national arbitration forum

 

DECISION

 

Cybertania Inc v. The Domain Queue c/o Domain Admin

Claim Number: FA0904001258292

 

PARTIES

Complainant is Cybertania, Inc (“Complainant”), represented by Leo Radvinsky, Illinois, USA.  Respondent is The Domain Queue c/o Domain Admin (“Respondent”), Washington, USA.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <myfeecams.com>, registered with Enom, Inc.

 

PANEL

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.

 

Tyrus R. Atkinson, Jr., as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum electronically on April 19, 2009; the National Arbitration Forum received a hard copy of the Complaint on April 22, 2009.

 

On April 29, 2009, Enom, Inc. confirmed by e-mail to the National Arbitration Forum that the <myfeecams.com> 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-name disputes brought by third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy").

 

On May 8, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of May 28, 2009 by which Respondent could file a response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent's registration as technical, administrative and billing contacts, and to postmaster@myfeecams.com by e-mail.

 

Respondent sent an e-mail to the Forum, stating that Respondent could have raised certain defenses to this claim, but decided not to do so.  Respondent states that for the sum of $1500.00 Respondent had no problem transferring the domain name to complainant.  This Response was not received by the Forum by the response deadline and does not properly address any of the issues raised by Complainant.  The Panel does not find that the e-mail represents a proper response under the Policy and will decide this domain name dispute as a default case.

 

Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.

 

On June 4, 2009, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Tyrus R. Atkinson, Jr., 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."  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

A.  Complainant makes the following assertions:

 

1.      Respondent’s <myfeecams.com> domain name is confusingly similar to Complainant’s MYFREECAMS.COM mark.

 

2.      Respondent does not have any rights or legitimate interests in the <myfeecams.com> domain name.

 

3.      Respondent registered and used the <myfeecams.com> domain name in bad faith.

 

B.  Respondent failed to submit a Response in this proceeding.

 

FINDINGS

Complainant has operated a web-cam-based online community since 2002.  Complainant uses its MYFREECAMS.COM mark in connection with this business and holds a registration of the mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 3,495,750 issued Sep. 2, 2008).  This registration was filed on February 3, 2008 and lists the first use in commerce as September 1, 2003.  Complainant’s online community has over one million members and is listed by Alexa.com as one of the top 2,000 website in the United States.

 

Respondent registered the <myfeecams.com> domain name on January 3, 2007.  The disputed domain name resolves to a website displaying links to third-party websites some of which directly compete with Complainant and some of which are adult-oriented.

 

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."

 

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.”).

 

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.

 

Identical and/or Confusingly Similar

 

Complainant must first establish that it has rights to the mark included in the disputed domain name.  Under Policy ¶ 4(a)(i) registration of a trademark is not necessary to establish that Complainant has rights in the mark.  See McCarthy on Trademarks and Unfair Competition, § 25:74.2 (4th ed. 2002) (The ICANN dispute resolution policy is “broad in scope” in that “the reference to a trademark or service mark ‘in which the complainant has rights’ means that ownership of a registered mark is not required–unregistered or common law trademark or service mark rights will suffice” to support a domain name complaint under the Policy); see also Great Plains Metromall, LLC v. Creach, FA 97044 (Nat. Arb. Forum May 18, 2001) (“The Policy does not require that a trademark be registered by a governmental authority for such rights to exist.”).

 

Complainant has used the MYFREECAMS.COM mark since at least September 2003.  Complainant’s online community has over one million members and Complainant has been recognized by its MYFREECAMS.COM mark by third parties.  The Panel finds that Complainant has established that the MYFREECAMS.COM mark has acquired a secondary meaning and Complainant has established common law rights in the mark pursuant to Policy ¶ 4(a)(i) dating prior to Respondent’s registration of the disputed domain name.  See Kahn Dev. Co. v. RealtyPROshop.com, FA 568350 (Nat. Arb. Forum June 23, 2006) (holding that the complainant’s VILLAGE AT SANDHILL mark acquired secondary meaning among local consumers sufficient to establish common law rights where the complainant had been continuously and extensively promoting a real estate development under the mark for several years); see also Artistic Pursuit LLC v. calcuttawebdevelopers.com, FA 894477 (Nat. Arb. Forum Mar. 8, 2007) (concluding that the complainant had established common law rights in the ARTISTIC PURSUIT mark by using the mark in commerce before Respondent registered the disputed domain name).  In addition, the fact that Complainant has registered the MYFREECAMS.COM mark suggest that Complainant has an interest and rights in the mark.  See Bibbero Sys., Inc. v. Tseu & Assoc., FA 94416 (Nat. Arb. Forum May 9, 2000) (finding, while the complainant had registered the BIBBERO SYSTEMS, INC. mark, it also had common law rights in the BIBBERO mark because it had developed brand name recognition with the word “bibbero”).

 

Complainant argues that Respondent’s <myfeecams.com> domain name is confusingly similar to its MYFREECAMS.COM mark.  The only difference between the disputed domain name and Complainant’s mark is that the disputed domain name omits the letter “r.”  The Panel finds that the <myfeecams.com> domain name is confusingly similar to Complainant’s MYFREECAMS.COM mark pursuant to Policy ¶ 4(a)(i).  See Reuters Ltd. v. Global Net 2000, Inc., D2000-0441 (WIPO July 13, 2000) (finding that a domain name which differs by only one letter from a trademark has a greater tendency to be confusingly similar to the trademark where the trademark is highly distinctive); see also State Farm Mut. Auto. Ins. Co. v. Try Harder & Co., FA 94730 (Nat. Arb. Forum June 15, 2000) (finding that the domain name <statfarm.com> is confusingly similar to the complainant’s STATE FARM mark).

 

The Panel finds that Complainant has satisfied Policy ¶ 4(a)(i).

 

Rights or Legitimate Interests

 

Pursuant to Policy ¶ 4(a)(ii), Complainant must first establish a prima facie case that Respondent has no rights or legitimate interests in the disputed domain name.  If the Panel finds that Complainant’s allegations establish such a prima facie case, the burden shifts to Respondent to show that it does indeed have rights or legitimate interests in the disputed domain name pursuant to the guidelines in Policy ¶ 4(c).  The Panel finds that Complainant’s allegations are sufficient to establish a prima facie case that Respondent has no rights or legitimate interests in the <myfeecams.com> domain name pursuant to Policy ¶ 4(a)(ii).  Since no response was submitted in this case, the Panel may presume that Respondent has no rights or legitimate interests in the disputed domain name.  However, the Panel will still examine the record in consideration of the factors listed in Policy ¶ 4(c).  See Domtar, Inc. v. Theriault., FA 1089426 (Nat. Arb. Forum Jan. 4, 2008) (“It is well established that, once a complainant has made out a prima facie case in support of its allegations, the burden shifts to respondent to show that it does have rights or legitimate interests pursuant to paragraph 4(a)(ii) of the Policy.”); see also G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum Oct. 1, 2002) (“Because Complainant’s Submission constitutes a prima facie case under the Policy, the burden effectively shifts to Respondent. Respondent’s failure to respond means that Respondent has not presented any circumstances that would promote its rights or legitimate interests in the subject domain name under Policy ¶ 4(a)(ii).”). 

 

The Panel finds no evidence in the record suggesting that Respondent is commonly known by the <myfeecams.com> domain name.  Complainant asserts that Respondent has no license or agreement with Complainant authorizing Respondent to use the MYFREECAMS.COM mark, and the WHOIS information identifies Respondent as “The Domain Queue c/o Domain Admin.”  Thus, Respondent has not established rights or legitimate interests in the disputed domain name under Policy ¶ 4(c)(ii).  See Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003) (stating “nothing in Respondent’s WHOIS information implies that Respondent is ‘commonly known by’ the disputed domain name” as one factor in determining that Policy ¶ 4(c)(ii) does not apply); see also Am. W. Airlines, Inc. v. Paik, FA 206396 (Nat. Arb. Forum Dec. 22, 2003) (“Respondent has registered the domain name under the name ‘Ilyoup Paik a/k/a David Sanders.’  Given the WHOIS domain name registration information, Respondent is not commonly known by the [<awvacations.com>] domain name.”).

 

Respondent is using the <myfeecams.com> domain name to resolve to a website displaying links to third-party websites, some of which are adult-oriented and some of which directly compete with Complainant.  The Panel finds this use is not a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).  See Dipaolo v. Genero, FA 203168 (Nat. Arb. Forum Dec. 6, 2003) (“Diversion to [adult-oriented material] is not a bona fide offering of goods or services or a legitimate noncommercial or fair use of the domain name pursuant to Policy ¶¶ 4(c)(i) and (iii).”); see also Disney Enters., Inc. v. Kamble, FA 918556 (Nat. Arb. Forum Mar. 27, 2007) (holding that the operation of a pay-per-click website at a confusingly similar domain name was not a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii)).

 

Additionally, typosquatting occurs when a respondent purposefully includes typographical errors in the mark portion of a disputed domain name to divert Internet users who commit those typographical errors.  The <myfeecams.com> domain name takes advantage of Internet users who mistype Complainant’s MYFREECAMS.COM mark by leaving out the letter “r.”  The Panel finds that Respondent engaged in typosquatting by misspelling Complainant’s mark in the disputed domain name.  This is further evidence that Respondent does not have rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(a)(ii).  See LTD Commodities LLC v. Party Night, Inc., FA 165155 (Nat. Arb. Forum Aug. 14, 2003) (finding that the <ltdcommadities.com>, <ltdcommmodities.com>, and <ltdcommodaties.com> domain names were intentional misspellings of the complainant's LTD COMMODITIES mark and this “‘typosquatting’ is evidence that Respondent lacks rights or legitimate interests in the disputed domain names”); see also IndyMac Bank F.S.B. v. Ebeyer, FA 175292 (Nat. Arb. Forum Sept. 19, 2003) (finding that the respondent lacked rights and legitimate interests in the disputed domain names because it “engaged in the practice of typosquatting by taking advantage of Internet users who attempt to access Complainant's <indymac.com> website but mistakenly misspell Complainant's mark by typing the letter ‘x’ instead of the letter ‘c’”).

 

The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).

 

Registration and Use in Bad Faith

 

Respondent is using the <myfeecams.com> domain name to resolve to a website containing links to third-party websites, some of which directly compete with Complainant.  The Panel finds Respondent is using the <myfeecams.com> domain name to disrupt Complainant’s business by diverting Internet users to Complainant’s competitors.  This is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iii).  See Puckett, Individually v. Miller, D2000-0297 (WIPO June 12, 2000) (finding that the respondent has diverted business from the complainant to a competitor’s website in violation of Policy ¶ 4(b)(iii)); see also EBAY, Inc. v. MEOdesigns, D2000-1368 (WIPO Dec. 15, 2000) (finding that the respondent registered and used the domain name <eebay.com> in bad faith where the respondent has used the domain name to promote competing auction sites).

 

The Panel infers that Respondent receives click-through fees for diverting Internet users to third-party websites.  Because Respondent’s domain name is confusingly similar to Complainant’s MYFREECAMS.COM mark, Internet users accessing Respondent’s disputed domain name may become confused as to Complainant’s affiliation with the disputed domain name and resulting website.  Respondent is attempting to profit from this confusion.  Thus, Respondent’s use of the <myfeecams.com> domain name constitutes bad faith registration and use pursuant to Policy ¶ 4(b)(iv).  See Allianz of Am. Corp. v. Bond, FA 680624 (Nat. Arb. Forum June 2, 2006) (finding bad faith registration and use under Policy ¶ 4(b)(iv) where the respondent was diverting Internet users searching for the complainant to its own website and likely profiting); see Williams-Sonoma, Inc. v. Fees, FA 937704 (Nat. Arb. Forum Apr. 25, 2007) (holding that the use of a confusingly similar domain name to display links to various third-party websites demonstrated bad faith registration and use pursuant to Policy ¶ 4(b)(iv)).

 

Furthermore, the Panel finds that it may consider the totality of the circumstances when conducting a Policy ¶ 4(a)(iii) analysis, and that it is not limited to the enumerated factors in Policy ¶ 4(b).  See Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (“[T]he examples [of bad faith] in Paragraph 4(b) are intended to be illustrative, rather than exclusive.”).  The Panel finds that Respondent’s engagement in typosquatting is evidence that Respondent registered and is using the <myfeecams.com> domain name in bad faith pursuant to 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).”); see also 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)).

 

Complainant argues that, by linking to adult-oriented websites, Respondent is attempting to tarnish Complainant’s MYFREECAMS.COM mark.  The Panel finds that Respondent registered and is using the <myfeecams.com> domain name in bad faith pursuant to Policy ¶ 4(a)(iii). See Wells Fargo & Co. v. Party Night Inc., FA 144647 (Nat. Arb. Forum Mar. 18, 2003) (finding that the respondent’s tarnishing use of the disputed domain names to redirect Internet users to adult-oriented websites was evidence that the domain names were being used in bad faith); see also Six Continents Hotels, Inc. v. Nowak, D2003-0022 (WIPO Mar. 4, 2003) ( “[W]hatever the motivation of Respondent, the diversion of the domain name to a [adult-oriented] site is itself certainly consistent with the finding that the Domain Name was registered and is being used in bad faith.”).

 

The Panel finds that Complainant has satisfied Policy ¶ 4(a)(iii).

 

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

 

 

 

 

Tyrus R. Atkinson, Jr., Panelist

Dated:  June 17, 2009

 

 

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