the United States Patent
and Trademark Office for MONSTER MOVING (Reg. No. 2,648,039, registered
November 12, 2002) related to personal moving services. Complainant maintains a
website at <monstermoving.com> where Internet users can obtain
information regarding their move.
Respondent registered the disputed domain name on October 7, 2002. The
website at <monstremoving.com>
is very similar to the website maintained by Complainant. Respondent’s website
offers personal moving services similar to those offered by Complainant.
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.
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.
Identical and/or
Confusingly Similar
Complainant has established that it has rights in the MONSTER MOVING mark
through registration with the USPTO and continuous use in commerce since 2000.
Respondent’s <monstremoving.com>
domain name is confusingly similar to Complainant’s mark because the disputed
domain name incorporates the entire mark and merely transposes the letters “e”
and “r.” The transposition of letters does not differentiate the domain name
enough to survive a “confusingly similar” challenge. See Google Inc. v. Jon G., FA 106084 (Nat. Arb. Forum Apr. 26,
2002) (finding <googel.com> to be confusingly similar to Complainant’s
GOOGLE mark and noting that “[t]he transposition of two letters does not create
a distinct mark capable of overcoming a claim of confusing similarity, as the
result reflects a very probable typographical error”); see also Geocities v. Geociites.com, D2000-0326 (WIPO June 19,
2000) (finding that the domain name <geociites.com> is confusingly
similar to Complainant’s GEOCITIES mark).
Accordingly, the Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Rights or
Legitimate Interests
Respondent has not submitted a Response to the Complaint. Therefore, the
Panel may make reasonable inferences in favor of Complainant and accept
Complainant’s allegations as true. See
Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat.
Arb. Forum July 31, 2000) (holding that Respondent’s failure to respond allows
all reasonable inferences of fact in the allegations of Complainant 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”).
Furthermore, the Panel may presume that Respondent lacks any rights or
legitimate interests in the disputed domain name because of Respondent’s
failure to respond to the Complaint. See
Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (finding
that once Complainant asserts that Respondent has no rights or legitimate
interests with respect to the domain, the burden shifts to Respondent to
provide credible evidence that substantiates its claim of rights and legitimate
interests in the domain name); see also
Pavillion Agency, Inc. v. Greenhouse Agency Ltd., D2000-1221 (WIPO Dec. 4,
2000) (finding that Respondents’ failure to respond can be construed as an
admission that they have no legitimate interest in the domain names).
Respondent uses the <monstremoving.com>
domain name to provide nearly identical services as those provided by
Complainant. The use of a confusingly similar domain name to peddle nearly
identical services is neither a use in connection with a bona fide offering of
goods or services pursuant to Policy ¶ 4(c)(i), nor a legitimate noncommercial
or fair use pursuant to Policy ¶ 4(c)(iii). See
Chip Merch., Inc. v. Blue Star Elec., D2000-0474 (WIPO Aug. 21, 2000)
(finding that the disputed domain names were confusingly similar to
Complainant’s mark and that Respondent’s use of the domain names to sell
competing goods was illegitimate and not a bona fide offering of goods); see also Ticketmaster Corp. v. DiscoverNet,
Inc., D2001-0252 (WIPO Apr. 9, 2001) (finding no rights or legitimate
interests where Respondent generated commercial gain by intentionally and
misleadingly diverting users away from Complainant's site to a competing
website).
Respondent has not come forward with any evidence and no circumstances in
the record suggest that Respondent is commonly known by MONSTRE MOVING or <monstremoving.com>. Therefore,
Respondent has failed to establish that it has rights or legitimate interests
in the disputed domain name pursuant to Policy ¶ 4(c)(ii). See Broadcom Corp. v. Intellifone Corp., FA 96356 (Nat. Arb. Forum
Feb. 5, 2001) (finding no rights or legitimate interests because Respondent is
not commonly known by the disputed domain name or using the domain name in
connection with a legitimate or fair use); see
also Hartford Fire Ins. Co. v. Webdeal.com, Inc., FA 95162 (Nat. Arb. Forum
Aug. 29, 2000) (finding that Respondent has no rights or legitimate interests
in domain names because it is not commonly known by Complainant’s marks and
Respondent has not used the domain names in connection with a bona fide
offering of goods and services or for a legitimate noncommercial or fair use).
Accordingly, the Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Registration and
Use in Bad Faith
Respondent has created a nearly identical website to Complainant’s website
at the <monstremoving.com>
domain name. This similarity could not be attributed to mere coincidence.
Respondent is clearly typosquatting, which is evidence of bad faith pursuant to
Policy ¶ 4(b)(iv). See e.g.
Hewlett-Packard Co. v. Zuccarini, FA 94454 (Nat. Arb. Forum May 30, 2000)
(awarding <hewlitpackard.com> a misspelling of HEWLETT-PACKARD to
Complainant); see also Bama Rags, Inc. v. Zuccarini, FA 94380
(Nat. Arb. Forum May 8, 2000) (awarding <davemathewsband.com> and
<davemattewsband.com>, common misspellings of DAVE MATTHEWS BAND to
Complainant).
Moreover, Respondent is providing nearly identical services as Complainant
through the disputed domain name. Respondent and Complainant are in direct
competition in offering personal moving services. The registration of a domain
name primarily for the purpose of disrupting the business of a competitor is
evidence of bad faith pursuant to Policy ¶ 4(b)(iii). See S. Exposure v. S. Exposure, Inc., FA 94864 (Nat. Arb. Forum
July 18, 2000) (finding Respondent acted in bad faith by attracting Internet
users to a website that competes with Complainant’s business); see also Lubbock Radio Paging v. Venture
Tele-Messaging, FA 96102 (Nat. Arb. Forum Dec. 23, 2000) (concluding that
domain names were registered and used in bad faith where Respondent and
Complainant were in the same line of business in the same market area).
Accordingly, the Panel finds that Policy ¶ 4(a)(iii) has been satisfied.
Having established all three elements required under ICANN Policy, the
Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <monstremoving.com>
domain name be TRANSFERRED from
Respondent to Complainant.
Sandra Franklin,
Panelist
Dated: February 26, 2003
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