Spark Networks USA, LLC v. Domain Admin / Privacy Protect.org / ID#10760
Claim Number: FA1303001490663
Complainant is Spark Networks USA, LLC (“Complainant”), represented by Victor T. Fu of LKP Global Law, LLP, California, USA. Respondent is Domain Admin / PrivacyProtect.org / ID#10760 (“Respondent”), Australia.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <christianemingle.com>, registered with THE REGISTRY AT INFO AVENUE, LLC D/B/A SPIRIT COMMUNICATIONS.
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.
The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on March 19, 2013; the National Arbitration Forum received payment on March 20, 2013.
On March 25, 2013, THE REGISTRY AT INFO AVENUE, LLC D/B/A SPIRIT COMMUNICATIONS confirmed by e-mail to the National Arbitration Forum that the <christianemingle.com> domain name is registered with THE REGISTRY AT INFO AVENUE, LLC D/B/A SPIRIT COMMUNICATIONS and that Respondent is the current registrant of the name. THE REGISTRY AT INFO AVENUE, LLC D/B/A SPIRIT COMMUNICATIONS has verified that Respondent is bound by the THE REGISTRY AT INFO AVENUE, LLC D/B/A SPIRIT COMMUNICATIONS 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 27, 2013, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 16, 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@christianemingle.com. Also on March 27, 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 22, 2013, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed the Honorable Charles K. McCotter, Jr. (Ret.) 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 name be transferred from Respondent to Complainant.
A. Complainant
i. Complainant owns federal trademark registrations with the United States Patent and Trademark Office (“USPTO”) for the CHRISTIANMINGLE mark (Reg. No. 2,940,052 registered Apr. 12, 2005).
ii. Respondent registered the <christianemingle.com> domain name on January 11, 2013.
iii. The disputed domain name comprises Complainant’s mark in its entirety, with only the addition of the letter “e.”
i. Respondent is not commonly known by the disputed domain name.
ii. Respondent has not used the disputed domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial fair use. Rather, Respondent is attempting to deliberately confuse Internet users as to the source of its website in order to collect user account information.
i. Respondent has intentionally attempted to attract, for commercial gain, Internet users to Respondent’s web site by creating a likelihood of confusion with Complainant’s mark.
ii. The disputed domain name leads to a spoof site attempting to acquire user information.
iii. Respondent had actual notice of Complainant’s rights in the CHRISTIANMINGLE mark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant, Spark Networks USA, LLC, is engaged in the provision of online personals services worldwide. Complainant uses the CHRISTIANMINGLE mark in connection with its operation of an online dating service at <ChristianMingle.com>. Complainant owns federal trademark registrations with the United States Patent and Trademark Office (“USPTO”) for the CHRISTIANMINGLE mark (Reg. No. 2,940,052 registered Apr. 12, 2005).
Respondent, Domain Admin / Privacy Protect.org / ID#10760, registered the <christianemingle.com> domain name on January 11, 2013. The disputed domain name leads to a spoof site attempting to acquire user information.
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 has rights in the CHRISTIANMINGLE service mark based on its registration of the mark (Reg. No. 2,940,052 registered Apr. 12, 2005) with the USPTO for its online dating website. A complainant’s registration of a mark with the USPTO is sufficient to confer rights in the mark under Policy ¶ 4(a)(i). 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 BLIZZARD mark.”). Further, a complainant need not register its mark in the country of a respondent to demonstrate rights in the mark. 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). Therefore, the Panel finds that Complainant has established rights under ¶ 4(a)(i) in the CHRISTIANMINGLE mark.
Complainant claims that the <christianemingle.com> domain name is confusingly similar to its CHRISTIANMINGLE mark. The addition of a generic top-level domain (“gTLD”) such as “.com” is irrelevant to a Policy ¶ 4(a)(i) confusing similarity comparison. 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). The disputed domain name contains Complainant’s mark in its entirety, with only the addition of the letter “e.” Because such slight a slight misspelling is not enough to distinguish a domain name from a complainant’s mark, the Panel finds that the <christianemingle.com> domain name is confusingly similar to Complainant’s CHRISTIANMINGLE mark. 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).
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).
Complainant argues that Respondent is not commonly known by the <christianemingle.com> domain name and therefore has not demonstrated rights or legitimate interests in the disputed domain name under Policy ¶ 4(c)(ii). The WHOIS information shows that the registrant of the disputed domain name is listed as “Domain Admin / Privacy Protect.org.” The Panel finds that Respondent is not commonly known by the disputed domain name and has not established rights or legitimate interests 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).
Complainant also argues that the <christianemingle.com> domain name resolves to a website that spoofs Complainant’s own <christianmingle.com> site in order to confuse users as to the source and owner of the resolving site and collect user account information. An attempt by a respondent to pass itself off as a complainant is evidence that respondent is not making a bona fide offering or a legitimate use. See Kmart of Mich., Inc. v. Cone, FA 655014 (Nat. Arb. Forum April 25, 2006) (The panel found the respondent’s attempt to pass itself of as the complainant was not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii) when the respondent used the disputed domain name to present users with a website that was nearly identical to the complainant’s website). Therefore, the Panel finds that Respondent is not making a bona fide offering of goods or services or a legitimate noncommercial or fair use, and has not established rights or legitimate interests under Policy ¶¶ 4(c)(i) and 4(c)(iii).
Complainant argues that Respondent has intentionally attempted to attract, for commercial gain, Internet users to Respondent’s web site by creating a likelihood of confusion with Complainant’s mark, and that this is evidence of bad faith registration and use. Complainant notes that Respondent registered a domain name confusingly similar to Complainant’s mark and that it directs users to a site that looks similar to Complainant’s site. Bad faith exists under Policy ¶ 4(b)(iv) when a respondent is diverting users to its own website with a confusingly similar name and likely profiting. See DatingDirect.com Ltd. v. Aston, FA 593977 (Nat. Arb. Forum Dec. 28, 2005) (“the Panel finds the respondent is appropriating the complainant’s mark in a confusingly similar domain name for commercial gain, which is evidence of bad faith registration and use pursuant to Policy ¶4(b)(iv).”). Therefore the Panel inds that Respondent registered and is using the <christianemingle.com> domain name in bad faith pursuant to Policy ¶ 4(b)(iv).
Respondent also argues that Respondent is attempting to acquire personal information from Internet users by posing as Complainant, a practice commonly known as “phishing.” As Respondent is engaged in phishing, the Panel finds that Respondent registered and is using the disputed domain name in bad faith under Policy ¶ 4(a)(iii). See Capital One Fin. Corp. v. Howel, FA 289304 (Nat. Arb. Forum Aug. 11, 2004) (finding bad faith registration and use because the respondent used the domain name to redirect Internet users to a website that imitated the complainant’s website and to fraudulently acquire personal information from the complainant’s clients).
As Respondent had actual knowledge of Complainant's mark and rights, the Panel finds that Respondent registered the disputed domain name in bad faith under Policy ¶ 4(a)(iii). See Minicards Vennootschap Onder FIrma Amsterdam v. Moscow Studios, FA 1031703 (Nat. Arb. Forum Sept. 5, 2007) (finding that respondent registered a domain name in bad faith under Policy ¶ 4(a)(iii) after concluding that respondent "actual knowledge of Complainant's mark when registering the disputed domain name").
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <christianemingle.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: May 6, 2013
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