Fandango, Inc. v. Isaac Goldstein
Claim Number: FA1007001333483
Complainant is Fandango,
Inc. (“Complainant”), represented by Steven
M. Levy,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <fandangos.com>, registered with Big House Services 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.
Bruce E. Meyerson as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on July 2, 2010.
On July 6, 2010, Big House Services Inc. confirmed by e-mail to the National Arbitration Forum that the <fandangos.com> domain name is registered with Big House Services Inc. and that Respondent is the current registrant of the name. Big House Services Inc. has verified that Respondent is bound by the Big House Services 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 July 12, 2010, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of August 2, 2010 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@fandangos.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On August 10, 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Bruce E. Meyerson 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.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <fandangos.com> domain name is confusingly similar to Complainant’s FANDANGO mark.
2. Respondent does not have any rights or legitimate interests in the <fandangos.com> domain name.
3. Respondent registered and used the <fandangos.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Fandango, Inc.,
provides movie information and sells movie tickets online. Complainant has offered its movie information
and tickets under its FANDANGO mark since 2000.
Complainant holds multiple trademark registrations with the United States
Patent and Trademark Office (“USPTO”) and
USPTO
FANDANGO Reg. No. 2,769,579 issued September 30, 2003
FANDANGO BUCKS Reg. No. 3,094,600 issued May 23, 2006
FANDANGO Reg. No. 3,241,364 issued May 15, 2007
FANDANGO Reg. No. 3,564,966 issued January 20, 2009
SIPO
FANDANGO Reg. No. 1,985,568 issued April 10, 2001
FANDANGO Reg. No. 1,985,591 issued April 10, 2001
Respondent, Isaac Goldstein, registered the <fandangos.com> domain name on May 11, 2010. The disputed domain name resolves to a website that features hyperlinks to Complainant’s competitors in the movie information and movie ticket sales 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."
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.
Complainant holds multiple trademark registrations with the USPTO and SIPO for its FANDANGO mark:
USPTO
FANDANGO Reg. No. 2,769,579 issued September 30, 2003
FANDANGO BUCKS Reg. No. 3,094,600 issued May 23, 2006
FANDANGO Reg. No. 3,241,364 issued May 15, 2007
FANDANGO Reg. No. 3,564,966 issued January 20, 2009
SIPO
FANDANGO Reg. No. 1,985,568 issued April 10, 2001
FANDANGO Reg. No. 1,985,591 issued April 10, 2001
The Panel finds these trademark registrations are sufficient
for Complainant to establish rights in its FANDANGO mark under Policy ¶ 4(a)(i). See Miller
Brewing
Complainant argues that Respondent’s <fandangos.com> domain name is confusingly similar to Complainant’s FANDANGO mark. The disputed domain name simply adds the letter “s” and the generic top-level domain (“gTLD”) “.com” to Complainant’s mark. The Panel finds the additions of a letter and a gTLD both fail to sufficiently distinguish the disputed domain name from Complainant’s mark. See Barnesandnoble.com LLC v. Your One Stop Web Shop, FA 670171 (Nat. Arb. Forum May 3, 2006) (finding that the additions of the letter “s” and generic top-level domains to the disputed <barnesandnobles.info> and <barnesandnobles.biz> domain names failed to avoid the confusing similarity between the domain names and the complainant’s BARNESANDNOBLE.COM mark pursuant to Policy ¶ 4(a)(i)); see also Trip Network Inc. v. Alviera, FA 914943 (Nat. Arb. Forum Mar. 27, 2007) (concluding that the affixation of a gTLD to a domain name is irrelevant to a Policy ¶ 4(a)(i) analysis). Consequently, the Panel determines that Respondent’s <fandangos.com> domain name is confusingly similar to Complainant’s FANDANGO mark under Policy ¶ 4(a)(i).
The Panel finds Policy ¶ 4(a)(i) has been satisfied.
Complainant alleges that Respondent lacks rights and legitimate interests in the <fandangos.com> domain name. When a complainant makes a prima facie case in support of its allegations, the burden shifts to the respondent to prove that it does have rights or legitimate interests pursuant to Policy ¶ 4(a)(ii). The Panel finds Complainant has made a prima facie case. Due to Respondent’s failure to respond to the Complaint, the Panel may assume that Respondent does not have rights or legitimate interests in the <fandangos.com> domain name. However, the Panel will examine the record to determine whether Respondent has rights or legitimate interests in the disputed domain name under Policy ¶ 4(c). 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 Policy ¶ 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 Vanguard Group, Inc. v. Collazo, FA 349074 (Nat. Arb. Forum Dec. 1, 2004) (finding that because the respondent failed to submit a Response, “Complainant’s submission has gone unopposed and its arguments undisputed. In the absence of a Response, the Panel accepts as true all reasonable allegations . . . unless clearly contradicted by the evidence.”).
Complainant argues that Respondent is not commonly known by the disputed domain name. Previous panels have concluded that a respondent is not commonly known by a disputed domain name where the WHOIS information is not similar to the disputed domain name, the respondent is not authorized to use the complainant’s mark, and the respondent fails to respond to the complaint. 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 IndyMac Bank F.S.B. v. Eshback, FA 830934 (Nat. Arb. Forum Dec. 7, 2006) (finding that the respondent failed to establish rights and legitimate interests in the <emitmortgage.com> domain name as the respondent was not authorized to register domain names featuring the complainant’s mark and failed to submit evidence of that it is commonly known by the disputed domain name). In this case, the WHOIS information lists “Isaac Goldstein” as the domain name registrant, which the Panel finds not similar to the <fandangos.com> domain name. Complainant asserts that Respondent is not authorized to use Complainant’s FANDANGO mark. Respondent has failed to present any evidence to suggest that Respondent is commonly known by the <fandangos.com> domain name. Based on the evidence in the record the Panel concludes that Respondent is not commonly known by the <fandangos.com> domain name pursuant to Policy ¶ 4(c)(ii).
Complainant claims Respondent’s <fandangos.com> domain name resolves to a website featuring pay-per-click hyperlinks to Complainant’s competitors in the movie information and tickets business. Past panels have found similar uses to not constitute bona fide offerings of goods or services under Policy ¶ 4(c)(i) or legitimate noncommercial uses under Policy ¶ 4(c)(iii). See Metro. Life Ins. Co. v. Bonds, FA 873143 (Nat. Arb. Forum Feb. 16, 2007) (concluding that using a confusingly similar domain name to divert Internet users to competing websites does not represent 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 also 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). Therefore, the Panel finds that Respondent’s use of the <fandangos.com> domain name does not constitute a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use of the disputed domain name pursuant to Policy ¶ 4(c)(iii).
The Panel finds Policy ¶ 4(a)(iii) has been satisfied.
Respondent’s <fandangos.com> domain name resolves to a website featuring hyperlinks to Complainant’s competitors in the movie information and ticket business. The Panel assumes Complainant loses business from this use when Internet users interested in Complainant access the resolving website because of Respondent’s confusingly similar disputed domain name and purchase movie tickets from a competitor of Complainant. Thus, the Panel finds that Respondent’s use disrupts Complainant’s business and therefore Respondent’s use of the <fandangos.com> domain name constitutes bad faith registration and use under 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)); see also St. Lawrence Univ. v. Nextnet Tech, FA 881234 (Nat. Arb. Forum Feb. 21, 2007) (“This Panel concludes that by redirecting Internet users seeking information on Complainant’s educational institution to competing websites, Respondent has engaged in bad faith registration and use pursuant to Policy ¶ 4(b)(iii).”).
Complainant alleges, and the Panel infers, that Respondent
receives click-through fees from the aforementioned hyperlinks. Internet users may become confused as to
Complainant’s sponsorship of, or affiliation with, the disputed domain name and
resolving website due to Respondent’s use of the confusingly similar <fandangos.com>
domain name. The Panel finds Respondent
is attempting to profit from that confusion, which constitutes bad faith
registration and use pursuant to Policy ¶ 4(b)(iv). See
The Panel finds 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 <fandangos.com> domain name be TRANSFERRED from Respondent to Complainant.
Bruce E. Meyerson, Panelist
Dated: August 11, 2010
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