Provide Commerce, Inc. v. PPA Media Services / Ryan G Foo
Claim Number: FA1302001484933
Complainant is Provide Commerce, Inc. (“Complainant”), represented by CitizenHawk, Inc., California, USA. Respondent is PPA MEDIA SERVICES / RYAN G FOO.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <cherrymoonsfarms>, <oersonalcreations.com>, <persionalcreations.com>, <persomalcreations.com>, <personalccreations.com>, <personalcreatiions.com>, <personalcreationa.com>, <personalcreationss.com>, <personalcreeations.com>, <personalcrrations.com>, <personalcrreations.com>, <personalcrwations.com>, <perssonalcreations.com>, <ptoflowers.com> , and <redevalope.com> all registered with Internet.Bs Corp.
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.
Paul M. DeCicco, as Panelist.
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 14, 2013 and on February 27, 2013, Internet.Bs Corp. confirmed by e-mail to the National Arbitration Forum that the <oersonalcreations.com>, <persionalcreations.com>, <persomalcreations.com>, <personalccreations.com>, <personalcreatiions.com>, <personalcreationa.com>, <personalcreationss.com>, <personalcreeations.com>, <personalcrrations.com>, <personalcrreations.com>, <personalcrwations.com>, <perssonalcreations.com>, <cherrymoonsfarms.com>, <ptoflowers.com>, and <redenvalope.com> domain names are registered with Internet.Bs Corp. and that Respondent is the current registrant of the names. Internet.Bs Corp. has verified that Respondent is bound by the Internet.Bs Corp. 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 March 1, 2013, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 21, 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@oersonalcreations.com, postmaster@persionalcreations.com, postmaster@persomalcreations.com, postmaster@personalccreations.com, postmaster@personalcreatiions.com, postmaster@personalcreationa.com, postmaster@personalcreationss.com, postmaster@personalcreeations.com, postmaster@personalcrrations.com, postmaster@personalcrreations.com, postmaster@personalcrwations.com, postmaster@perssonalcreations.com, postmaster@cherrymoonsfarms.com, postmaster@ptoflowers.com, postmaster@redenvalope.com. Also on March 1, 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 29, 2013, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Paul M. DeCicco 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
Complainant contends as follows:
Complainant is an online provider of gifts.
Complainant owns United States Patent and Trademark Office (“USPTO”) registration for its PERSONAL CREATIONS, CHERRY MOON FARMS, PRO FLOWERS and RED ENVELOPE marks.
Each of Respondent’s at-issue domain names is confusingly similar to one of Complainant’s at-issue marks. Each of the at-issue domain names is a one or two character typographical variant of one of Complainant’s trademarks, appended with the “.com” top level domain name. The Respondent is thus engaging in typosquatting
The relevant WHOIS records indicate that Respondent is not commonly known by any of the at-issue domain names.
Respondent is not sponsored by or legitimately affiliated with Complainant in any way nor authorized to use Complainant’s trademarks.
Complainant sent Respondent a cease and desist letter that was never responded to.
Respondent is using all or some of the at-issue 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. Respondent presumably receive pay-per-click fees from the linked websites. Such use of the domain names is neither a bona fide use nor a legitimate noncommercial or fair use ,of the domain names.
The at-issue domain names were each registered after Complainant acquired rights in its relevant trademark.
The domain names were each registered in bad faith since typosquatting is evidence of bad faith.
Bad faith is further shown by Respondent’s use of the at-issue domain names’ website to generate “click through” revenue from the misleading nature of the at-issue domain names pursuant to Policy ¶4 (a)(iv).
Respondent was a member of Complainant’s affiliate program. Respondent’s misleading use of the domain names is a direct violation of the affiliate agreement between the parties. The fact of the agreement makes it clear that Respondent was aware of Complainant’s trademark rights in the domain names when it registered them.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns USPTO trademark registrations for its CHERRY MOON FARMS, PERSONAL CREATIONS, PRO FLOWERS and RED ENVELOPE marks.
Respondent is not authorized to use Complainant’s trademarks in any capacity.
Respondent registered the at-issue domain names after Complainant acquired rights in its at-issue trademarks.
Respondent uses the domain names to address one or more websites which display pay-per-click links to various third party websites including some that compete with Complainant.
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.”).
Respondent’s at-issue domain names are each confusingly similar to a mark in which Complainant has rights.
Complainant demonstrates it has rights in a mark under Policy ¶ 4(a)(i) by showing it registered relevant trademarks with the USPTO. See Expedia, Inc. v. Tan, FA 991075 (Nat. Arb. Forum June 29, 2007) (“As the [complainant’s] mark is registered with the USPTO, [the] complainant has met the requirements of Policy ¶ 4(a)(i).”). It is insignificant to Policy ¶ 4(a)(i) analysis that Respondent may be located outside the jurisdiction of the trademark registrar. See Renaissance Hotel Holdings, Inc. v. Renaissance Cochin, FA 932344 (Nat. Arb. Forum Apr. 23, 2007) (finding that it does not matter whether the complainant has registered its trademark in the country in which the respondent resides, only that it can establish rights in some jurisdiction).
Each of the at-issue domain names is a common misspelling of one of Complainant’s at-issue trademark (less any space therein) and differs from its relevant mark only by one or more insignificant letters. See Intelius, Inc. v. Hyn, FA 703175 (Nat. Arb. Forum July 5, 2006) (finding the <intellus.com> domain name to be confusingly similar to the complainant’s INTELIUS mark because the domain name differed from the mark by one letter and was visually similar); see also 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)). Therefore, the Panel concludes that each of the at-issue domain names is confusingly similar to a mark in which Complainant has rights under Policy ¶ 4(a)(i).
Respondent lacks both rights and legitimate interests in respect of each of the at‑issue domain names. Respondent is not authorized to use Complainant’s trademarks in any capacity and, as discussed below, there are no Policy ¶4(c) circumstances from which the Panel might find that Respondent has rights or interests in respect of any the at‑issue domain names.
Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006). Since Respondent failed to respond, absent evidence of Policy ¶4(c) circumstances Complainant’s prima facie showing acts conclusively.
Respondent is not commonly known by any of the at-issue domain names within the meaning of Policy ¶ 4(c)(ii). WHOIS information identifies the domain names’ registrant as “PPA MEDIA SERVICES / RYAN G FOO” and there is no evidence before the Panel which suggests that Respondent is known by any of the at-issue domain names notwithstanding the contrary indication in the WHOIS information. Therefore, the Panel finds that Respondent is not commonly known by any of the at-issue domain names under Policy ¶ 4(c)(ii). See Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Nat. Arb. Forum July 17, 2006) (concluding that the respondent was not commonly known by the <coppertown.com> domain name where there was no evidence in the record, including the WHOIS information, suggesting that the respondent was commonly known by the disputed domain name).
Given the forgoing, Complainant satisfies its initial burden and conclusively demonstrates Respondent’s lack of rights and lack of interests in respect of each of the at-issue domain name pursuant to Policy ¶4(a)(ii).
The at‑issue domain names were each registered and are each being used in bad faith. As discussed below, Policy ¶4(b) bad faith circumstance are present, as well as non-Policy ¶4(b) circumstances, from which the Panel may conclude that Respondent acted in bad faith under Policy ¶4(a)(iii).
Respondent shows bad faith registration and use pursuant to Policy ¶ 4(b)(iii) in its attempt to disrupt Complainant’s business by posting competing hyperlinks on the website(s) addressed by the at-issue domain names. 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).”). The misleading nature of the at-issue domain names in conjunction with their use to address a website displaying competing links, further demonstrates bad faith under Policy ¶4 (a)(iv).
Respondent’s bad faith is also apparent given that Respondent surely had actual knowledge of Complainant’s rights in the at-issue trademarks at the time it registered the domain names. Respondent’s incorporation of common misspelling of Complainant’s trademarks in multiple domain names urges a finding that Respondent had actual knowledge of Complainant’s rights in the at-issue marks when it registered each of the confusingly similar domain names. Moreover, Respondent was a member of Complainant’s affiliate program and thus must have known of Complainant and its trademarks before it registered the domain names. Knowingly registering a domain name in which another has rights is evidence of bad faith registration and use under Policy ¶ 4(a)(iii). See Radio & Records, Inc. v. Nat’l Voiceover, FA 665235 (Nat. Arb. Forum May 9, 2006) (Respondent’s registration of the disputed domain name with knowledge of Complainant’s rights is further evidence of bad faith registration and use under Policy ¶ 4(a)(iii).”).
Finally, Respondent is typosquatting. Such behavior is, in and of itself, evidence of bad faith registration and use pursuant to Policy ¶ 4(a)(iii). See Nextel Commc’ns Inc. v. Geer, FA 477183 (Nat. Arb. Forum July 15, 2005) (finding that the respondent’s registration and use of the <nextell.com> domain name was in bad faith because the domain name epitomized typosquatting in its purest form).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <cherrymoonsfarms>, <oersonalcreations.com>, <persionalcreations.com>, <persomalcreations.com>, <personalccreations.com>, <personalcreatiions.com>, <personalcreationa.com>, <personalcreationss.com>, <personalcreeations.com>, <personalcrrations.com>, <personalcrreations.com>, <personalcrwations.com>, <perssonalcreations.com>, <ptoflowers.com>, and <redevalope.com> domain names be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: April 4, 2013
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