national arbitration forum

 

DECISION

 

Spark Networks USA, LLC v. Ai Zhenhua

Claim Number: FA1305001502171

PARTIES

Complainant is Spark Network USA, LLC (“Complainant”), represented by CitizenHawk, Inc., California, USA.  Respondent is Ai Zhenhua (“Respondent”), China.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <christianminge.com>, registered with Hangzhou Aiming Network Co., 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.

 

The Honourable Neil Anthony Brown QC as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum electronically on May 29, 2013; the National Arbitration Forum received payment on May 29, 2013. The Complaint was submitted in both English and Chinese.

 

On May 31, 2013, Hangzhou Aiming Network Co., Ltd confirmed by e-mail to the National Arbitration Forum that the <christianminge.com> domain name is registered with Hangzhou Aiming Network Co., Ltd and that Respondent is the current registrant of the name.  Hangzhou Aiming Network Co., Ltd has verified that Respondent is bound by the Hangzhou Aiming Network Co., 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 June 10, 2013, the Forum served the Chinese language Complaint and all Annexes, including a Chinese language Written Notice of the Complaint, setting a deadline of July 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@christianminge.com.  Also on June 10, 2013, the Chinese language 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 July 8, 2013, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed The Honourable Neil Anthony Brown QC 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

  1. Complainant

Complainant made the following contentions.

    1. Complainant, Spark Networks USA, LLC, 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 a trademark registration with the United States Patent and Trademark Office (“USPTO”) for the CHRISTIANMINGLE mark (Reg. No. 2,940,052, registered April 12, 2005).
    3. The disputed domain name is confusingly similar to Complainant’s mark because it differs by only a single character from Complainant’s mark. The <christianminge.com> domain name omits the letter “l.” The omission of one letter and inclusion of a generic top-level domain (“gTLD”) does not adequately distinguish a disputed domain name.
    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 used in bad faith.

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

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

                                        iii.    Respondent’s typosquatting behavior is, in and of itself, evidence of bad faith.

B. Respondent

Respondent failed to submit a Response in this proceeding.

 

FINDINGS

 

1.    Complainant is a leading provider of online personals in the United States and internationally.

2.    Complainant is the owner of a trademark registration with the United States Patent and Trademark Office (“USPTO”) for the CHRISTIANMINGLE mark (Reg. No. 2,940,052, registered April 12, 2005).

3.    The earliest date on which Respondent registered the disputed domain name was August 28, 2012.

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

 

LANGUAGE OF THE PROCEEDING

The Panel notes that the Registration Agreement is written in Chinese, thereby making the language of the proceedings in Chinese. Pursuant to Rule 11(a), the Panel determines that the language requirement has been satisfied through the Chinese language Complaint and Commencement Notification, and, absent a Response, determines that the remainder of the proceedings may be conducted in English.

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

The first question that arises is whether Complainant has rights in a trademark or service mark. Complainant contends that it is a leading provider of online personals in the United States and internationally. Complainant argues that its communities offer convenient and safe places for likeminded singles to connect. Complainant claims that its websites enable adults to meet online and participate in a community, become friends, date, form a long-term relationship or marry. Complainant alleges that it is the owner of a trademark registration with the USPTO for the CHRISTIANMINGLE mark (Reg. No. 2,940,052, registered April 12, 2005). See Exhibit E. Although Respondent appears to reside in China, the Panel finds that Policy ¶ 4(a)(i) does not require Complainant to register the trademark in the country in which Respondent resides so long as Complainant demonstrates rights in the mark in some jurisdiction. 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). Thus, the Panel determines that Complainant’s registration of the CHRISTIANMINGLE mark with the USPTO sufficiently proves its rights in the mark under Policy ¶ 4(a)(i). See Metro. Life Ins. Co. v. Bonds, FA 873143 (Nat. Arb. Forum Feb. 16, 2007) (finding that a USPTO trademark registration adequately demonstrates a complainant’s rights in a mark under Policy ¶ 4(a)(i)).

 

The second question that arises is whether the disputed domain name is identical or confusingly similar to Complainant’s CHRISTIANMINGLE trademark.

Complainant contends that the <christianminge.com> domain name is confusingly similar to Complainant’s mark because it differs by only a single character from Complainant’s mark. Complainant argues that the <christianminge.com> domain name omits the letter “l.” Complainant asserts that the omission of one letter and inclusion of a gTLD does not adequately distinguish a disputed domain name. The Panel finds that Respondent’s removal of a letter does not distinguish Respondent’s domain name from Complainant’s mark pursuant to 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 also finds that Respondent’s addition of a gTLD is inconsequential to a Policy ¶ 4(a)(i) analysis. See Countrywide Fin. Corp. v. Johnson & Sons Sys., FA 1073019 (Nat. Arb. Forum Oct. 24, 2007) (holding that the addition of the generic top-level domain (“gTLD”) “.com” was irrelevant). Accordingly, the Panel concludes that Respondent’s <christianminge.com> domain name is confusingly similar to Complainant’s CHRISTIANMINGLE mark under Policy ¶ 4(a)(i).

 

Complainant has thus made out the first of the three elements that it must establish.

 

Rights or Legitimate Interests

It is now well established 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); 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.”).

 

The Panel finds that Complainant has made out a prima facie case that arises from the following considerations:

 

(a) Respondent has chosen to take Complainant’s CHRISTIANMINGLE trademark and to use it in its domain name, making only a slight spelling alteration;

(b)  Respondent has used the 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;

(c) Respondent has engaged in these activities without the consent or approval of Complainant;

(d) Complainant argues that Respondent has not been commonly known by the disputed domain name. Complainant asserts that Respondent is not sponsored by or legitimately affiliated with Complainant in any way. Complainant alleges that it has not given Respondent permission to use Complainant’s mark in a domain name. Prior panels have found that where the WHOIS information suggests a respondent is not commonly known by the disputed domain name and complainant has not authorized or licensed respondent to register domain names incorporating complainant’s mark, respondent is not commonly known by the domain name under Policy ¶ 4(c)(ii). 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 finds that Respondent is not commonly known by the <christianminge.com> domain name pursuant to Policy ¶ 4(c)(ii);

(e)Complainant claims 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 observes that Respondent’s <christianminge.com> domain name resolves to a hyperlink directory, featuring competing hyperlinks titled “Christian Singles Online,” “Meet Christian Singles,” “Christian Singles 40+,” and others. See Exhibit H. Complainant asserts that Respondent presumably receives pay-per-click fees from these linked websites. As the Panel finds that Respondent is using the domain name to provide competing hyperlinks, the Panel finds that Respondent is not using the <christianminge.com> domain name for a bona fide offering of goods and services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See ALPITOUR S.p.A. v. Albloushi, FA 888651 (Nat. Arb. Forum Feb. 26, 2007) (rejecting the respondent’s contention of rights and legitimate interests in the <bravoclub.com> domain name because the respondent was merely using the domain name to operate a website containing links to various competing commercial websites, which the panel did not find to be a use in connection with 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)).

 

All of these matters go to make out the prima facie case against Respondent. As Respondent has not filed a Response or attempted by any other means to rebut the prima facie case against it, the Panel finds that Respondent has no rights or legitimate interests in the disputed domain name.

 

Complainant has thus made out the second of the three elements that it must establish.

 

Registration and Use in Bad Faith

It is clear that to establish bad faith for the purposes of the Policy, Complainant must show that the disputed domain name was registered in bad faith and has been used in bad faith. It is also clear that the criteria set out in Policy ¶ 4(b) for establishing bad faith are not exclusive, but that Complainants in UDRP proceedings may also rely on conduct that is bad faith within the generally accepted meaning of that expression.

 

Having regard to those principles, the Panel finds that the disputed domain name was registered and used in bad faith. That is so for the following reasons.

 

First, Complainant contends that Respondent’s advertised pay-per-click links displayed on the resolving website promote products that compete with Complainant. The Panel observes that Respondent’s <christianminge.com> domain name resolves to a website featuring competing hyperlinks such as “Christian Singles Online,” “Meet Christian Singles,” “Christian Singles 40+,” and more. See Exhibit H. Complainant asserts that these links divert potential customers away from Complainant to third-party websites, which disrupts Complainant’s business. In Compania Mexicana de Aviacion, S.A. de C.V. v. Bigfoot Ventures LLC, FA 1195961 (Nat. Arb. Forum July 14, 2008), the panel found that “Respondent’s disputed domain name resolved to a parking website which provided click through revenue to Respondent and which displayed links to travel-related products and services that directly competed with Complainant’s business. Accordingly, Respondent’s competing use of the disputed domain name is additional evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iii).” Consequently, the Panel determines that Respondent’s use of the <christianminge.com> domain name disrupts Complainant’s business, demonstrating bad faith use and registration pursuant to Policy ¶ 4(b)(iii).

 

Secondly, Complainant argues that Respondent has registered and used the disputed domain name in bad faith by using it to attract and mislead consumers for its own profit. The Panel notes that Respondent’s disputed domain name provides competing hyperlinks for dating websites. See Exhibit H. Complainant alleges that Respondent’s setting up of a click-through website for which it receives revenue for each misdirected Internet user demonstrates bad faith. The Panel agrees that Respondent’s use of the <christianminge.com> domain name to attract Internet users to Respondent’s site, where Respondent generates a commercial gain from the provision of competing hyperlinks, constitutes bad faith use and registration pursuant to Policy ¶ 4(b)(iv). See Associated Newspapers Ltd. v. Domain Manager, FA 201976 (Nat. Arb. Forum Nov. 19, 2003) (“Respondent's prior use of the <mailonsunday.com> domain name is evidence of bad faith pursuant to Policy ¶ 4(b)(iv) because the domain name provided links to Complainant's competitors and Respondent presumably commercially benefited from the misleading domain name by receiving ‘click-through-fees.’”).

 

Thirdly, Complainant asserts that Respondent’s typosquatting behavior is, in and of itself, evidence of bad faith. The Panel notes that Respondent’s domain includes Complainant’s CHRISTIANMINGLE mark and merely deletes the letter “l” from the mark, which may be considered a common typographical error. The Panel therefore holds that Respondent has engaged in typosquatting, showing bad faith use and registration under Policy ¶ 4(a)(iii). 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).”).

 

Fourthly, in addition and having regard to the totality of the evidence, the Panel finds that, in view of Respondent’s registration of the disputed domain name using the Complainant’s trademarks in the manner described above and its subsequent use of the disputed domain name, Respondent registered and used it in bad faith within the generally accepted meaning of that expression.

 

Complainant has thus made out the third of the three elements that it must establish.

 

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 <christianminge.com> domain name be TRANSFERRED from Respondent to Complainant.

 

 

The Honourable Neil Anthony Brown QC

Panelist

Dated: July 10, 2013

 

 

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