Lavalife Corp. v. Jet Stream
Claim Number: FA1003001312247
Complainant is Lavalife Corp. (“Complainant”), represented by CitizenHawk, Inc., California, USA. Respondent is Jet Stream (“Respondent”), Antigua and Barbuda.
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <lvalife.com>, registered with Power Brand Center LLC.
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 March 8, 2010.
On March 23, 2010, Power Brand Center LLC confirmed by e-mail to the National Arbitration Forum that the <lvalife.com> domain name is registered with Power Brand Center LLC and that Respondent is the current registrant of the name. Power Brand Center LLC has verified that Respondent is bound by the Power Brand Center LLC 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 March 25, 2010, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 14, 2010 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@lvalife.com. Also on March 25, 2010, the Written Notice of the Complaint, notifying Respondent of the email 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 April 15, 2010, 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 "to employ reasonably available means calculated to achieve actual notice to Respondent" through submission of a Written Notice, as defined in Rule 1. 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 <lvalife.com> domain name is confusingly similar to Complainant’s LAVALIFE mark.
2. Respondent does not have any rights or legitimate interests in the <lvalife.com> domain name.
3. Respondent registered and used the <lvalife.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Lavalife Corp., is a Canadian based corporation that provides technology-based meeting services for single people and online interactive dating services. Complainant owns several trademark registrations with United States Patent and Trademark Office (“USPTO”) for its LAVALIFE mark (e.g. Reg. No. 2,633,091 issued on Oct. 8, 2002).
Respondent, Jet Stream, registered the <lvalife.com> domain name on October 30, 2002. Respondent’s disputed domain name resolves to a website that displays third-party links to dating and video-chat websites, some of which are in competition with Complainant.
Complainant
offers evidence that Respondent has a history of registering domain names that
infringe upon the trademark rights of others and has been ordered by previous
UDRP panels to transfer the domain names at issue in those proceedings to the
respective complainants. See Archstone Cmtys LLC v. Jet Stream Entrs.
Ltd., FA 1270459 (Nat. Arb. Forum Aug. 6, 2009); see also DirecTV, Inc. v. Jet Stream Entrs. Ltd., FA 1296495 (Nat.
Arb. Forum Jan. 15, 2010); see also
Hershey Chocolate & Confectionery Corp. v. Jet Stream Entrs. Ltd., FA
1252241 (Nat. Arb. Forum April 27, 2009); see
also Mary Kay Inc. v. Jet Stream Entrs. Ltd., FA 1286672 (Nat. Arb. Forum
Nov. 12, 2009).
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.
The Panel finds that Complainant has established rights in
its LAVALIFE mark pursuant to Policy ¶ 4(a)(i) through its trademark
registrations with the USPTO (e.g.
Reg. No. 2,633,091 issued on Oct. 8, 2002).
See Expedia, Inc. v. Tan, FA 991075 (Nat. Arb. Forum June 29, 2007) (“As
the [complainant’s] mark is registered with the USPTO, [the] complainant has
met the requirements of Policy ¶ 4(a)(i).”); see also Metro. Life Ins. Co. v. Bonds, FA 873143 (Nat. Arb. Forum Feb. 16, 2007)
(finding that a trademark registration adequately demonstrates a complainant’s
rights in a mark under Policy ¶ 4(a)(i)); see also Williams-Sonoma,
Inc. v. Fees, FA 937704 (Nat. Arb.
Forum Apr. 25, 2007) (finding that it is irrelevant whether the complainant has
registered its trademark in the country of the respondent’s residence).
Respondent’s <lvalife.com> domain name is confusingly similar to its LAVALIFE mark, as well as to Complainant’s official <lavalife.com> domain name. Respondent simply deleted the letter “a” from its mark and added the generic top-level domain (“gTLD”) “.com.” The Panel finds that the <lvalife.com> domain name is confusingly similar to Complainant’s LAVALIFE mark under Policy ¶ 4(a)(i). The Panel further finds that the addition of the gTLD “.com” is not relevant to a Policy ¶ 4(a)(i) analysis because a gTDL is a required element of every domain name. 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 Pfizer Inc. v. BargainName.com, D2005-0299 (WIPO Apr. 28, 2005) (holding that the <pfzer.com> domain name was confusingly similar to the complainant’s PFIZER mark, as the respondent simply omitted the letter “i”); see also Rollerblade, Inc. v. McCrady, D2000-0429 (WIPO June 25, 2000) (finding that the top level of the domain name such as “.net” or “.com” does not affect the domain name for the purpose of determining whether it is identical or confusingly similar).
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant alleges that Respondent does not have any rights or legitimate interests in the <lvalife.com> domain name. Complainant is required to make a prima facie case in support of these allegations. Once the Complainant has produced a prima facie case the burden shifts to Respondent to show it does have rights or legitimate interests in the disputed domain name. See Intel Corp. v. Macare, FA 660685 (Nat. Arb. Forum Apr. 26, 2006) (finding the “complainant must first make a prima facie case that [the] respondent lacks rights and legitimate interests in the disputed domain names under Policy ¶ 4(a)(ii), and then the burden shifts to [the] respondent to show it does have rights or legitimate interests.”); see also 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.”). The Panel finds that the Complainant has produced a prima facie case. Due to the Respondent’s failure to respond to these proceedings, the Panel may assume Respondent does not have any rights or legitimate interests in the disputed domain name. The Panel will, however, examine the record to determine whether Respondent possesses rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(c). See Am. Express Co. v. Fang Suhendro, FA 129120 (Nat. Arb. Forum Dec. 30, 2002) (“[B]ased on Respondent's failure to respond, it is presumed that Respondent lacks all rights and legitimate interests in the disputed domain name.”); see also Am. Online, Inc. v. AOL Int'l, D2000-0654 (WIPO Aug. 21, 2000) (finding no rights or legitimate interests where the respondent fails to respond).
Complainant maintains that it has not authorized Respondent to use its mark, and further that Respondent is not commonly known by the <lvalife.com> domain name. The WHOIS information for the <lvalife.com> domain name does not indicate that Respondent is commonly known by the disputed domain name. Respondent offers no evidence to refute Complainant’s claim that Respondent is not commonly known by the disputed domain name. Therefore, the Panel concludes that Respondent lacks rights and legitimate interests in the <lvalife.com> domain name under Policy ¶ 4(c)(ii). 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 disputed domain names, and the complainant had not authorized the respondent to register a domain name containing its registered mark); see also 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).
Respondent’s <lvalife.com>
domain name resolves to a website that displays various third-party links to
websites that are operating similar online dating businesses as Complainant and
providing similar technological meeting services as Complainant. Complainant presumes that Respondent is
receiving referral fees associated with the links that are displayed on
Respondent’s website. As such use is
indicated by Complainant’s evidence, the Panel finds that Respondent is not
using the disputed domain name in connection with 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 Tesco Pers. Fin. Ltd. v.
Domain Mgmt. Servs., FA
877982 (Nat. Arb. Forum
Feb. 13, 2007) (finding that the respondent was not using the
<tesco-finance.com> domain name in connection with a bona fide offering
of goods or services or a legitimate noncommercial or fair use by maintaining a
web page with misleading links to the complainant’s competitors in the
financial services industry); see also Bond & Co. Jewelers, Inc. v. Tex.
Int’l Prop. Assocs., FA 937650 (Nat.
Arb. Forum Apr. 30, 2007) (finding that the use of the disputed domain name to
operate a website displaying links to competing goods and services was not a bona fide offering of goods or services
pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant
to Policy ¶ 4(c)(iii)).
Complainant further asserts that Respondent is taking advantage of Internet users that are attempting to reach Complainant’s official <lavalife.com> website by capitalizing on the misspelling of Complainant’s LAVALIFE mark. Complainant notes that this method of diversion is called typosquatting and is evidence that Respondent does not have rights or a legitimate interest in the disputed domain name for purposes of Policy ¶ 4(a)(ii). The Panel finds that the Respondent’s engagement in the practice of typosquatting is evidence that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii). See Microsoft Corp. v. Domain Registration Philippines, FA 877979 (Nat. Arb. Forum Feb. 20, 2007) (concluding that by registering the <microssoft.com> domain name, the respondent had “engaged in typosquatting, which provides additional evidence that [the] respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii).); see also LTD Commodities LLC v. Party Night, Inc., FA 165155 (Nat. Arb. Forum Aug 14, 2003) (finding that the <ltdcommadities.com>, <ltdcommmodities.com>, and <ltdcommadaties.com> domain names were intentional misspellings of Complainant’s LTD COMMODITIES mark and this “’typosqatting’ is evidence that Respondent lacks right or legitimate interests in the disputed domain names”).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Respondent is using the <lvalife.com> domain name to divert Internet customers seeking Complainant’s official <lavalife.com> website to competitive websites and online dating businesses of Complainant that resolve from the disputed domain name. The confusion caused to Internet users by the similarity between the LAVALIFE mark and the disputed domain name is disrupting Complainant’s business. The Panel finds that Respondent’s use of the disputed domain name disrupts Complainant’s business by intentionally diverting Internet users to competitors’ websites, and is evidence of registration and use in bad faith pursuant to Policy 4(b)(iii). See Classic Metal Roofs, LLC v. Interlock Indus., Ltd., FA 724554 (Nat. Arb. Forum Aug. 1, 2006) (finding that the respondent registered and used the <classicmetalroofing.com>domain name in bad faith pursuant to ICANN Policy ¶ 4(b)(iii) by redirecting Internet users to the respondent’s competing website); see also Disney Enters., Inc. v. Noel, FA 198805 (Nat. Arb. Forum Nov. 11, 2003) (“Respondent registered a domain name confusingly similar to Complainant’s mark to divert Internet users to a competitor’s website. It is a reasonable inference that Respondent’s purpose of registration and use was to either disrupt or create confusion for Complainant’s business in bad faith pursuant to Policy ¶ 4(b)(iii) [and] (iv).”).
The Panel presumes that Respondent is collecting click-through fees and attempting to profit by creating a likelihood of confusion between Complainant’s LAVALIFE mark and the confusingly similar disputed domain name. The Panel finds that Respondent’s use of the <lvalife.com> domain name is further evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv). See Velv, LLC v. AAE, FA 677922 (Nat. Arb. Forum May 25, 2006) (finding that the respondent’s use of the <arizonashuttle.net> domain name, which contained the complainant’s ARIZONA SHUTTLE mark, to attract Internet traffic to the respondent’s website offering competing travel services violated Policy ¶ 4(b)(iv)); see also Zee TV USA, Inc. v. Siddiqi, FA 721969 (Nat. Arb. Forum July 18, 2006) (finding that the respondent engaged in bad faith registration and use by using a domain name that was confusingly similar to the complainant’s mark to offer links to third-party websites that offered services similar to those offered by the complainant).
Respondent has engaged in typosquatting through its registration and use of the <lvalife.com> domain name. This practice constitutes evidence in itself of bad faith registration and use under Policy ¶ 4(a)(iii), and so this Panel finds. See Nextel Commc’ns Inc. v. Geer, FA 477183 (Nat. Arb. Forum July 15, 2005) (finding that the respondent’s registration and use of the <nextell.com> domain name was in bad faith because the domain name epitomized typosquatting in its purest form); see also Internet Movie Database, Inc. v. Temme, FA 449837 (Nat. Arb. Forum May 24, 2005) (“Respondent's registration of the domain names in dispute constitutes bad faith because the domain names are merely typosquatted versions of the [complainant’s] IMDB mark.).
Respondent’s repeated engagement in cybersquatting is
further evidence of bad faith. See Archstone Cmtys LLC v. Jet Stream Entrs. Ltd., FA 1270459 (Nat. Arb.
Forum Aug. 6, 2009); see also DirecTV,
Inc. v. Jet Stream Entrs. Ltd., FA 1296495 (Nat. Arb. Forum Jan. 15, 2010);
see also Hershey Chocolate &
Confectionery Corp. v. Jet Stream Entrs. Ltd., FA 1252241 (Nat. Arb. Forum
April 27, 2009); see also Mary Kay Inc.
v. Jet Stream Entrs. Ltd., FA 1286672 (Nat. Arb. Forum Nov. 12, 2009). The Panel finds that Respondent’s
history of registering domain names in bad faith is evidence of bad faith
pursuant to Policy ¶ 4(b)(ii). See Crow v. LOVEARTH.net, FA 203208
(Nat. Arb. Forum Nov. 28, 2003) (finding a pattern of bad faith registration
and use pursuant to Policy ¶ 4(b)(ii) because the respondent had previously
acquired several domain names that reflected names of celebrities and requested
payment from such celebrities for the transfer of the domain name
registrations); see also Sony Kabushiki Kaisha v. Anderson,
FA 198809 (Nat. Arb. Forum Nov. 20, 2003) (finding a pattern of registering
domain names in bad faith pursuant to Policy ¶ 4(b)(ii) when the respondent
previously registered domain names incorporating well-known third party
trademarks).
The Panel finds that Policy ¶ 4(a)(iii) has been satisfied.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <lvalife.com> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: April 26, 2010
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