national arbitration forum

 

DECISION

 

Spark Networks USA, LLC v. Wildsites.com

Claim Number: FA1303001488330

PARTIES

Complainant is Spark Networks USA, LLC (“Complainant”), represented by CitizenHawk, Inc., California, USA.  Respondent is Wildsites.com (“Respondent”), California, USA.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <christianmigle.com>, registered with Fabulous.Com Pty Ltd.

 

PANEL

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.

 

Darryl C. Wilson, as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum electronically on March 1, 2013; the National Arbitration Forum received payment on March 1, 2013.

 

On March 4, 2013, Fabulous.Com Pty Ltd confirmed by e-mail to the National Arbitration Forum that the <christianmigle.com> domain name is registered with Fabulous.Com Pty Ltd and that Respondent is the current registrant of the names.  Fabulous.Com Pty Ltd has verified that Respondent is bound by the Fabulous.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 March 11, 2013, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 1, 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@christianmigle.com.  Also on March 11, 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 April 9, 2013, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Darryl C. Wilson, 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 name be transferred from Respondent to Complainant.

 

PARTIES' CONTENTIONS

A. Complainant

    1. Complainant, Spark Networks USA, LLC, is a subsidiary of a publically held Delaware corporation, Spark Networks, Inc., which is a leading provider of online personals in the United States and internationally. Complainant’s communities offer convenient and safe places for likeminded singles to connect. Complainant’s websites enable adults to meet online and participate in a community, become friends, date, form a long-term relationship, or marry.
    2. Complainant is the owner of trademark registrations with the United States Patent and Trademark Office (“USPTO”) for the CHRISTIANMINGLE mark (Reg. No. 2,940,052, registered April 12, 2005).
    3. Respondent’s <christianmigle.com> domain name is confusingly similar to Complainant’s mark because it differs by only a single character from Complainant’s CHRISTIANMINGLE mark.
    4. Respondent has no rights or legitimate interests in respect of the disputed domain name.

                                          i.    Respondent has not been commonly known by the disputed domain name.

                                         ii.    Respondent is using the disputed domain name to redirect unsuspecting Internet users to a website featuring generic links to third-party websites, some of which directly compete with Complainant’s business.

    1. The domain name should be considered as having been registered and being used in bad faith.

                                          i.    Respondent’s advertised pay-per-click links displayed on the resolving websites promotes products that compete with Complainant.

                                         ii.    Respondent has registered and used the disputed domain name by using the disputed domain name to attract and mislead consumers for its own profit.

    1. The earliest date on which Respondent registered the disputed domain name was September 29, 2004.

 

B. Respondent

Respondent failed to submit a Response in this proceeding.

 

FINDINGS

Complainant is Sparks Networks USA, LLC who list its address as Beverly Hills, CA, USA. Complainant owns numerous USA registrations for marks that consist of or include the word CHRISTIANMINGLE. Complainant registered these marks in connection with online computer dating services. Complainant also owns the website and domain name associated with its domain name <christianmingle.com>.

 

Respondent is Wildsites.com who list its address as North Hollywood, CA, USA. Respondent’s registrar list its address as Fortitude Valley, QLD, Australia. Respondent registered the disputed domain name on or about September 29, 2004.

 

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, Spark Networks USA, LLC, argues that it is a subsidiary of a publically held Delaware corporation, Spark Networks, Inc., which is a leading provider of online personals in the United States and internationally. Complainant contends that its communities offer convenient and safe places for likeminded singles to connect. Complainant asserts that its websites enable adults to meet online and participate in a community, become friends, date, form a long-term relationship, or marry. Complainant claims that it is the owner of trademark registrations with the USPTO for the CHRISTIANMINGLE mark (Reg. No. 2,940,052, registered April 12, 2005). See Complainant’s Exhibit E. The Panel  notes that Respondent appears to reside within the United States. The Panel finds that Complainant’s registration of the CHRISTIANMINGLE mark with the USPTO demonstrates its rights in the mark pursuant to Policy ¶ 4(a)(i). See Expedia, Inc. v. Tan, FA 991075 (Nat. Arb. Forum June 29, 2007) (“As the [Complainant’s] mark is registered with the USPTO, Complainant has met the requirements of Policy ¶ 4(a)(i).”).

 

Complainant claims that Respondent’s <christianmigle.com> domain name is confusingly similar to Complainant’s mark because it differs by only a single character from Complainant’s CHRISTIANMINGLE mark. The Panel notes that Respondent removes the letter “n” from Complainant’s CHRISTIANMINGLE mark. The Panel finds that the removal of a letter does not eliminate confusing similarity under Policy ¶ 4(a)(i). See Pfizer Inc. v. BargainName.com, D2005-0299 (WIPO Apr. 28, 2005) (holding that the <pfzer.com> domain name was confusingly similar to the complainant’s PFIZER mark, as the respondent simply omitted the letter “i”). The Panel finds that although Respondent adds the generic top-level domani (“gTLD”) “.com” to the disputed domain, the addition of a gTLD is irrelevant under Policy ¶ 4(a)(i) analysis. See Bank of Am. Corp. v. McCall, FA 135012 (Nat. Arb. Forum Dec. 31, 2002) (holding that attaching a gTLD  is “unable to create a distinction capable of overcoming a finding of confusing similarity”). The Panel finds that Respondent’s <christianmigle.com> domain name is confusingly similar to Complainant’s CHRISTIANMINGLE mark under Policy ¶ 4(a)(i).

 

Respondent makes no contentions with regards to Policy ¶ 4(a)(i). 

 

The Complainant has proven this element.

 

Rights or Legitimate Interests

The Panel recognizes that 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). The Complainant has met this burden.

 

Complainant contends that Respondent has not been commonly known by the disputed domain name. The Panel notes that the WHOIS information identifies “Wildsites.com” as the registrant of the disputed domain name. See Complainant’s Exhibit I. Complainant argues that Respondent is not sponsored by or legitimately affiliated with Complainant in any way. Complainant asserts that it has not given Respondent permission to use Complainant’s mark in the a domain name. The Panel finds that Respondent is not commonly known by the disputed domain name pursuant to 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).

 

Complainant asserts that Respondent is using the disputed domain name to redirect unsuspecting 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 Respondent’s disputed domain name resolves to a web directory website, providing competing links titled “Top 10 Adult Dating 2013,” “Looking for a Booty Call?,” “Online dating,” and others. See Complainant’s Exhibit H. The Panel finds that Respondent’s use of the disputed domain name to provide competing links is not a Policy ¶ 4(c)(i) bona fide offering of goods and services or a Policy ¶ 4(c)(iii) noncommercial or fair use. See H-D Michigan Inc. v. Buell, FA 1106640 (Nat. Arb. Forum Jan. 2, 2008) (finding that, because the “[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 offered under [the complainant’s] mark,” the respondent is not using the disputed domain names for a bona fide offering of goods or services or a legitimate noncommercial or fair use).

 

Respondent makes no contentions with regards to Policy ¶ 4(a)(ii).

 

Because the Respondent has not provided a response to this action the Respondent has failed to meet its burden regarding proof of any rights or legitimate interest in the disputed domain. 

 

The Complainant has proven this element.

 

Registration and Use in Bad Faith

Complainant contends that Respondent’s advertised pay-per-click links displayed on the resolving websites promote products that compete with Complainant. The Panel again notes that Respondent’s disputed domain name resolves to a hyperlink directory website, providing competing links titled “Top 10 Adult Dating 2013,” “Looking for a Booty Call?,” “Online dating,” and others. See Complainant’s Exhibit H. The Panel finds that Respondent’s use of the domain name to provide links to Complainant’s competitors evidences bad faith use and registration 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)).

 

Respondent makes no contentions with regards to Policy ¶ 4(a)(iii).

 

The Complainant has proven this element.

 

DECISION

Because the Complainant has established all three elements required under the ICANN Policy, the Panel concludes that Complainant’s requested relief shall be GRANTED.

 

Accordingly, it is Ordered that the <christianmigle.com> domain name be TRANSFERRED from Respondent to Complainant.

 

 

Darryl C. Wilson, Panelist

Dated: April 22, 2013

 

 

 

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