Intelius, Inc. v. Above.com Domain Privacy
Claim Number: FA1202001431039
Complainant is Intelius, Inc. (“Complainant”), represented by CitizenHawk, Inc., California, USA. Respondent is Above.com Domain Privacy (“Respondent”), Australia.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <inteliues.com>, <lintelius.com>, <iuntelius.com>, <intrelius.com>, <inteslius.com>, <inteliusd.com>, <inteliue.com>, <ilntelius.com>, <intyelius.com>, <intelkus.com>, <intelkius.com>, <inteliusw.com>, <intelieus.com>, <inetelius.com>, <intlelius.com>, <inteiius.com>, <inteilius.com>, <inteloius.com>, <inteliuys.com>, <iontelius.com>, and <inteliuf.com> registered with Above.Com Pty Ltd.
The undersigned certifies that he has acted independently and impartially, and, to the best of his knowledge, has no conflict of interests in serving as Panelist in this proceeding.
Terry F. Peppard as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on February 23, 2012; the National Arbitration Forum received payment on March 2, 2012.
On March 4, 2012, Above.Com Pty Ltd confirmed by e-mail to the National Arbitration Forum that the <inteliues.com>, <lintelius.com>, <iuntelius.com>, <intrelius.com>, <inteslius.com>, <inteliusd.com>, <inteliue.com>, <ilntelius.com>, <intyelius.com>, <intelkus.com>, <intelkius.com>, <inteliusw.com>, <intelieus.com>, <inetelius.com>, <intlelius.com>, <inteiius.com>, <inteilius.com>, <inteloius.com>, <inteliuys.com>, and <iontelius.com> domain names are registered with Above.Com Pty Ltd. and that Respondent is the current registrant of the names. Above.Com Pty Ltd. has verified that Respondent is bound by the Above.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 March 5, 2012, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 26, 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@inteliues.com, postmaster@lintelius.com, postmaster@iuntelius.com, postmaster@intrelius.com, postmaster@inteslius.com, postmaster@inteliusd.com, postmaster@inteliue.com, postmaster@ilntelius.com, postmaster@intyelius.com, postmaster@intelkus.com, postmaster@intelkius.com, postmaster@inteliusw.com, postmaster@intelieus.com, postmaster@inetelius.com, postmaster@intlelius.com, postmaster@inteiius.com, postmaster@inteilius.com, postmaster@inteloius.com, postmaster@inteliuys.com, postmaster@iontelius.com, and postmaster@inteliuf.com. Also on March 5, 2012, 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 April 9, 2012, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Terry F. Peppard as sole Panelist in this proceeding.
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 names be transferred from Respondent to Complainant.
A. Complainant
Complainant owns trademark registrations, on file with the United States Patent and Trademark Office (“USPTO”) for its INTELIUS mark (including Reg. No. 3,096,294, registered May 23, 2006).
Complainant has continuously used the INTELIUS mark since its start in 2003.
The disputed domain names are confusingly similar to Complainant’s INTELIUS mark.
Respondent has displayed typo-squatting behavior by using numerous domain names confusingly similar to Complainant’s mark.
Respondent has not been commonly known by the disputed domain names.
Complainant has not licensed, authorized, or otherwise permitted Respondent to register domain names incorporating Complainant’s mark.
Respondent uses the contested domain names to resolve to websites featuring links to third-party websites which compete with Complainant’s business.
Respondent receives pay-per-click fee income from the operation of the resolving websites.
Respondent has neither rights to nor legitimate interests in any of the disputed domain names.
Respondent registered and uses Complainant’s mark in the disputed domain names in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
(1) the domain names registered by Respondent are confusingly similar to a trademark in which Complainant has rights; and
(2) Respondent has no rights to or legitimate interests in respect of any of the domain names; and
(3) the same domain names were registered and are being used by Respondent in bad faith.
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."
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:
i. the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
ii. Respondent has no rights or legitimate interests in respect of the domain name; and
iii. the domain name has been registered and is being used in bad faith.
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 a UDRP 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.”
Complainant has rights in its INTELIUS mark under Policy ¶4(a)(i) by virtue of its registration of the mark with a national trademark authority, the USPTO. See Intel Corp. v. Macare, FA 660685 (Nat. Arb. Forum Apr. 26, 2006) (finding that a complainant had established rights in the PENTIUM, CENTRINO and INTEL INSIDE marks by registering the marks with the USPTO); see also Disney Enters., Inc. v. Kudrna, FA 686103 (Nat. Arb. Forum June 2, 2006) (finding that a complainant’s registration of the DISNEY trademark with the USPTO is sufficient to prove that that complainant has rights in the mark pursuant to Policy ¶ 4(a)(i)).
This is true without regard to whether Complainant’s rights in its mark arise from registration of the mark in the jurisdiction other than that in which Respondent resides or operates. See KCTS Television Inc. v. Get-on-the-Web Ltd., D2001-0154 (WIPO Apr. 20, 2001) (holding that it does not matter for purposes of paragraph 4(a)(i) of the Policy whether a complainant’s mark is registered in a country other than that of a respondent’s place of business); see also Williams-Sonoma, Inc. v. Fees, FA 937704 (Nat. Arb. Forum Apr. 25, 2007) (finding that it is irrelevant under Policy ¶ 4(a)(i) whether a complainant has registered its trade-mark in the country of a respondent’s residence).
Respondent’s domain names are confusingly similar to Complainant’s INTELIUS mark under Policy ¶ 4(a)(i). They differ from the mark by only a single character, or by reason of the juxtaposition of two characters, and by the addition of the generic top-level domain (“gTLD”) “.com.” These alterations of the mark, made in forming the contested domain names, are insufficient to distinguish the domain names from the mark under the standards of the Policy. See Amazon.com, Inc. v. Ikhizamah, D2002-1168 (WIPO Mar. 17, 2003) (holding that the domain name <zamazon.com> was confusingly similar to a complainant’s AMAZON.COM mark); see also Wyndham IP Corp. v. LaPorte Holdings, Inc., FA 373545 (Nat. Arb. Forum Jan. 17, 2005) (finding the domain names <wynhdam.com> and <wyandham.com> confusingly similar to a com-plainant’s WYNDHAM mark because the domain names merely transposed letters in the mark); further see Intelius, Inc. v. Hyn, FA 703175 (Nat. Arb. Forum July 5, 2006) (finding the <intellus.com> domain name to be confusingly similar to a complainant’s INTELIUS mark because the domain name differed from the mark by one letter and was visually similar); finally see Jerry Damson, Inc. v. Tex. Int’l Prop. Assocs., FA 916991 (Nat. Arb. Forum Apr. 10, 2007):
The mere addition of a generic top-level domain (“gTLD”) “.com” does not serve to adequately distinguish the Domain Name from the mark.
The Panel therefore finds that Policy ¶ 4(a)(i) has been satisfied.
Under Policy ¶ 4(a)(ii), Complainant must make a prima facie showing that Respondent lacks rights to and legitimate interests in the disputed domain names, whereupon the burden shifts to Respondent to show that it does have such rights or interests. See Hanna-Barbera Prods., Inc. v. Entm’t Comment-aries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that a complainant must make out a prima facie case that a respondent lacks rights to and legitimate interests in a disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to that respondent to show that it does have such rights or interests); see also AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006):
Complainant must first make a prima facie showing that Respond-ent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.
Complainant has made a sufficient prima facie showing under this head of the Policy. Therefore, and because Respondent has failed to respond to the alle-gations of the Complaint filed in this proceeding, we are free to conclude that Respondent has no rights to or legitimate interests in any of the contested domain names. See BIC Deutschland GmbH & Co. KG v. Tweed, D2000-0418 (WIPO June 20, 2000), and Am. Online, Inc. v. AOL Int'l, D2000-0654 (WIPO Aug. 21, 2000), both holding that, where a respondent fails to respond to a UDRP Complaint, a panel may draw the inference that that respondent does not have rights to or legitimate interests in a disputed domain name. Nonetheless, we will examine the record before us, in light of the several considerations set out in Policy ¶ 4(c), to determine whether there is in it any basis for concluding that Respondent has rights to or legitimate interests in the disputed domain names which are cognizable under the Policy.
We begin by noting that Complainant alleges, and Respondent does not deny, that Respondent has not been commonly known by any of the disputed domain names, and that Respondent is not authorized or licensed to use Complainant’s INTELIUS mark. Moreover, the pertinent WHOIS information identifies the regis-trant of the contested domain names only as “Above.com Domain Privacy,” which does not resemble any of the domain names. On this record, we conclude that Respondent has not been commonly known by the disputed domain names so as to have shown that it has rights to or legitimate interests in any of them under Policy ¶4(c)(ii). See, for example, Compagnie de Saint Gobain v. Com-Union Corp., D2000-0020 (WIPO Mar. 14, 2000) (finding no rights to or legitimate interest in a contested domain name where a respondent was not commonly known by the domain name and had never applied for a license or permission from a complainant to use the mark).
We next observe that Complainant asserts, without objection from Respondent, that Respondent uses the contested domain names to resolve to websites featuring links to third-party websites, some of which compete with Complainant’s business, and that Respondent receives pay-per-click fees from the operation of these linked websites. Respondent’s use of the disputed domain names in this manner 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). See ALPITOUR S.p.A. v. Albloushi, FA 888651 (Nat. Arb. Forum Feb. 26, 2007) (rejecting a respondent’s contention of rights to and legitimate interests in the <bravoclub.com> domain name where that respondent was using the domain name to operate a website containing links to commercial websites operating in competition with the business of a complainant, which the panel found did not constitute a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii)); see also 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)).
The Panel thus finds that Policy ¶ 4(a)(ii) has been satisfied.
Respondent’s domain names resolve to websites containing links to third-party websites which compete with the business of Complainant, thus diverting Internet users away from Complainant’s official website, and, in the process, disrupting Complainant’s business, presumably for Respondent’s financial gain. This use of the disputed domain names is evidence of bad faith registration and use of the domain names under Policy ¶ 4(b)(iii). See Am. Airlines, Inc. v. Tex. Int’l Prop. Assoc., FA 914854 (Nat. Arb. Forum Apr. 10, 2007) (holding that where a respondent’s website featured hyperlinks to websites operating in competition with the business of a complainant, that respondent’s use of the domain name there in issue constituted bad faith disruption under Policy ¶ 4(b)(iii)).
Respondent has likewise shown bad faith registration and use of the disputed domain names under Policy ¶4(b)(iv), Respondent’s registration and use of the domains as alleged in the Complaint creates a likelihood of confusion among Internet users with respect to Complainant’s mark, again for Respondent’s commercial gain. This is evidence of bad faith registration and use of the domains under Policy ¶ 4(b)(iv). See 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).
Finally, it is evident from the record that the <inteliues.com>, <lintelius.com>, <iuntelius.com>, <intrelius.com>, <inteslius.com>, <inteliusd.com>, <inteliue.com>, <ilntelius.com>, <intyelius.com>, <intelkus.com>, <intelkius.com>, <inteliusw.com>, <intelieus.com>, <inetelius.com>, <intlelius.com>, <inteiius.com>, <inteilius.com>, <inteloius.com>, <inteliuys.com>, <iontelius.com>, and <inteliuf.com> domain names all constitute misspellings of Complainant’s INTELIUS mark. This pattern of domain name registrations illustrates typo-squatting, a deliberate effort to register domain names containing misspellings of the mark of another in order to take advantage of the mistakes of Internet users in entering the mark into a web browser. Typo-squatting is itself evidence of bad faith registration and use of the domain names pursuant to Policy ¶ 4(b)(iv). See Computerized Sec. Sys., Inc. v. Hu, FA 157321 (Nat. Arb. Forum June 23, 2003) (finding that a respondent engaged in typo-squatting, which is evidence of bad faith registration and use under Policy ¶ 4(b)(iv)); see also Bank of Am. Corp. v. Tak Ume domains for sale, FA 154528 (Nat. Arb. Forum May 19, 2003):
Respondent’s registration and use of the disputed domain name demonstrates a practice commonly referred to as ‘typosquatting.’ This practice diverts Internet users who misspell Complainant’s mark to a website apparently owned by Respondent for Respond-ent’s commercial gain. ‘Typosquatting’ has been recognized as evidencing bad faith registration and use under Policy ¶ 4(b)(iv).
Complainant having established all three elements required to be proven under the ICANN Policy, the Panel concludes that the relief requested must be, and it is hereby, GRANTED.
Accordingly, it is Ordered that the <inteliues.com>, <lintelius.com>, <iuntelius.com>, <intrelius.com>, <inteslius.com>, <inteliusd.com>, <inteliue.com>, <ilntelius.com>, <intyelius.com>, <intelkus.com>, <intelkius.com>, <inteliusw.com>, <intelieus.com>, <inetelius.com>, <intlelius.com>, <inteiius.com>, <inteilius.com>, <inteloius.com>, <inteliuys.com>, and <iontelius.com> domain names be TRANSFERRED forthwith from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: April 22, 2012
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