Fandango, LLC v. PPA Media Services / Ryan G Foo
Claim Number: FA1204001439412
Complainant is Fandango, LLC (“Complainant”), represented by CitizenHawk, Inc., California, USA. Respondent is PPA Media Services / Ryan G Foo (“Respondent”), Chile.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <fangango.com>, <fandingo.com>, <fandadgo.com> and <fanadango.com>, registered with Internet.Bs Corp.
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 electron-ically on April 13, 2012; the National Arbitration Forum received payment on April 13, 2012.
On April 19, 2012, Internet.Bs Corp. confirmed by e-mail to the National Arbi-tration Forum that the <fangango.com>, <fandingo.com>, <fandadgo.com> and <fanadango.com> domain names are registered with Internet.Bs Corp. and that Respondent is the current registrant of the names. Internet.Bs Corp. has verified that Respondent is bound by the Internet.Bs Corp. registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accord-ance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On April 26, 2012, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 16, 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@fangango.com, postmaster@fandingo.com, postmaster@fandadgo.com, postmaster@fanadango.com. Also on April 26, 2012, the Written Notice of the Complaint, notifying Respondent of the email addresses served and the deadline for a Response, was transmitted to Respond-ent via post and fax, to all entities and persons listed on Respondent’s registra-tion 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 May 21, 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 Not-ices, 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 uses the FANDANGO trademark in connection with the marketing of movie schedule and location information services, as well as movie tickets and reservations.
Complainant owns trademark registrations for its FANDANGO mark, on file with the United States Patent and Trademark Office (“USPTO”), (Reg. No. 2,769,579, registered September 30, 2003).
Respondent uses some of the disputed domain names to host pay-per-click links to third-party websites that compete directly with the business of Complainant.
Complainant uses the other domain names to phish for personal details from Internet users, in that when users arrive at the resolving website, a pop-up window notifies them of the opportunity to participate in a survey and possibly win a prize, and, after they click “OK,” another pop-up window appears which allows them to select a prize if they enter personal information to obtain it.
Respondent’s <fangango.com>, <fandingo.com>, <fandadgo.com> and <fanadango.com> domain names are confusingly similar to Complainant’s FANDANGO mark.
Respondent is not commonly known by the disputed domain names.
Respondent is not sponsored by or affiliated with Complainant in any way, and Complainant has not given Respondent permission to use Complainant's FANDANGO mark in a domain name.
Respondent is not using any of the disputed domain names in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use.
Respondent engages in typo-squatting and uses the disputed domain names to attract Internet users for its commercial gain.
Respondent had actual knowledge both of Complainant and of its rights in the FANDANGO mark when it registered, and while it has used, all of the disputed domain names.
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 represent-ations 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 a 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 alle-gations of the Complaint.”
Complainant has rights in its FANDANGO trademark under Policy ¶ 4(a)(i) by reason of its registration of the mark with a national trademark authority, the USPTO. See Paisley Park Enters. v. Lawson, FA 384834 (Nat. Arb. Forum Feb. 1, 2005), and in Reebok Int’l Ltd. v. Santos, FA 565685 (Nat. Arb. Forum Dec. 21, 2005), in which the panels determined that a national trademark registration was sufficient for a complainant to establish rights in its mark.
This is true without regard to whether Complainant’s rights arise from registration if its mark in a jurisdiction other than that of Respondent’s residence or place of operations. See Renaissance Hotel Holdings, Inc. v. Renaissance Cochin, FA 932344 (Nat. Arb. Forum Apr. 23, 2007), finding that it does not matter whether a complainant has registered its trademark in the country in which a respondent resides, only that it can establish rights in its mark in some jurisdiction.
Turning then to the central question under this head of the Policy, Respondent’s <fangango.com>, <fandingo.com>, <fandadgo.com> and <fanadango.com> domain names are confusingly similar to Complainant’s FANDANGO mark under Policy ¶ 4(a)(i). Each of the domain names consists of a misspelling of Com-plainant’s FANDANGO mark and the addition of the generic top-level domain (“gTLD”) “.com.” These alterations of the mark, made in forming the domain names, are insufficient to avoid a finding of confusing similarity under the stand-ards of the Policy. See Belkin Components v. Gallant, FA 97075 (Nat. Arb. Forum May 29, 2001), finding a disputed domain to be confusingly similar to a complainant’s BELKIN mark because it merely replaced an “I” with an “e.” Similarly, in Intelius, Inc. v. Hyn, FA 703175 (Nat. Arb. Forum July 5, 2006), a panel found a disputed domain name to be confusingly similar to the mark of an-other because the domain name differed from the mark by one letter and was visually similar.
Finally, a panel in Reese v. Morgan, FA 917029 (Nat. Arb. Forum Apr. 5, 2007), found that the addition of the gTLD “.com” to the mark of another in creating a domain name was insufficient to differentiate the domain name from that mark for purposes of Policy ¶ 4(a)(i).
Under Policy ¶ 4(a)(ii), Complainant must make a prima facie showing that Re-spondent 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 Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that a complainant must make 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 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 Com-plaint, 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 ex-amine 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 Respond-ent has rights to or legitimate interests in any of the disputed domain names which are cognizable under the Policy.
We begin by noting that Complainant contends, and Respondent does not deny,
that Respondent is not commonly known by any of the <fangango.com>, <fandingo.com>, <fandadgo.com> and <fanadango.com> domain names, that Respondent is not sponsored by or affiliated with Complainant in any way, and that Complainant has not given Respondent permission to use Complainant's FANDANGO mark in a domain name. Moreover, the pertinent WHOIS informa-tion identifies the current registrant of the disputed domain names only as “PPA Media Services/ Ryan G Foo,” which does not resemble any of the contested domain names. On this record, we conclude that Respondent has not been commonly known by any of the disputed domain names so as to have demon-strated that it has rights to or legitimate interests in any of them under the provisions of Policy ¶ 4(c)(ii). See, for example, M. Shanken Commc’ns v. WORLDTRAVELERSONLINE.COM, FA 740335 (Nat. Arb. Forum Aug. 3, 2006), in which the panel found that a respondent was not commonly known by a disputed domain name, and so had no rights to or legitimate interests in it within the meaning of Policy ¶ 4(c)(ii), based on the relevant WHOIS information and other evidence in the record. See also St. Lawrence Univ. v. Nextnet Tech, FA 881234 (Nat. Arb. Forum Feb. 21, 2007), a panel there concluding that a re-spondent had no rights to or legitimate interests in a disputed domain name under Policy ¶ 4(c)(ii) where there was no evidence in the record indicating that that respondent was commonly known by the disputed domain name.
We next observe that Complainant contends, without objection from Respondent, that Respondent is not using the disputed domain names for either a bona fide offering of goods or services or a legitimate noncommercial or fair use, in that Respondent uses some of the disputed domain names to host pay-per-click links which redirect Internet users to third-party web sites which compete with the business of Complainant. On the record before us, we concur. See Disney Enters., Inc. v. Kamble, FA 918556 (Nat. Arb. Forum Mar. 27, 2007), where a panel held that the operation of a pay-per-click website resolving from a domain name that was confusingly similar to the mark of another was neither a bona fide offering of goods or services under Policy ¶ 4(c)(i) nor a legitimate noncommer-cial or fair use of that domain name under Policy ¶ 4(c)(iii). See also Meyerson v. Speedy Web, FA 960409 (Nat. Arb. Forum May 25, 2007), in which a panel found that a respondent failed to offer any goods or services on its website, but only featured links to third-party websites, and so was not using a domain name for a bona fide offering of goods or services or a legitimate noncommercial or fair use so as to have shown that it had rights to or legitimate interests in that domain name under either Policy ¶ 4(c)(i) or ¶ 4(c)(iii).
In addition, Complainant alleges, again without objection from Respondent, that Respondent also uses the remainder of the disputed domain names to phish for personal details from Internet users, in that when users arrive at the resolving website, a pop-up window notifies them of the opportunity to participate in a survey and possibly win a prize, and that after they click “OK,” another pop-up window appears which allows them to select a prize and enter personal informa-tion in order to obtain it. This too is not a bona fide offering of goods or services under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use of the domain names under Policy ¶ 4(c)(iii). See Victoria’s Secret Stores Brand Mgmt., Inc. v. Langham, FA 1345734 (Nat. Arb. Forum Oct. 21, 2010), a panel held that the use of a disputed domain name to acquire personal information from Internet users who are led to believe they are signing up for a gift card constitutes phising, and that phishing is evidence that a respondent lacked rights to and legitimate interests in a domain name. Furthermore, a panel in Australia & New Zealand Banking Group Ltd. v. Kim, FA 1366558 (Nat. Arb. Forum Feb. 18, 2011), held that a respondent lacked rights to and legitimate interests in a dis-puted domain name under Policy ¶ 4(a)(ii) where that respondent used the domain name to promote a phishing scheme.
Finally, Complainant asserts that Respondent’s employment of the contested domain name constitutes typo-squatting, in that each of the disputed domain names takes advantage of Internet users’ common typographical errors made in entering domain names in web browsers. Once again we concur. See LTD Commodities LLC v. Party Night, Inc., FA 165155 (Nat. Arb. Forum Aug. 14, 2003), the panel there finding that the domain names <ltdcommadities.com>, <ltdcommmodities.com>, and <ltdcommodaties.com> were intentional mis-spellings of a complainant's LTD COMMODITIES mark, and that this “typo-squatting” was evidence that that respondent lacked rights to and legitimate interests in the disputed domain names. Similarly, a panel in Microsoft Corp. v. Domain Registration Philippines, FA 877979 (Nat. Arb. Forum Feb. 20, 2007), held that, by registering the <microssoft.com> domain name, a respondent had engaged in typo-squatting, which evidenced that that respondent lacked rights to and legitimate interests in the contested domain name.
The Panel therefore finds that Complainant has satisfied Policy ¶ 4(a)(ii).
On the record before us, it is evident that Respondent uses each of the disputed domain names to attract Internet users to its resolving websites for commercial gain, and that, by using domain names that are confusingly similar to Complain-ant’s FANDANGO trademark, Respondent creates in each instance a likelihood of confusion among Internet users. This is evidence of bad faith registration and use of the domain names under Policy ¶ 4(b)(iv). See AltaVista Co. v. Krotov, D2000-1091 (WIPO Oct. 25, 2000), in which a panel found bad faith under Policy ¶ 4(b)(iv), where a respondent’s domain name resolved to a website offering links to third-party websites featuring services similar to those of a complainant. See also Univ. of Houston Sys. v. Salvia Corp., FA 637920 (Nat. Arb. Forum Mar. 21, 2006), finding that a respondent’s use of a domain name to operate a website featuring links to commercial websites competing with the business of a com-plainant, from the operation of which that respondent presumably received a referral fee, was for that respondent’s commercial gain, and stood as evidence of bad faith registration and use of the domain name under Policy ¶ 4(b)(iv).
Complainant asserts that, in creating each of the disputed domain names, Respondent has engaged in typo-squatting by taking advantage of Internet users’ mistakes made in attempting to enter the mark of Complainant in a web browser. Typo-squatting is evidence of bad faith registration and use of a domain name. See Nextel Commc’ns Inc. v. Geer, FA 477183 (Nat. Arb. Forum July 15, 2005), which found that a respondent’s registration and use of the <nextell.com> domain name was in bad faith because the domain name epitomized typo-squatting. See also Internet Movie Database, Inc. v. Temme, FA 449837 (Nat. Arb. Forum May 24, 2005), in which a panel found that a respondent’s registration of a disputed domain names constituted bad faith because the domain name were merely typo-squatted versions of a complain-ant’s IMDB mark under Policy ¶ 4(a)(iii).
Finally under this head of the Policy, we are satisfied that Respondent knew of Complainant and of its rights in the FANDANGO mark at the time it registered and while it has used each of the contested<fangango.com>, <fandingo.com>, <fandadgo.com> and <fanadango.com> domain names. This is independent evidence of bad faith registration and use of the domains under Policy ¶ 4(a)(iii). See Minicards Vennootschap Onder Firma Amsterdam v. Moscow Studios, FA 1031703 (Nat. Arb. Forum Sept. 5, 2007), in which a panel held that a respond-ent registered and used a disputed domain name in bad faith under Policy ¶ 4(a)(iii) where that respondent knew of Complainant’s mark when it registered the domain name.
For these reasons, the Panel finds that Complainant has met its obligations of proof under Policy ¶ 4(a)(iii).
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 <fangango.com>, <fandingo.com>, <fandadgo.com> and <fanadango.com> domain names be TRANSFERRED forthwith from Respondent to Complainant.
Terry F. Peppard
Terry F. Peppard, Panelist
Dated: June 4, 2012
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