Intelius, A Division Of Inome, Inc. v. Domain Administrator
Claim Number: FA1302001483843
Complainant is Intelius, A Division Of Inome, Inc. (“Complainant”), represented by CitizenHawk, Inc., California, USA. Respondent is Domain Administrator (“Respondent”), Amman, Jordan.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <ntelius.com> and <wwwintelius.com>, registered with Moniker Online Services LLC.
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.
David A. Einhorn appointed as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on February 6, 2013; the National Arbitration Forum received payment on February 6, 2013.
On February 7, 2013, Moniker Online Services LLC confirmed by e-mail to the National Arbitration Forum that the <ntelius.com> and <wwwintelius.com> domain names are registered with Moniker Online Services LLC and that Respondent is the current registrant of the names. Moniker Online Services LLC has verified that Respondent is bound by the Moniker Online Services LLC 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 February 8, 2013, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 28, 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@ntelius.com and postmaster@wwwintelius.com. Also on February 8, 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 15, 2013, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed David A. Einhorn 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
i. Complainant owns federal trademark registrations in the INTELIUS mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 3,096,294, filed Jan. 9, 2003 and registered May 23, 2006) and with the European Union’s Office for Harmonization in the Interal Market (“OHIM”) (Reg. No. 3,262,219, filed July 9, 2003 and registered Nov. 16, 2004).
ii. Complainant first used the INTELIUS mark in commerce on February 26, 2003.
iii. Complainant registered its primary domain name, <intelius.com>, on October 4, 2001.
iv. Respondent registered the <ntelius.com> domain name on February 13, 2006 and the <wwwintelius.com> domain name on October 21, 2003. Although the <wwwintelius.com> domain name predates Complainant’s registration of the INTELIUS mark, Complainant established common law rights through its filing, use of the mark in commerce, and registration of its primary domain name using the mark.
i. Respondent has not been commonly known by the disputed domain names.
ii. Complainant is not affiliated with Respondent and did not give Respondent permission to use the mark.
iii. Respondent is using the disputed domain names to redirect Internet users to a website featuring generic links to third-party websites, some of which directly compete with Complainant’s business. This is not a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) and (4)(c)(iii).
i. Respondent is diverting Internet users to its website for commercial gain by creating confusion with Complainant’s mark. This demonstrates bad faith under Policy ¶ 4(b)(iv).
ii. The links displayed on the website compete with and disrupt Complainant’s business, as evidence of bad faith under Policy ¶ 4(b)(iii).
iii. Respondent is typosquatting, which is in itself evidence of bad faith.
[The Panel notes that the exhibits to this Complaint, prepared by Complainant’s representative, CitizenHawk, are reproduced and uploaded so poorly that the Panel found it necessary to study the exhibits and review online data to make sense of the allegations. It should be noted that in another recent proceeding in which the complainant was also represented by CitizenHawk, the Panel therein noted that it was “quite troubled by the apparent carelessness” with which the complaint in that proceeding was prepared. Letstalk.com, Inc. v. Infofirma, Ltd. c/o Domain Administrator, FA 1310279 (Nat. Arb. Forum April 21, 2010). As these issues have been repeatedly brought to the attention of CitizenHawk, this Panel admonishes CitizenHawk to take greater care in the future so that arbitration panels need not expend excessive time and effort making sense of a complaint’s submissions].
B. Respondent
Respondent failed to submit a Response in this proceeding.
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 asserts rights in the INTELIUS mark pursuant to Policy ¶ 4(a)(i) based on its registration of the mark with the USPTO (Reg. No. 3,096,294, filed Jan. 9, 2003 and registered May 23, 2006) and the OHIM (Reg. No. 3,262,219, filed June 9, 2003 and registered Nov. 16, 2004). Complainant’s registration of the mark is sufficient to confer rights in the mark under Policy ¶ 4(a)(i), dating back to the filing date of the trademark registration on January 9, 2003. See Hershey Co. v. Reaves, FA 967818 (Nat. Arb. Forum June 8, 2007) (finding that the complainant’s rights in the KISSES trademark through registration of the mark with the USPTO “date back to the filing date of the trademark application and predate [the] respondent’s registration”). This filing date is prior to the registration dates of both disputed domains. The Panel notes that UDRP precedent has established that a complainant does not need to own a trademark registration in the country of a respondent in order to establish rights in its mark under Policy ¶ 4(a)(i). See 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 alleges that the <ntelius.com> and <wwwintelius.com> domain names are confusingly similar to the INTELIUS mark for the purposes of Policy ¶ 4(a)(i). The Panel notes that the <ntelius.com> domain name removes the letter “i” from Complainant’s INTELIUS mark. Past panels have found a single-letter insufficient to negate confusing similarity. See Reuters Ltd. v. Global Net 2000, Inc., D2000-0441 (WIPO July 13, 2000). The Panel also observes that the <wwwintelius.com> domain name merely adds the prefix “www” to the INTELIUS mark. Past panels have found that such an affixation does not distinguish a domain name from a mark. See 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 <ntelius.com> and <wwwintelius.com> domain names are confusingly similar to Complainant’s INTELIUS mark pursuant to Policy ¶ 4(a)(i).
Complainant claims Respondent has not been commonly known by the disputed domain names. The Panel notes that the WHOIS information lists “Domain Administrator” as the registrant of both disputed domain names. Complainant also claims it has not been affiliated with Respondent, nor has it authorized Respondent to make use of the INTELIUS mark. The Panel notes that past panels have found unsupportive WHOIS information, plus a lack of authorization by Complainant, to be strong evidence that a Respondent was not commonly known by a disputed domain name. 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 domain names, and the complainant had not authorized the respondent to register a domain name containing its registered mark). Therefore, the Panel holds that Respondent is not commonly known by the disputed domain names and has not established rights or legitimate interests in the disputed domain names under Policy ¶ 4(c)(ii).
Complainant also claims that Respondent is using the disputed domain names to redirect Internet users to a website featuring generic links to third-party websites, some of which directly compete with Complainant’s business. The Panel notes that past panels have found that the use of competing links did not demonstrate a bona fide offering of goods and services or a legitimate noncommercial fair use of a mark. 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”). Accordingly, the Panel finds that Respondent has not used the disputed domain names to make a bona fide offering of goods or services or a legitimate noncommercial or fair use, and fails to establish rights or legitimate interests under Policy ¶¶4(c)(i) and 4(c)(iii).
Thus, Complainant has also satisfied Policy ¶ 4(a)(ii).
Complainant contends that Respondent demonstrates bad faith registration and use under Policy ¶ 4(b)(iii) by using the <ntelius.com> and <wwwintelius.com> domain names to display links that compete with Complainant and disrupt its business. The Panel notes that past panels have found similar uses of competing links to be evidence of bad faith under Policy ¶ 4(b)(iii). 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)). Therefore, the Panel finds that Respondent registered and is using the disputed domain name in bad faith by disrupting the business of a competitor, pursuant to Policy ¶ 4(b)(iii).
Complainant also claims that Respondent is intentionally making use of domain names which are confusingly similar to Complainant’s INTELIUS mark in order to divert Internet users to Respondent’s websites, where it likely receives “click through” revenue.” The Panel notes that past panels have found similar diversionary tactics to indicate bad faith under 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).”). The Panel therefore finds that Respondent has registered and is using the disputed domain name in bad faith under Policy ¶ 4(b)(iv).
Finally, the Panel finds that Respondent is typosquatting, and that this is in itself evidence of bad faith registration and use 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] mark”.).
Thus, Complainant has also 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 <ntelius.com> and <wwwintelius.com> domain names be TRANSFERRED from Respondent to Complainant.
David A. Einhorn, Panelist
Dated: March 29, 2013
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