national arbitration forum

 

DECISION

 

Spark Network USA, LLC v. ICS INC.

Claim Number: FA1301001480653

 

PARTIES

Complainant is Spark Networks USA, LLC (“Complainant”), represented by CitizenHawk, Inc., California, USA.  Respondent is ICS INC. (“Respondent”), Cayman Islands.

 

REGISTRAR AND DISPUTED DOMAIN NAMES

The domain names at issue are <christianimingle.com>, <christianminghle.com>, and <christianmiongle.com>, registered with Enom, Inc.

 

PANEL

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.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum electron-ically on January 16, 2013; the National Arbitration Forum received payment on January 16, 2013.

 

On January 21, 2013, Enom, Inc. confirmed by e-mail to the National Arbitration Forum that the domain names <christianimingle.com>, <christianminghle.com>,  and <christianmiongle.com> are registered with Enom, Inc. and that Respondent is the current registrant of the names.  Enom, Inc. has verified that Respondent is bound by the Enom, Inc. registration agreement and has thereby agreed to re-solve domain disputes brought by third parties in accordance with ICANN’s Uni-form Domain Name Dispute Resolution Policy (the “Policy”).

 

On February 19, 2013, the Forum served the Complaint and all Annexes, includ-ing a Written Notice of the Complaint, setting a deadline of March 11, 2013 by which Respondent could file a Response to the Complaint, via e-mail to all en-tities and persons listed on Respondent’s registration as technical, administra-tive, and billing contacts, and to address of postmaster@christianimingle.com, postmaster@christianminghle.com, postmaster@christianmiongle.com.  Also on February 19, 2013, 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 March 27, 2013, pursuant to Complainant's request to have the dispute de-cided 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.

 

RELIEF SOUGHT

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

 

PARTIES' CONTENTIONS

A. Complainant

 

Complainant, operating under the name and mark CHRISTIANMINGLE, is a provider of online personal advertisements by which single persons may connect with others or participate in a community, become friends, date, form a long-term relationship or marry.

 

Complainant holds a trademark registration, on file with the United States Patent and Trademark Office (“USPTO”) for the CHRISTIANMINGLE mark (Reg. No. 2,940,052, registered April 12, 2005).

 

Respondent registered the <christianminghle.com> and <christianmiongle.com> domain names on June 4, 2012 and the <christianimingle.com> domain name on July 24, 2012.

 

Each of the disputed domain names is confusingly similar to Complainant’s CHRISTIANMINGLE mark.

 

Respondent has not been commonly known by the contested domain names.

 

 

 Respondent is not affiliated with Complainant, and Complainant has not given  

 Respondent consent to use the CHRISTIANMINGLE mark in a domain name.

 

Respondent uses the disputed domain names to redirect unsuspecting Internet users to a website featuring links to third-party websites, some of which compete with Complainant’s business.

 

Respondent likely receives click-through revenue when misdirected Internet users click on the displayed links.

 

Respondent has neither rights to nor legitimate interests in any of the disputed domain names.

 

Respondent’s operation of the websites resolving from the contested domain names disrupts Complainant’s business.

 

Each of Respondent’s domain names is an example of typo-squatting.

 

Respondent has offered the disputed domain names for sale.

 

Respondent has registered and uses each of the domain names in bad faith.

 

B. Respondent

 

Respondent failed to submit a Response in this proceeding.

 

 

FINDINGS

(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.

 

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 can-celled 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 representa-tions 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 Verti-cal 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 reason-able 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.”

 

Identical and/or Confusingly Similar

 

Complainant has rights in the CHRISTIANMINGLE trademark for purposes of Policy ¶ 4(a)(i) on the basis of its registration of the mark with a national trade-mark authority, the USPTO.  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 … mark.

 

This is true without regard to whether Complainant’s rights in its mark arise from registration of the mark in a jurisdiction (here the United States) other than that in which Respondent resides or does business (here the Cayman Islands).  See Koninklijke KPN N.V. v. Telepathy Inc., D2001-0217 (WIPO May 7, 2001) (finding that the Policy does not require that a mark be registered in the country in which a respondent operates, it being sufficient that a complainant can demonstrate rights in a mark in some jurisdiction).

 

Turning then to the core question posed by Policy ¶ 4(a)(i), we conclude from a review of the record that the <christianimingle.com>, <christianminghle.com>, and <christianmiongle.com> domain names are all confusingly similar to Com-plainant’s CHRISTIANMINGLE mark. Each of the domain names is merely a slightly misspelled version of the mark, to which has been added the generic Top Level Domain (“gTLD”) “.com.” 

 

These alterations of the mark, made in creating the domain names, are insuf-ficient to avoid a finding of confusing similarity under the standards of 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).  See also Intelius, Inc. v. Hyn, FA 703175 (Nat. Arb. Forum July 5, 2006) (finding the <intellus.com> domain name to be confusingly similar to a UDRP complainant’s INTELIUS mark because the domain name differed from the mark by one letter and was visually similar).

 

Rights or Legitimate Interests

 

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) (finding 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 re-spondent 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 branch 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 finding 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 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 the disputed domain names, and that Complainant is not affiliated with Respondent and has not authorized Respondent to use the CHRISTIANMINGLE mark.   Moreover, the pertinent WHOIS information identifies the registrant of the three disputed domain names only as “ICS INC,” which does resemble any of the domain names.  On this record, we conclude that Respondent has not been commonly known by any of the contested domain names so as to have demonstrated that it has rights to or legitimate interests in any of them within the meaning of Policy ¶ 4(c)(ii). See Reese v. Morgan, FA 917029 (Nat. Arb. Forum Apr. 5, 2007) (concluding that a respondent was not commonly known by the <lilpunk.com> domain name, and so had no rights to or legitimate interests in that domain name as described in Policy ¶ 4(c)(ii), where there was no evidence in the record showing that that respondent was commonly known by the domain name, and where a UDRP complainant asserted that it did not authorize that respondent’s use of its mark in a domain name).

We next observe that Complainant asserts, without objection from Respondent, that Respondent uses the disputed domain names to redirect users to web pages featuring links to third-party websites, some of which compete with Complainant’s business.   This is not a use in connection with 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 a “[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 offer-ed under [the complainant’s] mark,” that respondent was not using the domain names for a bona fide offering of goods or services or a legitimate noncommer-cial or fair use).

 

The Panel therefore finds that Complainant has satisfied the requirements of Policy ¶ 4(a)(ii).

 

Registration and Use in Bad Faith

 

The record before us amply shows that Respondent has produced a pattern of bad faith registration and use of domain names through its history of registering and using domain names which were later transferred to mark owners as a result of UDRP proceedings.  See State Farm Mut. Auto. Ins. Co. v. ICS Inc., FA 1479442 (Nat. Arb. Forum Feb. 15, 2013); see also W.W. Grainger, Inc. v. ICS INC., FA 1478522 (Nat. Arb. Forum Feb. 14, 2013); further see Novartis AG v. ICS INC., FA 1477529 (Nat. Arb. Forum Feb. 8, 2013).  This pattern of abusive registration and use of domain names stands as evidence that the instant domain names were registered and are being used in bad faith as provided in Policy ¶ 4(b)(ii).  See, for example, TRAVELOCITY.COM LP v. Aziz, FA 1260783 (Nat. Arb. Forum June 16, 2009):

 

These previous [UDRP] decisions demonstrate a pattern of bad faith registration and use of domain names under Policy ¶ 4(b)(ii).

 

We have already found from the evidence that the disputed domain names re-solve to “click through” websites which contain links to other websites promoting products that compete with Complainant’s business.  This disrupts Complainant’s business and is evidence of bad faith registration and use of the domain names under Policy ¶ 4(b)(iii).  See H-D Michigan Inc. v. Buell, FA 1106640 (Nat. Arb. Forum Jan. 2, 2008):

 

The disputed domain names resolve to websites that list links to competitors of Complainant, evidence that Respondent intends to disrupt Complainant’s business, a further indication of bad faith pursuant to Policy ¶ 4(b)(iii).

 

Because Respondent likely receives revenue when Internet users click on the links carried on the websites resolving from the contested domain names, each of which is confusingly similar to Complainant’s CHRISTIANMINGLE mark, this employment of the domain names is proof of bad faith in the registration and use of the domain names under Policy ¶ 4(b)(iv).  See Allianz of Am. Corp. v. Bond, FA 680624 (Nat. Arb. Forum June 2, 2006) (finding bad faith registration and use of a domain name under Policy ¶ 4(b)(iv) where a respondent diverted to its own website Internet users searching for the website of a UDRP complainant, likely profiting in the process).

 

Finally, taken singly and together, the domain names <christianimingle.com>, <christianminghle.com>, and <christianmiongle.com> illustrate typo-squatting, the practice of forming domain names representing misspellings of the marks of enterprises, which errors Internet users commonly make when entering those marks into web browsers.  Typo-squatting is independent evidence of bad faith registration and use of domain names. 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 of a domain name under Policy ¶ 4(a)(iii)).  

 

The Panel thus finds that Complainant has met its obligations of proof under Policy ¶ 4(a)(iii). 

 

DECISION

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 domain names <christianimingle.com> and <christianminghle.com>, and <christianmiongle.com> be TRANSFERRED forthwith from Respondent to Complainant.

 

 

Terry F. Peppard, Panelist

Dated:  April 3, 2013

 

 

 

 

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