Spark Networks USA, LLC v. Whois Protection
Claim Number: FA1307001509337
Complainant is Spark Networks USA, LLC (“Complainant”), represented by CitizenHawk, Inc., California, USA. Respondent is Whois Protection (“Respondent”), Czech Republic.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <christiainmingle.com>, registered with GRANSY S.R.O D/B/A SUBREG.CZ.
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.
Hon. Karl V. Fink (Ret.), 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. The Complaint was submitted in both Czech and English
On July 16, 2013, GRANSY S.R.O D/B/A SUBREG.CZ confirmed by e-mail to the National Arbitration Forum that the <christiainmingle.com> domain name is registered with GRANSY S.R.O D/B/A SUBREG.CZ and that Respondent is the current registrant of the name. GRANSY S.R.O D/B/A SUBREG.CZ has verified that Respondent is bound by the GRANSY S.R.O D/B/A SUBREG.CZ 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 23, 2013, the Forum served the Complaint and all Annexes, including a Czech language 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@christiainmingle.com. Also on July 23, 2013, the Czech 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 August 22, 2013, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Hon. Karl V. Fink (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.
Pursuant to Rule 11(a), the Panel determines that the language requirement has been satisfied through the Czech language Complaint and Commencement Notification, and, absent a Response, determines that the remainder of the proceedings may be conducted in English.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant owns and uses the CHRISTIANMINGLE mark in its operation as an online dating service. Complainant began its enterprise in 1997, introducing <JDate.com>, which is now a leading online personals website for Jewish singles. Complainant went on to launch a variety of online personals websites to accommodate a variety of communities, including Christian singles. Complainant owns rights in the CHRISTIANMINGLE mark through its trademark registration with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 2,940,052 registered April 12, 2005). The CHRISTIANMINGLE mark has been used in a variety of marketing activities, such that the mark has achieved wide consumer recognition and brand acceptance. Complainant owns the <christianmingle.com> domain name, which it uses to carry on its business offering an online forum for Christian singles to meet.
Respondent registered the <christiainmingle.com> domain name on October 17, 2009, and the domain name is confusingly similar to Complainant’s mark. Respondent cannot demonstrate that is commonly known by the domain name and Respondent fails to make a bona fide offering of goods or services or a legitimate noncommercial or fair use of the domain name. Respondent uses 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, for which Respondent receives pay-per-click fees. Respondent’s bad faith registration and use is made apparent by its disruptive use of the resolving website, Respondent’s attempt to make a commercial gain from its use of the website, and Respondent’s blatant typosquatting.
B. Respondent
Respondent failed to submit a Response in this proceeding.
For reasons set forth below, the Panel finds Complainant is entitled to the relief requested.
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 claims rights in the CHRISTIANMINGLE mark based on its USPTO registration of the mark (Reg. No. 2,940,052 registered April 12, 2005). The Panel notes that Respondent appears to be located in the Czech Republic, but nonetheless finds that Complainant’s USPTO registration satisfies Policy ¶ 4(a)(i), thereby demonstrating Complainant’s rights in the CHRISTIANMINGLE mark, regardless of Respondent’s country of residency. 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)); see also KCTS Television Inc. v. Get-on-the-Web Ltd., D2001-0154 (WIPO Apr. 20, 2001) (holding that it does not matter for the purpose of Policy ¶ 4(a)(i) whether the complainant’s mark is registered in a country other than that of the respondent’s place of business).
Complainant argues that the <christiainmingle.com> domain name is confusingly similar to Complainant’s CHRISTIANMINGLE mark, stating that the domain name differs by only a single character from Complainant’s mark. The Panel notes that an extra character, a misplaced “i,” has been added to Complainant’s mark. Complainant also contends that adding the generic top-level domain (“gTLD”) “.com” does not affect a Policy ¶ 4(a)(i) analysis. The Panel finds that adding a single character and a gTLD does not sufficiently differentiate the mark from the domain name, and thus determines that the disputed domain name is confusingly similar to Complainant’s CHRISTIANMINGLE mark pursuant to 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.”); see also Computerized Sec. Sys., Inc. v. Hu, FA 157321 (Nat. Arb. Forum June 23, 2003) (finding that the addition of the letter “c” to the complainant’s SAFLOK mark does not distinguish the <saflock.com> domain name from the mark under Policy ¶ 4(a)(i)).
Complainant has proven this element.
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.”).
Complainant argues that Respondent has no rights or legitimate interests in the <christiainmingle.com> domain name, claiming that Respondent cannot show that it is commonly known by the disputed domain name. Complainant contends that Respondent has no permission to use Complainant’s mark in a domain name, and Respondent has no trademark or intellectual property rights in the domain name. Previous panels have stated that a complainant’s contention that the respondent has no affiliation with or permission to use the mark upon which the disputed domain name is based supports a finding that the respondent is not commonly known by the domain. See Reese v. Morgan, FA 917029 (Nat. Arb. Forum Apr. 5, 2007) (concluding that the respondent was not commonly known by the <lilpunk.com> domain name as there was no evidence in the record showing that the respondent was commonly known by that domain name, including the WHOIS information as well as the complainant’s assertion that it did not authorize or license the respondent’s use of its mark in a domain name). The Panel finds that Complainant’s allegation that Respondent is not authorized to use the CHRISTIANMINGLE mark suggests that Respondent is not commonly known by the <christiainmingle.com> domain name, and that Respondent therefore cannot be found to possess rights or legitimate interests in the domain name under Policy ¶ 4(c)(ii) in the absence of any affirmative evidence to the contrary.
Complainant claims that Respondent makes use of the <christiainmingle.com> domain name to host a website featuring generic links to third-party websites, some of which directly compete with Complainant’s business. Complainant submits its Exhibit H to show a screenshot of Respondent’s use of the website, displaying links that include “Mobile Dating Sites,” “Chat Rooms Christian,” and similar links. The Panel finds that the links compete with Complainant, and concludes that Respondent does not use the disputed domain name to make a Policy ¶ 4(c)(i) bona fide offering of goods or services or a Policy ¶ 4(c)(iii) legitimate noncommercial or fair use of the domain name. See Compania Mexicana de Aviacion, S.A. de C.V. v. Bigfoot Ventures LLC, FA 1195961 (Nat. Arb. Forum July 14, 2008) (holding that the respondent had not demonstrated a bona fide offering of goods or services or a legitimate noncommercial or fair use when “the website resolving from the disputed domain name displays links to travel products and services, which directly compete with Complainant’s business”).
Complainant has proven this element.
Complainant asserts that Respondent displays pay-per-click links at the resolving website that promote products and services that compete with Complainant. Complainant argues that Respondent’s site disrupts Complainant’s business by diverting potential customers away from Complainant to third-party websites offering similar services. The Panel concludes that Complainant experiences disruption to its business as a result of Respondent’s bad faith registration and use of the <christiainmingle.com> domain name under Policy ¶ 4(b)(iii). See H-D Michigan Inc. v. Buell, FA 1106640 (Nat. Arb. Forum Jan. 2, 2008) (“The disputed domain names resolve to websites that list links to competitors of Complainant, evidence that Respondent intends to disrupt Complainant’s business, a further indication of bad faith pursuant to Policy ¶ 4(b)(iii).”).
Complainant makes the contention that Respondent registered the <christiainmingle.com> domain name for the purpose of confusing Internet users and attracting consumers to its website. Complainant argues that Respondent attempts to make a profit by featuring competing links to commercial websites. The panel in Associated Newspapers Ltd. v. Domain Manager, FA 201976 (Nat. Arb. Forum Nov. 19, 2003), maintained that the respondent’s use of the domain name provided evidence of bad faith, because it led to a website displaying links of the complainant’s competitors, and the respondent presumably commercially benefited from the misleading domain name by receiving fees. The Panel determines that Respondent’s bad faith registration and use under Policy ¶ 4(b)(iv) is shown by its use of the <christiainmingle.com> domain name to establish a website featuring pay-per-click links from which it makes a profit.
Complainant makes the allegation that Respondent is engaged in typosquatting, which it claims is evidence of bad faith. The Panel notes that the domain name consists of Complainant’s CHRISTIANMINGLE mark, with an extra “i” in the word “Christian,” and concludes that the domain name consists of a common misspelling of Complainant’s mark. The Panel finds that Respondent’s registration of the <christiainmingle.com> domain name represents typosquatting, thereby demonstrating Respondent’s bad faith registration and use under Policy ¶ 4(a)(iii). See Bank of Am. Corp. v. Tak Ume domains for sale, FA 154528 (Nat. Arb. Forum May 19, 2003) (holding that the practice of typosquatting “diverts Internet users who misspell Complainant’s mark to a website apparently owned by Respondent for Respondent’s commercial gain. ‘Typosquatting’ has been recognized as evidencing bad faith registration and use under Policy ¶ 4(b)(iv).”).
Complainant has proven this element.
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 <christiainmingle.com> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Karl V. Fink (Ret.), Panelist
Dated: August 26, 2013
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