Spark Networks USA, LLC v. Mayni Efrem / ME New Enterprise
Claim Number: FA1307001509335
Complainant is Spark Networks USA, LLC (“Complainant”), represented by CitizenHawk, Inc., California, USA. Respondent is Mayni Efrem / ME New Enterprise (“Respondent”), India.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <christianmingle.co>, registered with Enom, Inc.
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.
Paul M. DeCicco, 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, Enom, Inc. confirmed by e-mail to the National Arbitration Forum that the <christianmingle.co> domain name is registered with Enom, Inc. and that Respondent is the current registrant of the name. Enom, Inc. has verified that Respondent is bound by the Enom, Inc. 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 July 22, 2013, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 12, 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@christianmingle.co. Also on July 22, 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 August 19, 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 name be transferred from Respondent to Complainant.
A. Complainant
Complainant contends as follows:
Complainant Spark Networks USA, LLC is a subsidiary of Spark Networks, Inc. Complainant provides online personal advertisements nationally and throughout the world. Complainant’s communities offer convenient and safe places for “likeminded singles” to connect and become friends, date, or form long-term relationships. Complainant started and maintains a network of religious, ethnic, special interest, and geographically targeted online single communities, among which <christianmingle.com> is included.
Complainant owns the CHRISTIANMINGLE trademark, for use in connection with computer dating services, through registration with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 2,940,052 registered April 12, 2005).
Respondent registered the <christianmingle.co> domain name on July 20, 2010, and the domain name is identical to Complainant’s CHRISTIANMINGLE mark, aside from the country-code top-level domain (“ccTLD”) “.co.”
Respondent uses the domain name to host a website that features generic links to third-party websites, some of which compete with Complainant’s business. Respondent is presumed to receive fees in exchange for hosting the hyperlinks. Respondent is not commonly known by the <christianmingle.co> domain name, and does not make a bona fide offering of goods or services or a legitimate noncommercial or fair use of the domain name.
Further, Respondent’s registration and use of the disputed domain name is in bad faith, as Respondent typosquats Complainant’s mark, disrupts Complainant’s business, and makes a commercial profit by hosting links that compete with Complainant’s business. Respondent has established a pattern of bad faith registration and use, as demonstrated by multiple UDRP decisions against Respondent involving unrelated domain names.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns a USPTO trademark registration for the CHRISTIANMINGLE mark.
Complainant’s trademark rights in CHRISTIANMINGLE predate Respondent’s registration of the at-issue domain name.
WHOIS information for the at-issue domain name identifies a party other than CHRISTIANMINGLE as the domain name’s registrant.
Respondent is not authorized to use Complainant’s trademark.
Respondent uses the at-issue domain name to host a website that features generic links to third-party websites, some of which compete with Complainant’s business.
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 at-issue domain name is confusingly similar to a trademark in which Complainant has rights.
By owning a USPTO trademark registrations for the CHRISTIANMINGLE mark Complainant conclusively demonstrates that it has rights in that mark for the purposes of Policy ¶ 4(a)(i) regardless of whether or not Respondent resides outside the jurisdiction of the trademark’s registrar. See Intel Corp. v. Macare, FA 660685 (Nat. Arb. Forum Apr. 26, 2006) (finding that the complainant had established rights in the PENTIUM, CENTRINO and INTEL INSIDE marks by registering the marks with the USPTO). 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; therefore it is sufficient that the complainant can demonstrate a mark in some jurisdiction).
The domain name consists of Complainant’s entire mark with the addition of the top level domain name “.co,” the country code for Colombia. Consideration of the necessary top level domain name is generally irrelevant to Policy ¶4(a)(i) analysis. Therefore the Panel concludes that the <christianmingle.co> domain name is identical to Complainant’s CHRISTIANMINGLE mark. See Mars, Inc. v. Dayal, FA 1381794 (Nat. Arb. Forum April 30, 2011) (finding the <snickers.co> domain name identical to the SNICKERS mark, as the change to the domain name, adding the ccTLD “.co,” failed to sufficiently differentiate the domain name from the complainant’s mark).
Respondent lacks both rights and legitimate interests in respect of the at-issue domain name. Respondent is not authorized to use Complainant’s trademark 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 the at‑issue domain name.
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 the 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, Complainant’s prima facie showing acts conclusively.
The WHOIS information for the at-issue domain names identifies the domain name registrant as “MAYNI EFREM / ME NEW ENTERPRISE” and the record before the Panel contains no evidence that tends to prove that Respondent is commonly known by the <christianmingle.co> domain name. The Panel therefore concludes that Respondent is not commonly known by the
<christianmingle.co> domain name for the purposes of 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).
Respondent uses the <christianmingle.co> domain name to host a website featuring generic hyperlinks to third-party websites, some of which are Complainant’s competitors. Using the domain name in this manner is neither a bona fide offering of goods or services under Policy ¶4(c)(i), nor a legitimate noncommercial or fair use under Policy ¶4(c)(i). 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).
The at-issue domain name was registered and is being used in bad faith. As discussed below Policy ¶4(b) bad faith circumstances are present and there is additional non-Policy ¶4(b) evidence from which the Panel may also conclude that Respondent acted in bad faith pursuant to Policy ¶4(a)(iii).
Respondent has a history of bad faith registration and use of domain names. See The Finish Line, Inc. v. Efrem, FA 1474709 (Nat. Arb. Forum Jan. 24, 2013); see also Academy, Ltd. V. Elfrem, FA 1456276 (Nat. Arb. Forum Aug. 27, 2012). The array of UDRP decisions adverse to Respondent indicates a pattern of bad faith domain registrations and suggests Respondent’s bad faith in the present case pursuant to Policy ¶ 4(b)(ii). See Westcoast Contempo Fashions Ltd. v. Manila Indus., Inc., FA 814312 (Nat. Arb. Forum Nov. 29, 2006) (finding bad faith registration and use pursuant to Policy ¶ 4(b)(ii) where the respondent had been subject to numerous UDRP proceedings where panels ordered the transfer of disputed domain names containing the trademarks of the complainants).
Furthermore, Respondent disrupts Complainant’s business by using the <christianmingle.co> domain name to display hyperlinks to competing entities, and by drawing business away from Complainant’s website. Such use of the at-issue domain name demonstrates Respondent’s bad faith registration and use of the domain name under Policy ¶ 4(b)(iii). See United Servs. Auto. Ass’n v. Savchenko, FA 1105728 (Nat. Arb. Forum Dec. 12, 2007) (“Respondent currently utilizes the disputed domain name, <usaa-insurance.net>, to resolve to a website featuring links to third-party competitors of Complainant. The Panel finds such use establishes Respondent registered and is using the disputed domain name in bad faith pursuant to Policy ¶ 4(b)(iii).”).
Additionally, Respondent registered and uses the trademark centric <christianmingle.co> domain name to mislead consumers looking for Complainant into visiting Respondent’s website. There is little doubt that the links displayed on the <christianmingle.co> website are designed to generate revenue for Respondent. These circumstances demonstrate Respondent’s bad faith registration and use of the domain name under Policy ¶ 4(b)(iv). See Univ. of Houston Sys. v. Salvia Corp., FA 637920 (Nat. Arb. Forum Mar. 21, 2006), stated that the respondent’s use of the domain name at issue to operate a website featuring links to competing and non-competing commercial websites in order to receive referral fees is evidence of bad faith registration and use.
Finally, Respondent is “typosquatting.” Since the at-issue domain name differs from Complainant’s official domain by the absence of the single trailing “m” some percentages of Internet users attempting to enter Complainant’s official URL into a browser will omit the “m” from “christiansingles.com.” Such users will inadvertently arrive at Respondent’s website. Respondent benefits when one of these unintentional visitors clicks a featured link. Registering a domain name consisting of Complainant’s correctly-spelled mark, followed by the top level domain name “.co” is a form of typosquatting. It matters not that the misspelled or mistyped portion of the domain name is its top level. Typosquatting is further evidence of Respondent’s bad faith under Policy ¶ 4(a)(iii). See Dermalogica, Inc. v. Domains to Develop, FA 175201 (Nat. Arb. Forum Sept. 22, 2003) (finding that the <dermatalogica.com> domain name was a “simple misspelling” of the complainant's DERMALOGICA mark which indicated typosquatting and bad faith pursuant to 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 <christianmingle.co> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: August 20, 2013
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