Sittercity Incorporated v. Above.com Domain Privacy
Claim Number: FA1308001516874
Complainant is Sittercity Incorporated (“Complainant”), represented by CitizenHawk, Inc., California, USA. Respondent is Above.com Domain Privacy (“Respondent”), Australia.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <sittrercity.com>, registered with Above.com Pty Ltd.
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.
Paul M. DeCicco, as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on August 28, 2013; the National Arbitration Forum received payment on August 28, 2013.
On August 29, 2013, Above.com Pty Ltd. confirmed by e-mail to the National Arbitration Forum that the <sittrercity.com> domain name is registered with Above.com Pty Ltd. and that Respondent is the current registrant of the name. Above.com Pty Ltd. has verified that Respondent is bound by the Above.com Pty 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 August 30, 2013, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 19, 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@sittrercity.com. Also on August 30, 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 24, 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 is the owner of multiple registrations with the United States Patent and Trademark Office (“USPTO”) for the SITTERCITY (e.g., Reg. No. 3,029,158 registered Dec. 13, 2005) and SITTERCITY.COM (Reg. No. 3,050,204 registered Jan. 24, 2006) marks. The marks are used in connection with referrals for care services for children, newborns, the elderly, pets, and house monitoring.
The <sittrercity.com> domain name is confusingly similar to the SITTERCITY.COM mark. Respondent did no more than add an additional letter to the mark.
Respondent is not commonly known by the <sittrercity.com> domain name. Respondent has no intellectual property rights in the domain, is not sponsored by or affiliated with Complainant, and has not been given permission to use the SITTERCITY.COM mark. The <sittrercity.com> domain name resolves to a website where Internet users are confronted by links to third parties, some of which compete directly with Complainant’s business. Presumably, Respondent receives pay-per-click fees from these linked websites.
Respondent is misleading Internet users as it uses a confusingly similar domain name to advertise pay-per-click links that compete with Complainant. Respondent’s diversion of Internet users has a negative impact on Complainant’s business. Respondent is using the disputed domain name as a click-through link page in order to generate revenue, and thus demonstrates bad faith. Respondent is attempting to take advantage of Complainant’s well-known mark in order to achieve a wrongful competitive advantage and commercially gain.
The disputed domain name is a classic example of typosquatting. The <sittrercity.com> domain name merely deviates from the SITTERCITY.COM mark by a single letter. Respondent was clearly attempting to take advantage of typographical errors made by Internet users.
Respondent registered the disputed domain name on September 3, 2011, significantly after Complainant’s acquisition of trademark rights in the domain name in 2006.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns USPTO registered trademarks for SITTERCITY and SITTERCITY.COM.
Respondent is not affiliated with Complainant and had not been authorized to use the marks in any capacity.
Respondent registered the at-issue domain name after Complainant acquired trademark rights in SITTERCITY and SITTERCITY.COM.
Respondent uses the <sittrercity.com> domain name to address a website that displays pay-per-click links 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 at-issue domain name is confusingly similar to a trademark in which Complainant has rights.
Complainant’s registration of the SITTERCITY.COM mark with the USPTO sufficiently demonstrates Complainant’s rights in a mark under Policy ¶ 4(a)(i). Complainant need not register its mark where Respondent operates to demonstrate such rights. See Expedia, Inc. v. Tan, FA 991075 (Nat. Arb. Forum June 29, 2007) (“As the [Complainant’s] mark is registered with the USPTO, Complainant has met the requirements of Policy ¶ 4(a)(i)”); see also 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 domain name differs from Complainant’s trademark by a single additional letter, the letter ‘r’. Therefore, the Panel finds that the <sittrercity.com> domain name is confusingly similar to Complainant’s trademark under Policy ¶4(a)(i). See Reuters Ltd. v. Global Net 2000, Inc., D2000-0441 (WIPO July 13, 2000) (finding that the misspelling of a mark by a single letter increases, rather than decreases, confusing similarity).
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.
WHOIS information for the <sittrercity.com> domain name identifies the domain name’s registrant as “Above.com Domain Privacy” and the record before the Panel contains no evidence that tends to otherwise suggest that Respondent is commonly known by the <sittrercity.com> domain name. The Panel therefore concludes that Respondent is not commonly known by the <sittrercity.com> 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’s <sittrercity.com> domain name addresses a website where Internet users can access links to third-party websites, some of which compete directly with Complainant. There is little doubt that Respondent intents to receive pay-per-click revenue when an Internet user navigates via one of these links. Respondent’s use of the confusingly similar domain name for this purpose is neither a Policy ¶ 4(c)(i) bona fide offering of goods or services, nor a Policy ¶ 4(c)(iii) legitimate noncommercial or fair use of the at-issue domain name. See Disney Enters., Inc. v. Kamble, FA 918556 (Nat. Arb. Forum Mar. 27, 2007) (finding that the display of pay-per-click links on a disputed domain name does not qualify the respondent to hold rights or legitimate interests in the domain).
Given the forgoing, Complainant satisfies its initial burden and conclusively demonstrates, pursuant to Policy ¶4(a)(ii), Respondent’s lack of rights and lack of interests in respect of the at-issue domain name.
The at‑issue domain name was registered and is being used in bad faith. As discussed below, Policy ¶4(b) specific bad faith circumstances, as well as other circumstance, are present which urge the Panel to conclude that Respondent acted in bad faith pursuant to paragraph 4(a)(iii) of the Policy.
As mentioned above, Respondent uses the confusingly similar at-issue domain name to address a website which displays advertising pay-per-click links that compete with Complainant. Such use of the domain name is likely to disrupt Complainant’s business and therefore demonstrates Respondent’s bad faith pursuant to Policy ¶4(b)(iii). See Tesco Pers. Fin. Ltd. v. Domain Mgmt. Servs., FA 877982 (Nat. Arb. Forum Feb. 13, 2007) (concluding that the use of a confusingly similar domain name to attract Internet users to a directory website containing commercial links to the websites of a complainant’s competitors represents bad faith registration and use under Policy ¶ 4(b)(iii)).
Furthermore, Respondent’s activity shows that it is attempting to take advantage of Complainant’s trademark by capitalizing on Internet users’ confusion between the mark and the domain name. Respondent benefits from this confusion when Internet users mistype Complainant’s trademark, instead type “sittrerscity,” are directed to the <sittrercity.com> website, and then click one of the website’s pay-per-click links. Using the domain name in this manner demonstrates bad faith registration and use under Policy ¶4(b)(iv). See AltaVista Co. v. Krotov, D2000-1091 (WIPO Oct. 25, 2000) (finding bad faith under Policy ¶ 4(b)(iv) where the respondent’s domain name resolved to a website that offered links to third-party websites that offered services similar to the complainant’s services and merely took advantage of Internet user mistakes).
Finally, Respondent is intent on taking advantage of certain typographical errors made by Internet users. Respondent is thus a typosquatter. Typosquatting is, in and of itself, indicative for bad faith registration and use under Policy ¶4(a)(iii). See Nextel Commc’ns Inc. v. Geer, FA 477183 (Nat. Arb. Forum July 15, 2005)(finding that the addition of a single letter which an Internet user may reasonably, accidentally include in its typing of a domain name is evidence of typosquatting and thus also of bad faith); see also Nat'l Ass'n of Prof'l Baseball League, Inc. v. Zuccarini, D2002-1011 (WIPO Jan. 21, 2003) ("Typosquatting ... is the intentional misspelling of words with [the] intent to intercept and siphon off traffic from its intended destination, by preying on Internauts who make common typing errors. Typosquatting is inherently parasitic and of itself evidence of bad faith.").
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <sittrercity.com> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: September 24, 2013
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