national arbitration forum

 

DECISION

 

Cybertania, Inc v. EUGEN C POPA / EUGEN POPA

Claim Number: FA1205001445679

 

PARTIES

Complainant is Cybertania, Inc (“Complainant”), represented by Leo Radvinsky, Illinois, USA.  Respondent is EUGEN C POPA / EUGEN POPA (“Respondent”), Washington, USA.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <myfreecam.co>, registered with Central Comercializadora De Internet Panama S.A.

 

PANEL

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.

 

Bruce E. Meyerson as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum electronically on May 24, 2012; the National Arbitration Forum received payment on May 24, 2012.

 

On May 24, 2012, Central Comercializadora De Internet Panama S.A. confirmed by e-mail to the National Arbitration Forum that the <myfreecam.co> domain name is registered with Central Comercializadora De Internet Panama S.A. and that Respondent is the current registrant of the name.  Central Comercializadora De Internet Panama S.A. has verified that Respondent is bound by the Central Comercializadora De Internet Panama S.A. 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 May 25, 2012, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 14, 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@myfreecam.co.  Also on May 25, 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 June 21, 2012, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Bruce E. Meyerson 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.

 

RELIEF SOUGHT

Complainant requests that the domain name be transferred from Respondent to Complainant.

 

PARTIES' CONTENTIONS

A. Complainant

A.   Complainant provides online chat rooms for the transmission of messages among computer users concerning adult themed interactive discussion under the MYFREECAMS.COM  mark.

B.   Complainant owns a trademark registration with the United States Patent and Trademark and Office (“USPTO”) for the MYFREECAMS.COM mark (Reg. No. 3,495,750 registered September 2, 2008).

C.   The <myfreecam.co> domain name is confusingly similar to Complainant’s mark.

D.   Respondent is not commonly known by the disputed domain name.

E.   The disputed domain name resolves to a competing website meant to appear substantially similar to Complainant’s site.

F.    Respondent’s site fraudulently encourages visitors to enter personal information.

G.   Respondent’s <myfreecam.co> domain name represents a typosquatted version of Complainant’s MYFREECAMS.COM mark.

 

 

B. Respondent

Respondent failed to submit a Response in this proceeding.

 

FINDINGS

Complainant holds a registered trademark for the MYFREECAMS.COM mark in the United States.  Respondent did not submit a Response in this proceeding.

 

DISCUSSION

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:

 

(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.

 

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.”).

 

Identical and/or Confusingly Similar

 

Registration of a mark with a federal trademark authority is sufficient to establish rights in the mark for the purposes of Policy ¶ 4(a)(i). See Miller Brewing Co. v. Miller Family, FA 104177 (Nat. Arb. Forum Apr. 15, 2002) (finding that the complainant had established rights to the MILLER TIME mark through its federal trademark registrations). Complainant holds a registration with the USPTO for the MYFREECAMS.COM mark (Reg. No. 3,495,750 registered September 2, 2008). Accordingly, the Panel finds that Complainant’s registration with the USPTO confers rights in the mark pursuant to Policy ¶ 4(a)(i).  See AOL LLC v. Interrante, FA 681239 (Nat. Arb. Forum May 23, 2006) (finding that where the complainant had submitted evidence of its registration with the USPTO, “such evidence establishes complainant’s rights in the mark pursuant to Policy ¶ 4(a)(i).”).

 

Complainant contends that the <myfreecam.co> domain name is confusingly similar to Complainant’s MYFREECAMS.COM mark under Policy ¶ 4(a)(i). Complainant asserts that the disputed domain name omits the letter “s” from Complainant’s mark, while also omitting the final “m,” which creates a confusingly similar domain name with the generic top-level domain (“gTLD”) “.co” instead of “.com.” The disputed domain name’s omission of two letters from Complainant’s mark represents a common typographical error of a mark, evidencing confusing similarity under Policy ¶ 4(a)(i). See Myspace, Inc. v. Kang, FA 672160 (Nat. Arb. Forum June 19, 2006) (finding that the <myspce.com> domain name was confusingly similar to the complainant’s MYSPACE mark and the slight difference in spelling did not reduce the confusing similarity); see also RockAuto, LLC v. Kamil Wszola / Blueconnex Inc., FA 1440497 (Nat. Arb. Forum May 17, 2012) (finding that changing the “generic top-level domain name ‘.com’ to the country-code top-level domain ‘.co’ is immaterial for the purposes of Policy ¶4(a)(i) since top-level domain names are entirely disregarded under Paragraph 4(a)(i).”). The Panel concludes that Respondent’s <myfreecam.co> domain name is confusingly similar to Complainant’s MYFREECAMS.COM mark under Policy ¶ 4(a)(i).

 

The Panel finds Complainant has satisfied Policy ¶ 4(a)(i).

 

Rights or Legitimate Interests

 

Complainant alleges that Respondent holds no rights or legitimate interests in the disputed domain name. This allegation must be supported with a prima facie showing by Complainant under Policy ¶ 4(a)(ii). After a complainant successfully makes a prima facie case, a respondent is faced with the burden of proving it does have rights or legitimate interests in the domain name. In Swedish Match UK Ltd. v. Admin, Domain, FA 873137 (Nat. Arb. Forum Feb. 13, 2007), the panel held that when a complainant produces a prima facie case, the burden of proof then shifts to the respondent to demonstrate its rights or legitimate interests in the domain name under Policy ¶ 4(c). See also Compagnie Generale des Matieres Nucleaires v. Greenpeace Int’l, D2001-0376 (WIPO May 14, 2001) (“For the purposes of this sub paragraph, however, it is sufficient for the Complainant to show a prima facie case and the burden of proof is then shifted on to the shoulders of Respondent.  In those circumstances, the common approach is for respondents to seek to bring themselves within one of the examples of paragraph 4(c) or put forward some other reason why they can fairly be said to have a relevant right or legitimate interests in respect of the domain name in question.”). The Panel holds that Complainant has made a prima facie case.

Complainant alleges that Respondent is not commonly known by the <myfreecam.co> domain name pursuant to Policy ¶ 4(c)(ii), asserting that Complainant has never granted Respondent license or permission to use its mark. The WHOIS information on record identifies Respondent as “EUGEN C POPA / EUGEN POPA,” which is substantially dissimilar to the <myfreecam.co> domain name. Furthermore, Respondent has failed to present the Panel with any evidence that it is in fact commonly known by the disputed domain name. Accordingly, the Panel concludes that Respondent is not commonly known by the <myfreecam.co> domain name pursuant to Policy ¶ 4(c)(ii). See 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).

 

Complainant contends that the <myfreecam.co>  domain name resolves to a competing commercial website, which is designed to look like the website Complainant operates at <myfreecams.com>. Complainant argues that the diversion of consumers to Respondent’s website through confusion is not a bona fide offering of goods and services pursuant to Policy ¶ 4(c)(i). The Panel finds precedential support for Complainant’s allegations. See 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 goods or services under Policy ¶ 4(c)(i) and it is not a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).”). Thus, Respondent’s use of the disputed domain name comports with neither a bona fide offering of goods or services under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).

 

Complainant also contends that Respondent uses the disputed domain name to fraudulently encourage visitors to divulge personal information, including their username and password for Complainant’s site, and that this activity constitutes phishing. Phishing is evidence of a respondent’s lack of rights or legitimate interests under Policy ¶ 4(a)(ii). See Allianz of Am. Corp. v. Bond, FA 690796 (Nat. Arb. Forum June 12, 2006) (holding that the respondent’s use of the <allianzcorp.biz> domain name to fraudulently acquire the personal and financial information of Internet users seeking Complainant’s financial services was not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use of the disputed domain name pursuant to Policy ¶ 4(c)(iii)). Accordingly, the Panel finds that Respondent’s use of the <myfreecam.co> domain name constitutes phishing, and that this phishing activity demonstrates Respondent’s lack of rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(a)(ii).

 

Complainant further contends that given the similarity between Respondent’s <myfreecam.co> domain name and Complainant’s MYFREECAMS.COM mark, Respondent’s domain name constitutes a typosquatted version of Complainant’s mark. Respondent’s registration of a confusingly similar domain name which differs from Complainant’s mark by only two letters constitutes typosquatting, which evidences Respondent’s lack of rights or legitimate interests in the <myfreecam.co> domain name under 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).”).

 

The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).

 

Registration and Use in Bad Faith

 

Complainant contends that Respondent is using the <myfreecam.co> domain name to attract Internet users to its website for commercial gain by creating confusion based on a misspelling of Complainant’s mark. The Panel may infer that Respondent derives a commercial benefit from the operation of its site, and Respondent’s use of a confusingly similar domain name suggests an intent to create confusion among Internet users as to whether Respondent’s site is affiliated with or endorsed by Complainant. The Panel concludes that Respondent uses this confusion to wrongfully associate itself with Complainant’s business, benefitting from the goodwill which Complainant’s business has garnered. Respondent’s creation of confusion as to its affiliation with Complainant in order to realize a commercial gain constitutes bad faith under Policy ¶ 4(b)(iv). See Metro. Life Ins. Co. v. Bonds, FA 873143 (Nat. Arb. Forum Feb. 16, 2007) (“The Panel finds such use to constitute bad faith registration and use pursuant to Policy ¶ 4(b)(iv), because [r]espondent is taking advantage of the confusing similarity between the <metropolitanlife.us> domain name and Complainant’s METLIFE mark in order to profit from the goodwill associated with the mark.”).

 

Complainant contends that Respondent uses the disputed domain name to redirect visitors to a competing commercial website, where Respondent attempts to steal visitors’ username and password for Complainant’s site. Complainant argues that this conduct constitutes phishing. Because the Panel finds that Respondent’s conduct constitutes phishing, the Panel finds that Respondent’s actions constitute bad faith under Policy ¶ 4(a)(iii) as well. See Capital One Fin. Corp. v. Howel, FA 289304 (Nat. Arb. Forum Aug. 11, 2004) (finding bad faith registration and use because the respondent used the domain name to redirect Internet users to a website that imitated the complainant’s website and to fraudulently acquire personal information from the complainant’s clients).

 

Additionally, Complainant alleges that Respondent is creating confusion as to Complainant’s affiliation with the disputed domain name by registering a common misspelling of Complainant’s mark. AsRespondent’s conduct constitutes typosquatting, the Panel concludes that Respondent’s typosquatting activity constitutes bad faith under Policy ¶ 4(a)(iii). See 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.).

 

The Panel finds Complainant has satisfied Policy ¶ 4(a)(iii).

 

DECISION

Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.

 

Accordingly, it is Ordered that the <myfreecam.co> domain name be TRANSFERRED from Respondent to Complainant.

 

 

Bruce E. Meyerson, Panelist

Dated:  June 27, 2012

 

 

 

 

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