Spark Networks USA, LLC v. PrivacyProtect.org / Domain Admin
Claim Number: FA1307001509253
Complainant is Spark Networks USA, LLC (“Complainant”), represented by CitizenHawk, Inc., California, USA. Respondent is PrivacyProtect.org / Domain Admin (“Respondent”), Australia.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <christrianmingle.com>, registered with PDR LTD. D/B/A PUBLICDOMAINREGISTRY.COM.
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.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on July 11, 2013; the National Arbitration Forum received payment on July 11, 2013.
On July 12, 2013, PDR LTD. D/B/A PUBLICDOMAINREGISTRY.COM confirmed by e-mail to the National Arbitration Forum that the <christrianmingle.com> domain name is registered with PDR LTD. D/B/A PUBLICDOMAINREGISTRY.COM and that Respondent is the current registrant of the name. PDR LTD. D/B/A PUBLICDOMAINREGISTRY.COM has verified that Respondent is bound by the PDR LTD. D/B/A PUBLICDOMAINREGISTRY.COM 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 August 6, 2013, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 26, 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@christrianmingle.com. Also on August 6, 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 September 4, 2013, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Sandra J. Franklin 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 makes the following assertions:
1. Respondent’s <christrianmingle.com> domain name is confusingly similar to Complainant’s CHRISTIANMINGLE mark.
2. Respondent does not have any rights or legitimate interests in the <christrianmingle.com> domain name.
3. Respondent registered and uses the <christrianmingle.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant owns the CHRISTIANMINGLE mark and has registered it with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 2,940,052, registered April 12, 2005).
Respondent registered the <christrianmingle.com> domain name on September 23, 2007, and uses it to resolve to a website that promotes hyperlinks to Complainant’s competitors.
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.”).
The Panel finds that Complainant has sufficiently established its rights in the CHRISTIANMINGLE mark under Policy ¶ 4(a)(i) through its trademark registration with the USPTO, despite the fact that Respondent appears to reside in Australia. Previous panels have held that a complainant’s registration of a mark with the USPTO sufficiently establishes the complainant’s rights in the mark pursuant to 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.”). Previous panels have also held that a complainant need not register its mark in the respondent’s country of residency to establish rights in the mark in accordance with the Policy. 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).
Respondent’s <christrianmingle.com> domain name is confusingly similar to its CHRISTIANMINGLE mark, because it simply adds the letter “r.” Previous panels have determined that a domain name’s insertion of a single character does not sufficiently distinguish the domain name from a complainant’s mark under Policy ¶ 4(a)(i). See Microsoft Corp. v. Domain Registration Philippines, FA 877979 (Nat. Arb. Forum Feb. 20, 2007) (finding the respondent’s <microssoft.com> domain name to be confusingly similar to the complainant’s MICROSOFT mark because they differ by only one letter, and “such a small alteration is insufficient to avoid a finding of confusing similarity under Policy ¶ 4(a)(i)”). Panels also routinely find that a domain name’s inclusion of a gTLD such as “.com” is irrelevant for the purpose of analyzing whether the domain name is confusingly similar to a mark under Policy ¶ 4(a)(i). See Isleworth Land Co. v. Lost in Space, SA, FA 117330 (Nat. Arb. Forum Sept. 27, 2002) (“[I]t is a well established principle that generic top-level domains are irrelevant when conducting a Policy ¶ 4(a)(i) analysis.”). The Panel finds that the <christrianmingle.com> domain name is confusingly similar to Complainant’s mark.
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(i).
Once Complainant makes a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), 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 alleges that Respondent is not commonly known by its <christrianmingle.com> domain name, because the WHOIS information identifies the registrant of <christrianmingle.com> as “PrivacyProtect.org / Domain Admin,” and Complainant has not authorized Respondent to use its CHRSTIANMINGLE mark. Previous panels have found that a respondent is not commonly known by a disputed domain name where there is no evidence in the record, including the WHOIS information, to suggest that the respondent is commonly known by the domain name and the complainant has not authorized the respondent to use its mark. 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). The Panel similarly finds that Respondent is not commonly known as <christrianmingle.com> under Policy ¶ 4(c)(ii).
Complainant next alleges that Respondent’s use of the disputed domain name is not protected as a bona fide offering of goods or services under Policy ¶ 4(c)(i) or as a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii), because the disputed domain name promotes third-party websites, some of which compete with Complainant in the online dating and online Christian dating industries. The Panel notes a screenshot of the website resolving from <christrianmingle.com>, which displays hyperlinks to various third-party websites, some of which offer dating services and chat rooms). In H-D Michigan Inc. v. Buell, FA 1106640 (Nat. Arb. Forum Jan. 2, 2008), the panel held that because the respondent’s disputed domain names resolved to a website featuring a series of 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 did not use the disputed domain names for a bona fide offering of goods or services or for a legitimate noncommercial or fair use. The Panel finds that Respondent’s use of the <christrianmingle.com> domain name is not protected under Policy ¶¶ 4(c)(i) or 4(c)(iii).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
Respondent has demonstrated bad faith under Policy ¶ 4(b)(iii) by using the disputed domain name to promote hyperlinks to Complainant’s competitors, which diverts potential customers away from Complainant. See H-D Michigan Inc. v. Buell, FA 1106640 (Nat. Arb. Forum Jan. 2, 2008), where the panel found that a respondent’s use of the disputed domain names to resolve to websites promoting links to the complainant’s competitors was evidence of the respondent’s bad faith disruption pursuant to Policy ¶ 4(b)(iii).
Complainant contends that the disputed domain name takes advantage of Complainant’s well-known CHRISTRIANMINGLE mark to mislead Internet users seeking the online dating services provided under Complainant’s mark, and is presumably receiving click-through fees for its promotion of hyperlinks to third-party competitors of Complainant. The Panel agrees and finds that Respondent has used the <christrianmingle.com> domain name for inappropriate commercial gain, which evidences Respondent’s bad faith pursuant to Policy ¶ 4(b)(iv). See Associated Newspapers Ltd. v. Domain Manager, FA 201976 (Nat. Arb. Forum Nov. 19, 2003), where a previous panel similarly held that the respondent’s use of the disputed domain name to provide links to the complainant’s competitors was evidence of bad faith under Policy ¶ 4(b)(iv), because respondent “presumably commercially benefited from the misleading domain name by receiving ‘click-through fees.’”
Respondent’s registration and use of <christrianmingle.com> constitutes typosquatting, as the domain name differs from Complainant’s by one letter, itself is evidence of bad faith under Policy ¶ 4(a)(iii). See Canadian Tire Corp. v. domain adm’r no.valid.email@worldnic.net 1111111111, D2003-0232 (WIPO May 22, 2003), where the panel found that the respondent registered and used the disputed domain name in bad faith because the respondent “created ‘a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the [r]espondent’s web site or location’ . . . through [r]espondent’s persistent practice of ‘typosquatting.’”
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <christrianmingle.com> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: September 11, 2013
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