Spark Networks USA, LLC v. Above.com Domain Privacy
Claim Number: FA1212001475032
Complainant is Spark Networks USA, LLC (“Complainant”), represented by CitizenHawk, Inc., California. Respondent is Above.com Domain Privacy (“Respondent”), Australia.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <americainsingles.com>, <americanssingles.com>, <blacksibgles.com>, <blacksinggles.com>, <blacksinglesa.com>, <blacksinglles.com>, <chriistianmingle.com>, <christianingle.com>, <christianminglr.com>, <chritsianmingle.com>, <chrtistianmingle.com>, <jdaet.com>, <jdatr.com>, <vlacksingles.com>, and <wwwspark.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.
Bruce E. Meyerson as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on December 10, 2012; the National Arbitration Forum received payment on December 10, 2012.
On December 10, 2012, Above.com Pty Ltd confirmed by e-mail to the National Arbitration Forum that the <americainsingles.com>, <americanssingles.com>, <blacksibgles.com>, <blacksinggles.com>, <blacksinglesa.com>, <blacksinglles.com>, <chriistianmingle.com>, <christianingle.com>, <christianminglr.com>, <chritsianmingle.com>, <chrtistianmingle.com>, <jdaet.com>, <jdatr.com>, <vlacksingles.com>, and <wwwspark.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 December 18, 2012, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 7, 2013 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@americainsingles.com, postmaster@americanssingles.com, postmaster@blacksibgles.com, postmaster@blacksinggles.com, postmaster@blacksinglesa.com, postmaster@blacksinglles.com, postmaster@chriistianmingle.com, postmaster@christianingle.com, postmaster@christianminglr.com, postmaster@chritsianmingle.com, postmaster@chrtistianmingle.com, postmaster@jdaet.com, postmaster@jdatr.com, postmaster@vlacksingles.com, and postmaster@wwwspark.com. Also on December 18, 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 January 14, 2013, 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.
Complainant requests that the domain names be transferred from Respondent to Complainant.
A. Complainant
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant holds trademark rights for the AMERICAN SINGLES, BLACKSINGLES.COM, CHRISTIANMINGLE, JDATE, SPARK and SPARK NETWORK marks. Respondent’s domain names are confusingly similar to Complainant’s AMERICAN SINGLES, BLACKSINGLES.COM, CHRISTIANMINGLE, JDATE, SPARK and SPARK NETWORK marks. Complainant has established that Respondent lacks rights or legitimate interests in the use of the <americainsingles.com>, <americanssingles.com>, <blacksibgles.com>, <blacksinggles.com>, <blacksinglesa.com>, <blacksinglles.com>, <chriistianmingle.com>, <christianingle.com>, <christianminglr.com>, <chritsianmingle.com>, <chrtistianmingle.com>, <jdaet.com>, <jdatr.com>, <vlacksingles.com>, and <wwwspark.com> domain names, and that Respondent registered and uses the domain names 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:
(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 bases its rights in the following marks by way of USPTO trademark registrations:
· AMERICAN SINGLES (Reg. No. 2,609,475 registered on Aug. 20, 2002)
· BLACKSINGLES.COM (Reg. No. 2,853,581 registered on June 15, 2004)
· CHRISTIANMINGLE (Reg. No. 2,904,052 registered on Apr. 12, 2005).
· JDATE (Reg. No. 2,420,967 registered on Jan. 16, 2001; Reg. No. 2,447,429 registered on Jun. 17, 2008).
· SPARK (Reg. No. 3,248,149 registered on May 29, 2007).
· SPARK NETWORK (Reg. No. 3,134,171 registered on Aug. 22, 2006).
Complainant claims that it uses these marks in its business of running online businesses that provide networking and relationship-building opportunities to Internet users—focusing on single individuals. Complainant argues that regardless of where Respondent is located, its USPTO registrations of the marks satisfy its duty to show rights. These trademark registrations are sufficient to establish Complainant’s rights in the marks under Policy ¶ 4(a)(i). 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.”). The Panel also agrees it is unnecessary for Complainant to base its rights on registrations in Respondent’s country. See Williams-Sonoma, Inc. v. Fees, FA 937704 (Nat. Arb. Forum Apr. 25, 2007) (finding that it is irrelevant whether the complainant has registered its trademark in the country of the respondent’s residence).
Complainant argues Respondent’s disputed domain names are confusingly similar to Complainant’s registered marks. Complainant contends that the addition of the generic top-level domain (“gTLD”) is irrelevant in the analysis of these domain names. Complainant generally contends that each of the disputed domain names differs by only the juxtaposition of two characters when compared to Complainant’s marks, that some of the dispute domain names seem to differentiate from the marks only because Respondent added generic terms to the mark in forming the domain names, and that generic terms are not sufficient to surpass confusing similarity. The Panel agrees that gTLDs are irrelevant under the Policy. See 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).
In regards to the AMERICAN SINGLES mark, Respondent adds the letter “i” in the <americainsingles.com> domain name, and an additional “s” in the <americanssingles.com> domain name. The addition of a single letter to the otherwise registered AMERICAN SINGLES mark does nothing to clear up a question of confusing similarity. 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). The deletion of the spacing in the AMERICAN SINGLES mark is irrelevant under Policy ¶ 4(a)(i). See Bond & Co. Jewelers, Inc. v. Tex. Int’l Prop. Assocs., FA 937650 (Nat. Arb. Forum Apr. 30, 2007) (finding that the elimination of spaces between terms and the addition of a gTLD do not establish distinctiveness from the complainant’s mark under Policy ¶ 4(a)(i)). Thus, the Panel finds that the <americainsingles.com>,and <americanssingles.com> domain names are confusingly similar to Complainant’s AMERICAN SINGLES mark under Policy ¶ 4(a)(i).
In regards to the BLACKSINGLES.COM mark, like the domain names in the preceding paragraph, Respondent merely added an additional letter to the <blacksinggles.com>, <blacksinglesa.com>, and <blacksinglles.com> domain names. These additions enhance confusing similarity. 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). The <blacksibgles.com> domain name features the replacement of the letter “n” with a “b,” while the <vlacksingles.com> domain name has changed the letter “b” to a “v.” Respondent has made mere typographical errors in what would otherwise constitute Complainant’s BLACKSINGLES.COM domain name, and therefore the domain names are confusingly similar to the mark under Policy ¶ 4(a)(i). See Belkin Components v. Gallant, FA 97075 (Nat. Arb. Forum May 29, 2001) (finding the <belken.com> domain name confusingly similar to the complainant's BELKIN mark because the name merely replaced the letter “i” in the complainant's mark with the letter “e”). Therefore the Panel concludes that all of the <blacksibgles.com>, <blacksinggles.com>, <blacksinglesa.com>, <blacksinglles.com>, and <vlacksingles.com> domain names are confusingly similar to the BLACKSINGLES.COM mark.
In regards to the CHRISTIANMINGLE mark, the <chriistianmingle.com> domain name adds an additional letter “i” to the mark, and that the <chrtistianmingle.com> domain name adds a letter “t” before the first letter “i” in the mark. These additions create confusing similarity. See Google, Inc. v. DktBot.org, FA 286993 (Nat. Arb. Forum Aug. 4, 2004) (“The mere addition of a single letter to the complainant’s mark does not remove the respondent’s domain names from the realm of confusing similarity in relation to the complainant’s mark pursuant to Policy ¶ 4(a)(i).”). The <christianingle.com> domain name changes the letter “m” to an “n,” while the <christianminglr.com> domain name changes the “e” to an “r.” Such misspellings of Complainant’s mark make the domain names when compared to the mark. See Belkin Components v. Gallant, FA 97075 (Nat. Arb. Forum May 29, 2001) (finding the <belken.com> domain name confusingly similar to the complainant's BELKIN mark because the name merely replaced the letter “i” in the complainant's mark with the letter “e”). The <chritsianmingle.com> domain name transposes the letter “s” and the letter “t” in the otherwise registered CHRISTIANMINGLE mark. Respondent’s transposition of letters does nothing but enhance the confusing similarity between the domain name and the mark. See Wyndham IP Corp. v. LaPorte Holdings, Inc., FA 373545 (Nat. Arb. Forum Jan. 17, 2005) (finding the <wynhdam.com> and <wyandham.com> domain names to be confusingly similar to the complainant’s WYNDHAM mark because the domain names merely transposed letters in the mark). Therefore, the Panel finds that the <chriistianmingle.com>, <christianingle.com>, <christianminglr.com>, <chritsianmingle.com>, and <chrtistianmingle.com> domain names are all confusingly similar to Complainant’s CHRISTIANMINGLE mark under Policy ¶ 4(a)(i).
In regards to the JDATE mark, the <jdaet.com> domain name transposes the letters “t” and “e” in the JDATE mark, while the <jdatr.com> domain name replaces the letter “e” in the mark with the letter “r.” The transposing the letters of a registered mark, or merely misspelling a registered mark, illustrates that the respondent’s domain names are confusingly similar to the registered mark. See Wyndham IP Corp. v. LaPorte Holdings, Inc., FA 373545 (Nat. Arb. Forum Jan. 17, 2005) (finding the <wynhdam.com> and <wyandham.com> domain names to be confusingly similar to the complainant’s WYNDHAM mark because the domain names merely transposed letters in the mark); Belkin Components v. Gallant, FA 97075 (Nat. Arb. Forum May 29, 2001) (finding the <belken.com> domain name confusingly similar to the complainant's BELKIN mark because the name merely replaced the letter “i” in the complainant's mark with the letter “e”). Therefore the Panel finds that both the <jdaet.com> and <jdatr.com> domain names are confusingly similar to Respondent’s JDATE mark under Policy ¶ 4(a)(i).
In regards to the SPARK mark, Complainant argues that this domain name simply omits the period that web users would use in finding Complainants’ website, reachable through the URL “www.spark.com.” The addition of “www” does not differentiate a domain name from a mark. Register.com Inc. v. House, FA 167970 (Nat. Arb. Forum Aug. 22, 2003) (finding the prefix “www” followed by the trademark with no period separating them did not distinguish the mark and was confusingly similar). Therefore, the Panel finds that the <wwwspark.com> domain name is confusingly similar to Complainant’s SPARK mark.
The Panel finds Complainant has satisfied Policy ¶ 4(a)(i).
Complainant alleges that Respondent holds no rights or legitimate interests in the disputed domain names. 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 contends that Respondent is not commonly known by the disputed domain names. Complainant notes that the WHOIS information suggests that Respondent is known as something other than the trademark associated with Complainant, and Complainant has not licensed, authorized, or otherwise permitted Respondent to register domain names incorporating the marks. The WHOIS information for all of the disputed domain names lists “Above.com Domain Privacy” as the registrant. A respondent is not commonly known by the disputed domain name when there is no evidence in the record capable of suggesting a connection between the respondent and the domain name. See Educ. Broad. Corp. v. DomainWorks Inc., FA 882172 (Nat. Arb. Forum Apr. 18, 2007) (concluding that the respondent was not commonly known by the <thirteen.com> domain name based on all evidence in the record, and the respondent did not counter this argument in its response). The Panel agrees and finds that Respondent is not commonly known by any of the disputed domain names under Policy ¶ 4(c)(ii).
Complainant contends that Respondent is using some or all of the disputed domain names to redirect Internet users to a website operated by Complainant’s competitors. Complainant argues that Respondent presumably receives consideration from those firms for driving traffic to them. Complainant contends that Respondent is causing confusion among consumers by using the marks in its domain names, and is thus tarnishing Complainant’s reputation.
The <americainsingles.com>, <americanssingles.com>, <blacksinggles.com>, <blacksinglesa.com>, <blacksinglles.com>, <chriistianmingle.com>, <christianminglr.com>, <chritsianmingle.com>, <jdaet.com>, <jdatr.com>, <vlacksingles.com>, and <wwwspark.com> domain names appear to resolve to websites predominated by hyperlinks to other dating and networking websites. Deriving commercial revenues by operating a website of click-through hyperlinks to services which compete with the trademark holder is neither a legitimate noncommercial or fair use nor a bona fide offering of goods or services. See Compania Mexicana de Aviacion, S.A. de C.V. v. Bigfoot Ventures LLC, FA 1195961 (Nat. Arb. Forum July 14, 2008) (holding that the respondent had not demonstrated a bona fide offering of goods or services or a legitimate noncommercial or fair use when “the website resolving from the disputed domain name displays links to travel products and services, which directly compete with Complainant’s business”). None of these domain names provide a Policy ¶ 4(c)(i) bona fide offering of goods or services, and the profits Respondent receives from these hyperlinks bar the application of Policy ¶ 4(c)(iii)’s legitimate noncommercial or fair use.
The <blacksibgles.com> domain name appears to resolve to a website with a submission form that asks Internet users to join a dating website. Using a confusingly similar domain name for a competing service is, much like the hosting of competing hyperlinks, incapable of being a bona fide offering of goods or services. See Alcon, Inc. v. ARanked, FA 1306493 (Nat. Arb. Forum Mar. 18, 2010) (“The Panel finds that capitalizing on the well-known marks of Complainant by attracting internet users to its disputed domain names where Respondent sells competing products of Complainant is not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).”). The Panel concludes that Respondent cannot operate the commercial website found at the <blacksibgles.com> domain name under a Policy ¶ 4(c)(iii) legitimate noncommercial or fair use, and that the use of the domain name to compete with Complainant is not a bona fide offering of goods and services under Policy ¶ 4(c)(i).
Complainant believes Respondent is operating the <christianingle.com> and <chrtistianmingle.com> domain names in violation of an affiliate agreement. These domain names resolve to Complainant’s own domain name. As the record contains no evidence to contradict the Complainant’s assertion, the Panel concludes that Respondent did enter an affiliate agreement, and has violated the agreement by registering the two domain names. Thus, Respondent’s use of the disputed domain names constitutes neither a Policy ¶ 4(c)(i) bona fide offering, nor a Policy ¶ 4(c)(iii) legitimate noncommercial or fair use. See Sports Auth. Mich., Inc. v. Jablome, FA 124861 (Nat. Arb. Forum Nov. 4, 2002) (by signing up for the complainant’s affiliate program upon registering the domain name, which was a misspelling of the complainant’s mark, the respondent intended to use the domain name to generate profit at the complainant’s expense, thereby evidencing a lack of rights and legitimate interests in the domain name under Policy ¶¶ 4(c)(i) and (iii)).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant first alleges that Respondent has listed the disputed domain names for sale. Complainant asserts that the offering of a domain for sale, even to a third party, constitutes bad faith. Complainant only offers evidence that a single domain name, <americanssingles.com>, has been placed for sale at an auction. The Panel finds that Respondent registered and used the <americanssingles.com> domain name in bad faith by placing the name on an auction website. See Wrenchead.com, Inc. v. Hammersla, D2000-1222 (WIPO Dec. 12, 2000) (finding that offering the domain name for sale at an auction site is evidence of bad faith registration and use). The Panel therefore finds that the <americanssingles.com> domain name was registered and is being used in bad faith under Policy ¶ 4(b)(i).
Complainant also argues that Respondent’s use of hyperlinks on the following disputed domain names includes hyperlinks advertising Complainant’s competitors. Complainant contends that this serves to disrupt Complainant’s business by driving potential customers to competing firms. These domain names are: <americainsingles.com>, <americanssingles.com>, <blacksinggles.com>, <blacksinglesa.com>, <blacksinglles.com>, <chriistianmingle.com>, <christianminglr.com>, <chritsianmingle.com>, <jdaet.com>, <jdatr.com>, <vlacksingles.com>, and <wwwspark.com> . Moreover, the <blacksibgles.com> domain name resolves to a website that hosts a competing service. See Univ. of Texas Sys. v. Smith, FA 1195696 (Nat. Arb. Forum July 7, 2008) (finding that using the resolving website to divert Internet users to the complainant’s competitors constituted bad faith registration and use under Policy ¶ 4(b)(iii)); DatingDirect.com Ltd. v. Aston, FA 593977 (Nat. Arb. Forum Dec. 28, 2005) (“Respondent is appropriating Complainant’s mark to divert Complainant’s customers to Respondent’s competing business. The Panel finds this diversion is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iii).”). Therefore the Panel finds that all of these disputed domain names are being used to disrupt Complainant’s business under Policy ¶ 4(b)(iii).
Complainant further alleges that Respondent is using some of the domain names to resolve to Complainant’s own websites in violation of the affiliate agreement which governs Respondent’s relationship as an affiliate of Complainant. Complainant argues that Respondent is attempting to opportunistically take advantage of its registration and use of these disputed domain names at Complainant’s expense. The <christianingle.com> and <chrtistianmingle.com> domain names appear to be the domain names Complainant refers to, as each of them resolves to Complainant’s own website. Bad faith use and registration arise when a respondent joins a complainant’s affiliate program, and subsequently registers confusingly similar domain names based upon the complainant’s marks. See Cricket Commc’ns, Inc. v. Oliver, FA 954005 (Nat. Arb. Forum May 29, 2007) (finding bad faith registration and use where the respondent registered domain names containing the complainant’s mark after enrolling in the complainant’s affiliate program). Panel concludes that Respondent did in fact sign an affiliate agreement and therefore the registration of both the <christianingle.com> and <chrtistianmingle.com> domain names are in bad faith pursuant to Policy ¶ 4(b)(iv). See Deluxe Corp. v. Dallas Internet, FA 105216 (Nat. Arb. Forum Apr. 10, 2002) (finding the respondent registered and used the <deluxeform.com> domain name in bad faith pursuant to Policy ¶ 4(b)(iv) by redirecting its users to the complainant’s <deluxeforms.com> domain name, thus receiving a commission from the complainant through its affiliate program).
Complainant finally contends that Respondent’s typosquatting behavior in regards to all of the disputed domain names is in itself evidence of bad faith. A respondent has registered and used a disputed domain name in bad faith when the domain name is merely the misspelling of a mark in which the complaining party has rights. See Bank of Am. Corp. v. Tak Ume domains for sale, FA 154528 (Nat. Arb. Forum May 19, 2003) (holding that the practice of typosquatting “diverts Internet users who misspell Complainant’s mark to a website apparently owned by Respondent for Respondent’s commercial gain. ‘Typosquatting’ has been recognized as evidencing bad faith registration and use under Policy ¶ 4(b)(iv).”). The Panel agrees that all of the domain names in this proceeding are typosquatted, and that Respondent registered and is using these names in bad faith under Policy ¶ 4(a)(iii).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <americainsingles.com>, <americanssingles.com>, <blacksibgles.com>, <blacksinggles.com>, <blacksinglesa.com>, <blacksinglles.com>, <chriistianmingle.com>, <christianingle.com>, <christianminglr.com>, <chritsianmingle.com>, <chrtistianmingle.com>, <jdaet.com>, <jdatr.com>, <vlacksingles.com>, and <wwwspark.com> domain names be TRANSFERRED from Respondent to Complainant.
Bruce E. Meyerson, Panelist
Dated: January 28, 2013
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