national arbitration forum

 

DECISION

 

RingCentral, Inc. v. Above.com Domain Privacy

Claim Number: FA1302001484783

PARTIES

Complainant is RingCentral, Inc. (“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 <ringcentrel.com> and <wwwringcentral.com>, registered with ABOVE.COM PTY LTD.

 

PANEL

The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.

 

Tyrus R. Atkinson, Jr., as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum electronically on February 12, 2013; the National Arbitration Forum received payment on February 12, 2013.

 

On February 12, 2013, ABOVE.COM PTY LTD. confirmed by e-mail to the National Arbitration Forum that the <ringcentrel.com> and <wwwringcentral.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 February 13, 2013, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 5, 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@ringcentrel.com, postmaster@wwwringcentral.com.  Also on February 13, 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 21, 2013, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Tyrus R. Atkinson, Jr., 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 names be transferred from Respondent to Complainant.

 

PARTIES' CONTENTIONS

A. Complainant

Policy ¶ 4(a)(i)

Policy ¶ 4(a)(ii)

Policy ¶ 4(a)(iii)

 

B. Respondent

Respondent failed to submit a Response in this proceeding.

 

FINDINGS

1.     Complainant has rights in its RINGCENTRAL mark.

2.    Respondent’s <ringcentrel.com> and <wwwringcentral.com> domain names are confusingly similar to Complainant’s mark.

3.    Respondent has no rights to or legitimate interests in the domain names.

4.    Respondent registered and used the domain names 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 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

 

Complainant claims that it owns rights for the RINGCENTRAL mark with the USPTO and that it uses the mark in the provision of telecommunications services.  See Reg. No. 3,302,115 registered on Oct. 2, 2007.  The Panel  agrees that USPTO registration satisfies Policy ¶ 4(a)(i) even though Respondent is in Australia.  See W.W. Grainger, Inc. v. Above.com Domain Privacy, FA 1334458 (Nat. Arb. Forum Aug. 24, 2010) (Stating that “the Panel finds that USPTO registration is sufficient to establish these [Policy ¶ 4(a)(i)] rights even when Respondent lives or operates in a different country.”).

 

Complainant further argues that Respondent’s <ringcentrel.com> and <wwwringcentral.com> domain names are confusingly similar to Complainant’s mark.  Complainant contends that the domain names embody slight alterations of the mark.  Complainant argues that the addition of the gTLD “.com” is not relevant.  The Panel notes that the <ringcentrel.com> domain name is formed by replacing the letter “a” in the RING CENTRAL mark with the letter “e,” and the Panel agrees that this alteration is meaningless.  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 Panel notes that Respondent added “www” to the mark in forming the <wwwringcentral.com> domain name, and the Panel agrees that the addition of “www” enhances confusing similarity.  See Bank of Am. Corp. v. InterMos, FA 95092 (Nat. Arb. Forum Aug. 1, 2000) (finding that the respondent’s domain name <wwwbankofamerica.com> is confusingly similar to the complainant’s registered trademark BANK OF AMERICA because it “takes advantage of a typing error (eliminating the period between the www and the domain name) that users commonly make when searching on the Internet”).  The Panel concludes that because a gTLD is not relevant to this analysis, both domain names are confusingly similar to the CENTRALRING mark under Policy ¶ 4(a)(i).  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).

 

Rights or Legitimate Interests

 

Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name 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 argues that Respondent has not been commonly known by the <ringcentrel.com> and <wwwringcentral.com> domain names.  Complainant avers that Respondent’s WHOIS information illustrates that it is known by something other than the domain names.  Complainant avows that it has not otherwise authorized or permitted Respondent to use its marks in domain names.  The Panel may note that both disputed domain names list “Above.com Domain Privacy” as their registrant.  The Panel agrees that, based on the evidence, there is absolutely no similarity between Respondent’s name and the disputed domain names, and therefore the Panel agrees that Respondent is not commonly known by the disputed domain names under Policy ¶ 4(c)(ii).  See M. Shanken Commc’ns v. WORLDTRAVELERSONLINE.COM, FA 740335 (Nat. Arb. Forum Aug. 3, 2006) (finding that the respondent was not commonly known by the <cigaraficionada.com> domain name under Policy ¶ 4(c)(ii) based on the WHOIS information and other evidence in the record).

 

The Panel notes that Complainant elected to make no arguments under Policy ¶¶ 4(c)(i),(iii).  The Panel nonetheless notes that the <ringcentrel.com> and <wwwringcentral.com> domain names resolve to generic websites dominated by hyperlink listings to an array of services purporting to offer telephone and other telecommunication numbers.  See Complainant’s Ex. H.  The Panel agrees that there is no bona fide offering under Policy ¶ 4(c)(i) when all that is offered on these domain names is a series of commercial hyperlinks to Complainant’s competitors, and the Panel agrees that it is only logical to exclude a commercial hyperlink list from Policy ¶ 4(c)(iii)’s legitimate noncommercial or fair uses of a domain name.  See United Servs. Auto. Ass’n v. Savchenko, FA 1105728 (Nat. Arb. Forum Dec. 12, 2007) (“The disputed domain name, <usaa-insurance.net>, currently resolves to a website displaying Complainant’s marks and contains links to Complainant’s competitors.  The Panel finds this to be neither a bona fide offering of goods or services pursuant to Policy ¶4(c)(i) nor a legitimate noncommercial or fair use pursuant to Policy ¶4(c)(iii).”).

 

Complainant argues that Respondent is engaging in typosquatting, a practice intended to take advantage of Internet users’ typographical errors in attempting to reach websites associated with Complainant’s mark.   The Panel agrees that there is typosquatting in this case, and finds that Respondent’s typosquatting behavior defeats any rights or legitimate interests under Policy ¶ 4(a)(ii).  See LTD Commodities LLC v. Party Night, Inc., FA 165155 (Nat. Arb. Forum Aug. 14, 2003) (finding that the <ltdcommadities.com>, <ltdcommmodities.com>, and <ltdcommodaties.com> domain names were intentional misspellings of Complainant's LTD COMMODITIES mark and this “‘typosquatting’ is evidence that Respondent lacks rights or legitimate interests in the disputed domain names”).

 

Registration and Use in Bad Faith

 

Complainant asserts that Respondent is using the <ringcentrel.com> and <wwwringcentral.com> domain names to disrupt Complainant’s business in bad faith.  Complainant argues that Respondent is promoting competing goods on the disputed domain name, thereby diverting Complainant’s potential customers to Complainant’s competition.  The Panel notes that both disputed domain names do resolve to websites dedicated to the solicitation of hyperlinks offering telecommunication services.  See Complainant’s Ex. H.  The Panel agrees that bad faith use and registration under Policy ¶ 4(b)(iii) may be found here, where Respondent is intentionally using the confusingly similar domain names to send Complainant’s potential customers to Complainant’s competitors.  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)).

 

Complainant further argues that Respondent is using the domain name to confuse Internet users into believing that the click-through advertising on the domain name’s resolving website is affiliated with, or sponsored by, Complainant. Complainant believes that Respondent is presumably receiving referral fees each time an Internet user mistakenly travels through the website’s hyperlinks.  The Panel again notes that both domain names solicit various telecommunications services.  See Complainant’s Ex. H.  The Panel agrees that Respondent has registered and is using these domain names in bad faith under Policy ¶ 4(b)(iv), as it seeks to merely confuse Internet users into believing they have arrived at Complainant’s website (or a website sponsored by Complainant) only to be shuttled to Complainant’s competitors so that Respondent can acquire click-through revenue.  See AltaVista Co. v. Krotov, D2000-1091 (WIPO Oct. 25, 2000) (finding bad faith under Policy ¶ 4(b)(iv) where the respondent’s domain name resolved to a website that offered links to third-party websites that offered services similar to the complainant’s services and merely took advantage of Internet user mistakes).

 

Complainant avers that Respondent’s typosquatting is evidence of bad faith in and of itself.  The Panel agrees that these domain names are typosquatted, and  concludes that Respondent registered and used the domain names in bad faith under Policy ¶ 4(a)(iii), as the practice of typosquatting is inherently deceptive, seeking only to prey on the common mistakes of Internet users.  See Zone Labs, Inc. v. Zuccarini, FA 190613 (Nat. Arb. Forum Oct. 15, 2003) (“Respondent’s registration and use of [the <zonelarm.com> domain name] that capitalizes on the typographical error of an Internet user is considered typosquatting. Typosquatting, itself is evidence of bad faith registration and use pursuant to 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 <ringcentrel.com> and <wwwringcentral.com> domain names be TRANSFERRED from Respondent to Complainant.

 

 

Tyrus R. Atkinson, Jr., Panelist

Dated:  April 2, 2013

 

 

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