UNIRUSH, LLC v. Above.com Domain Privacy
Claim Number: FA1210001466229
Complainant is Unirush, LLC (“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 <eushcard.com>, <roshcard.com>, <ruhscard.com>, <rushcaerd.com>, <rushcardd.com>, <russhcard.com>, and <ruushcard.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 known conflict in serving as Panelist in this proceeding.
Hon. Karl V. Fink (Ret.), as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on October 8, 2012; the National Arbitration Forum received payment on October 8, 2012.
On October 11, 2012, Above.com, Pty. Ltd. confirmed by e-mail to the National Arbitration Forum that the <eushcard.com>, <roshcard.com>, <ruhscard.com>, <rushcaerd.com>, <rushcardd.com>, <russhcard.com>, and <ruushcard.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 October 12, 2012, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 1, 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@eushcard.com, postmaster@roshcard.com, postmaster@ruhscard.com, postmaster@rushcaerd.com, postmaster@rushcardd.com, postmaster@russhcard.com, and postmaster@ruushcard.com. Also on October 12, 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 November 14, 2012, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Hon. 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 issues 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
i. Respondent has not been commonly known by the disputed domain names as the WHOIS information identifies “Above.com Domain Privacy” as the registrant of the domain names at issue. Respondent is not sponsored by Complainant and has not been given permission to use Complainant’s mark in a domain name or otherwise.
ii. Respondent’s disputed domain names all resolve to similar websites featuring various third-party hyperlinks to competing financial services and other unrelated websites.
i. Respondent’s advertised pay-per-links displayed on the resolving websites are promoting products that compete with Complainant’s offerings. Respondent’s links are diverting potential customers away from Complainant, which disrupts Complainant’s business and is evidence of bad faith registration and use under Policy ¶ 4(b)(iii).
ii. Respondent is intentionally attempting to attract, for commercial gain, Internet users to its pay-per-click websites by creating confusion as to Complainant’s involvement or sponsorship of the disputed domain names and websites.
iii. Respondent’s typosquatting behavior is evidence, in and of itself, of bad faith registration and use of the disputed domain names.
B. Respondent
Respondent failed to submit a Response in this proceeding.
For the reason set forth below, the Panel finds Complainant is entitled to the relief requested.
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.”).
Complainant, UniRush, LLC, asserts that it was founded in 2003 in Cincinnati, Ohio. Complainant notes that it offers its RUSHCARD financial services to American customers that may otherwise not have such services available to them. Further, Complainant asserts, and provides evidence, that it is the owner of several trademark registrations with the USPTO for the RUSHCARD mark (e.g., Reg. No. 2,826,230 registered Mar. 23, 2004). The Panel finds that Complainant’s trademark registrations with the USPTO are sufficient for Complainant to establish rights in the RUSHCARD mark under Policy ¶ 4(a)(i), regardless of Respondent’s location. See Vivendi Universal Games v. XBNetVentures Inc., FA 198803 (Nat. Arb. Forum Nov. 11, 2003) (“Complainant's federal trademark registrations [with the USPTO] establish Complainant's rights in the BLIZZARD mark.”); 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 and it is sufficient that the complainant can demonstrate a mark in some jurisdiction).
Complainant also contends that Respondent’s <eushcard.com>, <roshcard.com>, <ruhscard.com>, <rushcaerd.com>, <rushcardd.com>, <russhcard.com>, and <ruushcard.com> domain names are confusingly similar, misspelled versions of Complainant’s RUSHCARD mark. Complainant notes that Respondent’s disputed domain names only differ from Complainant’s mark by the addition or substitution of one character. Complainant also asserts that the addition of the gTLD “.com” is irrelevant to a Policy ¶ 4(a)(i) analysis. The Panel finds that Respondent’s disputed domain names are confusingly similar to Complainant’s RUSHCARD mark under Policy ¶ 4(a)(i), as the Panel finds that the changes noted above to Complainant’s mark do not distinguish the disputed domain names from the mark. See Reuters Ltd. v. Global Net 2000, Inc., D2000-0441 (WIPO July 13, 2000) (finding that a domain name which differs by only one letter from a trademark has a greater tendency to be confusingly similar to the trademark where the trademark is highly distinctive); see also Trip Network Inc. v. Alviera, FA 914943 (Nat. Arb. Forum Mar. 27, 2007) (concluding that the affixation of a gTLD to a domain name is irrelevant to a Policy ¶ 4(a)(i) analysis).
Complainant has proven this element.
Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain names under Policy ¶ 4(a)(ii), and then the burden shifts to Respondent to show it does have rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name); see also AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006) (“Complainant must first make a prima facie showing that Respondent 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 contends that Respondent has not been commonly known by the disputed domain names as the WHOIS information identifies “Above.com Domain Privacy” as the registrant of the domain names at issue. Further, Complainant asserts that Respondent is not sponsored by Complainant and has not been given permission to use Complainant’s mark in a domain name or otherwise. The Panel finds that Respondent is not commonly known by the disputed domain names per Policy ¶ 4(c)(ii). See Reese v. Morgan, FA 917029 (Nat. Arb. Forum Apr. 5, 2007) (concluding that the respondent was not commonly known by the <lilpunk.com> domain name as there was no evidence in the record showing that the respondent was commonly known by that domain name, including the WHOIS information as well as the complainant’s assertion that it did not authorize or license the respondent’s use of its mark in a domain name).
Further, Complainant argues that Respondent’s disputed domain names all resolve to similar websites featuring various third-party hyperlinks to competing financial services and other unrelated websites. The Panel notes that Complainant’s screenshot evidence appears to support its claims as link headings such as “Prepaid Visa® Debit Card” and “Credit Cards for Bad Credit” appear to resolve to competing services. Therefore, the Panel finds that Respondent is not using the <eushcard.com>, <roshcard.com>, <ruhscard.com>, <rushcaerd.com>, <rushcardd.com>, <russhcard.com>, and <ruushcard.com> domain names for 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 H-D Michigan Inc. v. Buell, FA 1106640 (Nat. Arb. Forum Jan. 2, 2008) (finding that, because the “[r]espondent’s disputed domain names resolve to a website featuring a series of advertising links to various third-parties, many of whom offer products and services in direct competition with those offered under [the complainant’s] mark,” the respondent is not using the disputed domain names for a bona fide offering of goods or services or a legitimate noncommercial or fair use).
Complainant has proven this element.
Complainant contends that Respondent’s advertised pay-per-links displayed on the resolving websites are promoting products that compete with Complainant’s offerings. Complainant asserts that Respondent’s links are diverting potential customers away from Complainant, which disrupts Complainant’s business and is evidence of bad faith registration and use under Policy ¶ 4(b)(iii). The Panel agrees and finds that Respondent has registered, and is using, the disputed domain names in bad faith pursuant to Policy ¶ 4(b)(iii). See Compania Mexicana de Aviacion, S.A. de C.V. v. Bigfoot Ventures LLC, FA 1195961 (Nat. Arb. Forum July 14, 2008) (“Respondent’s disputed domain name resolves to a parking website which provides click through revenue to Respondent and which displays links to travel-related products and services that directly compete with Complainant’s business. Accordingly, Respondent’s competing use of the disputed domain name is additional evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iii).”).
Further, Complainant argues that Respondent is intentionally attempting to attract, for commercial gain, Internet users to its pay-per-click websites by creating confusion as to Complainant’s involvement or sponsorship of the disputed domain names and websites. Complainant argues throughout its Complaint that Respondent has intentionally registered misspelled versions of its mark in the disputed domain names to increase confusion on the part of Internet users. Complainant asserts that Respondent is profiting when Internet users inadvertently land on the resolving websites. Therefore, the Panel finds that Respondent has registered and is using the disputed domain names in bad faith pursuant to 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).”).
Lastly, Complainant argues that Respondent’s typosquatting behavior is evidence, in and of itself, of bad faith registration and use of the disputed domain names. The Panel notes that each of the <eushcard.com>, <roshcard.com>, <ruhscard.com>, <rushcaerd.com>, <rushcardd.com>, <russhcard.com>, and <ruushcard.com> domain names contains either a substituted letter, transposed letters, or an additional letter to the RUSHCARD mark. Therefore, the Panel determines that Respondent’s disputed domain name registrations are evidence of typosquatting and that Respondent has therefore registered and is using the disputed domain names in bad faith under Policy ¶ 4(a)(iii). See 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)).
Complainant has proven this element.
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <eushcard.com>, <roshcard.com>, <ruhscard.com>, <rushcaerd.com>, <rushcardd.com>, <russhcard.com>, and <ruushcard.com> domain names be TRANSFERRED from Respondent to Complainant.
Hon. Karl V. Fink (Ret.), Panelist
Dated: November 16, 2012
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