Xcentric Ventures, LLC d/b/a www.RipoffReport.com v. Fundacion Private Whois / Domain Administrator
Claim Number: FA1204001441027
Complainant is Xcentric Ventures, LLC d/b/a www.RipoffReport.com (“Complainant”), represented by David Gingras, Arizona, USA. Respondent is Fundacion Private Whois / Domain Administrator (“Respondent”), Panama.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <ripoffreport.info>, registered with Internet.bs Corp. (R457-LRMS).
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.
Complainant submitted a Complaint to the National Arbitration Forum electronically on April 25, 2012; the National Arbitration Forum received payment on April 25, 2012.
On April 26, 2012, Internet.bs Corp. (R457-LRMS) confirmed by e-mail to the National Arbitration Forum that the <ripoffreport.info> domain name is registered with Internet.bs Corp. (R457-LRMS) and that Respondent is the current registrant of the name. Internet.bs Corp. (R457-LRMS) has verified that Respondent is bound by the Internet.bs Corp. (R457-LRMS) 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 May 1, 2012, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 21, 2012 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@ripoffreport.info. Also on May 1, 2012, 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 May 24, 2012, 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" 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 alleges that it owns the trademark registration with the United States Patent and Trademark Office (“USPTO”) for the RIP-OFF REPORT mark (Reg. No 2,958,949 registered June 7, 2005). Complainant claims that it operates an online forum for consumer complaints and business rebuttals, and also publishes consumer news on topics covering identity theft, credit card fraud, and other scams. Complainant alleges that Respondent registered the <ripoffreport.info> domain name on April 14, 2012, and submits evidence that the disputed domain name resolves to a web page that attempts to pass itself off as Complainant’s website. See Exhibits C and E. Complainant argues that Respondent’s disputed domain name is identical to Complainant’s RIP-OFF REPORT mark; that Respondent is not commonly known by the <ripoffreport.info> domain name and does not have authorization to use the RIP-OFF REPORT mark; and that Respondent profits from its use of the disputed domain name by hosting paid advertising links.
Respondent did not submit a formal Response. However, Respondent exchanged e-mails with Complainant’s General Counsel claiming that Respondent was not aware the Complainant’s website existed, and that Respondent did not intend to include content in its website that was identical to Complainant’s website. Complainant replied, stating that it was willing to withdraw the Complaint in exchange for the domain name. Respondent agreed to transfer the domain name and provide Complainant with the authorization code for the disputed domain name. Complainant did not reply to Respondent’s final e-mail.
B. Respondent
Respondent failed to submit a Response in this proceeding.
1. Complainant has rights in the RIP-OFF-REPORT mark.
2. Respondent’s <ripoffreport.info> domain name is identical to Complainant’s mark.
3. Respondent has no rights to or legitimate interests in the domain name.
4. Respondent registered and used the domain in bad faith.
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 to own trademark registrations with the USPTO for its RIP-OFF REPORT mark (Reg. No. 2,958,949 registered June 7, 2005). Previous panels have held that a complainant secures rights in its mark through registration of the mark with the USPTO. See Microsoft Corp. v. Burkes, FA 652743 (Nat. Arb. Forum Apr. 17, 2006) (“Complainant has established rights in the MICROSOFT mark through registration of the mark with the USPTO.”); see also Bloomberg L.P. v. Johnston, FA 760084 (Nat. Arb. Forum Oct. 25, 2006) (finding that the complainant had established rights in the BLOOMBERG mark through registration with the United States Patent and Trademark Office). The Panel concludes that Complainant established rights in it RIP-OFF REPORT mark through registration with the USPTO in satisfaction of Policy ¶ 4(a)(i). Further, the Panel finds that Complainant is not required to register its mark in the country where Respondent resides and operates, for the purposes of Policy ¶ 4(a)(i). See 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); see also Wal-Mart Stores, Inc. v. Stork, D2000-0628 (WIPO Aug. 11, 2000) (finding the complainant has rights to the name when the mark is registered in a country even if the complainant has never traded in that country).
Complainant alleges that Respondent’s <ripoffreport.info> domain name is identical to its RIP-OFF REPORT mark, arguing that adding the generic top-level domain (“gTLD”) “.info” does not alleviate confusing similarity from its mark. The Panel notes that the disputed domain name eliminates the spaces between the terms of the mark and eliminates the hyphen. The Panel finds that Respondent’s disputed domain name is identical to the RIP-OFF REPORT mark under Policy ¶ 4(a)(i), despite the changes made in the domain name. See Hannover Ruckversicherungs-AG v. Ryu, FA 102724 (Nat. Arb. Forum Jan. 7, 2001) (finding <hannoverre.com> to be identical to HANNOVER RE, “as spaces are impermissible in domain names and a generic top-level domain such as ‘.com’ or ‘.net’ is required in domain names”); see also Innomed Techs., Inc. v. DRP Servs., FA 221171 (Nat. Arb. Forum Feb. 18, 2004) (finding that omission of a hyphen does not alter the fact that a domain name is identical to a complainant’s mark).
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 is not commonly known by the <ripoffreport.info> domain name under Policy ¶ 4(c)(ii). Complainant offers evidence of the WHOIS information associated with the disputed domain name, which the Panel finds identifies “Domain Administrator” as the registrant. See Exhibit D. The panel in Gallup, Inc. v. Amish Country Store, FA 96209 (Nat. Arb. Forum Jan. 23, 2001), held that a respondent “does not have rights in a domain name when the respondent is not known by the mark.” In Wells Fargo & Co. v. Onlyne Corp. Services11, Inc., FA 198969 (Nat. Arb. Forum Nov. 17, 2003), the panel stated that, considering the WHOIS information, which listed respondent as having a name unrelated to the domain name, one can infer that the respondent is not commonly known by the disputed domain name in any way. The Panel determines that the WHOIS information associated with the disputed domain name does not support a finding that Respondent is commonly known by the <ripoffreport.info> domain name and therefore lacks rights and legitimate interests under Policy ¶ 4(c)(ii).
Complainant alleges that Respondent uses the disputed domain name to pass itself off as Complainant and provides screenshots of Respondent’s resolving website, which the Panel finds has hyperlinks and advertisements displayed, as well as consumer information and news. Complainant argues that such use is not in relation with a bona fide offering of goods or services or a legitimate noncommercial or fair use. Alternatively, Complainant argues in its Policy ¶ 4(b)(iii) paragraph that Respondent’s resolving website features hyperlinks to competing websites, as well as to Complainant’s own website. The Panel finds that using a domain name to host a website that displays competing hyperlinks and hyperlinks to Complainant’s website 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). The Panel concludes that by including similar content on its resolving webpage, Respondent is attempting to pass itself off as Complainant, which is not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), nor is it a legitimate noncommercial or fair use of the disputed domain name pursuant to Policy ¶ 4(c)(iii). See Am. Int’l Group, Inc. v. Busby, FA 156251 (Nat. Arb. Forum May 30, 2003) (finding that the respondent attempted to pass itself off as the complainant because the domain name duplicated the complainant’s logo, as well as the complainant’s mark); see also TM Acquisition Corp. v. Sign Guards, FA 132439 (Nat. Arb. Forum Dec. 31, 2002) (finding that the respondent’s diversionary use of the complainant’s marks to send Internet users to a website which displayed a series of links, some of which linked to the complainant’s competitors, was not a bona fide offering of goods or services).
Complainant contends that Respondent uses the <ripoffreport.info> domain name to host a website featuring links to competing websites and argues that Respondent intentionally registered and uses the domain name to disrupt Complainant’s business. Previous panels have stated that using a trademark registration to intentionally disrupt the complainant’s website is evidence of bad faith registration and use under Policy ¶ 4(b)(iii). See Asbury Auto. Group, Inc. v. Tex. Int’l Property Assocs., FA 958542 (Nat. Arb. Forum May 29, 2007) (finding that the respondent’s use of the domain name to operate a website with links to businesses offering similar goods and services in competition with the complainant was evidence sufficient to satisfy a finding of bad faith registration and use); 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).”). The Pane finds that Respondent’s registration and use of the disputed domain name is in bad faith under Policy ¶ 4(b)(iii) as demonstrated by Respondent’s maintenance of a website featuring links to Complainant’s competitors.
Complainant argues that Respondent collects fees generated from “click-through” links as a result of visitors Respondent attracts to its website. Complainant alleges that Respondent’s use of a domain name identical to the RIP-OFF REPORTS mark serves to confuse website visitors, attract Internet traffic, and create a profit for Respondent, which amounts to bad faith registration and use under Policy ¶ 4(b)(iv). The Panel determines that Respondent’s use of the <ripoffreport.info> domain name to attract consumers, create a likelihood of confusion, and make a commercial profit as a result of the confusion demonstrates bad faith registration and use pursuant to Policy ¶ 4(b)(iv). See Associated Newspapers Ltd. v. Domain Manager, FA 201976 (Nat. Arb. Forum Nov. 19, 2003) (“Respondent's prior use of the <mailonsunday.com> domain name is evidence of bad faith pursuant to Policy ¶ 4(b)(iv) because the domain name provided links to Complainant's competitors and Respondent presumably commercially benefited from the misleading domain name by receiving ‘click-through-fees.’”); see also State Farm Mut. Auto. Ins. Co. v. Prop. By Location, LLC, FA 1282843 (Nat. Arb. Forum Dec. 13, 2009) (holding that the respondent’s domain name confuses Internet users as to the complainant’s affiliation with the resulting website, from which the respondent receives click-through fees.).
Complainant provides evidence that it argues demonstrates Respondent’s website “falsely seeks to pass itself off as being owned by ‘Ripoff Report’,” which Complainant claims suffices to establish bad faith under Policy ¶ 4(a)(iii). See Exhibit E. The Panel notes that the resolving website is not identical to Complainant’s website and does not imitate Complainant’s website in style, layout, or color use, but does include information and services similar to those offered on Complainant’s website. The Panel concludes that such use is an attempt by Respondent to pass itself off as Complainant, which is evidence of bad faith registration and use under Policy ¶ 4(a)(iii). See Xcentric Ventures, L.L.C. v. Domain Privacy LTD, FA 1087178 (Nat. Arb. Forum Nov. 20, 2007) (stating that the respondent’s domain name attempted to pass itself off as the complainant’s site by diverting Internet users to its own competing website, which the panel found supported a finding of the respondent’s 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 <ripoffreport.info> domain name be TRANSFERRED from Respondent to Complainant.
Tyrus R. Atkinson, Jr., Panelist
Dated: June 7, 2012
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