Spark Networks USA, LLC v. Omar Ahmad
Claim Number: FA1401001541558
Complainant is Spark Networks USA, LLC (“Complainant”), represented by CitizenHawk, Inc., California, USA. Respondent is Omar Ahmad (“Respondent”), Jordan.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <christinmingle.com>, registered with Name.com, Inc.
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 January 30, 2014; the National Arbitration Forum received payment on January 30, 2014.
On February 3, 2014, Name.com, Inc. confirmed by e-mail to the National Arbitration Forum that the <christinmingle.com> domain name is registered with Name.com, Inc. and that Respondent is the current registrant of the name. Name.com, Inc. has verified that Respondent is bound by the Name.com, Inc. 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 February 10, 2014, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 3, 2014 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@christinmingle.com. Also on February 10, 2014, 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 March 7, 2014, 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 (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
1. Respondent’s <christinmingle.com> domain name is confusingly similar to Complainant’s CHRISTIANMINGLE mark.
2. Respondent does not have any rights or legitimate interests in the <christinmingle.com> domain name.
3. Respondent registered and uses the <christinmingle.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Respondent registered the <christinmingle.com> domain name on June 10, 2007, and uses it to advertise pay-per-click links that compete with Complainant.
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 Panel finds that Complainant’s registration of the CHRISTIANMINGLE mark with the USPTO sufficiently demonstrates its rights in the mark pursuant to Policy ¶ 4(a)(i). 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.”). The Panel notes that, although Respondent appears to reside and operate in Jordan, Policy ¶ 4(a)(i) does not require Complainant to register its mark in the country in which Respondent resides. See Renaissance Hotel Holdings, Inc. v. Renaissance Cochin, FA 932344 (Nat. Arb. Forum Apr. 23, 2007) (finding that it does not matter whether the complainant has registered its trademark in the country in which the respondent resides, only that it can establish rights in some jurisdiction).
Respondent’s <christinmingle.com> domain name removes the letter “a” from Complainant’s CHRISTIANMINGLE mark, which is inconsequential to a Policy ¶ 4(a)(i) determination. See 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”). Respondent also adds the generic top-level domain (“gTLD”) “.com” to Complainant’s mark, which also does not distinguish the domain name from Complainant’s mark under Policy ¶ 4(a)(i). See Countrywide Fin. Corp. v. Johnson & Sons Sys., FA 1073019 (Nat. Arb. Forum Oct. 24, 2007) (holding that the addition of the generic top-level domain (“gTLD”) “.com” was irrelevant). Accordingly, the Panel finds that Respondent’s <christinmingle.com> domain name is confusingly similar to Complainant’s CHRISTIANMINGLE mark.
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(i).
Once Complainant makes a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), 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 contends that Respondent is not commonly known by the <christinmingle.com> domain name, and is not sponsored by or legitimately affiliated with Complainant in any way. Complainant states that it has not given Respondent permission to use Complainant’s mark in a domain name. The WHOIS information identifies “Omar Ahmad” as the registrant of the disputed domain name. In Braun Corp. v. Loney, FA 699652 (Nat. Arb. Forum July 7, 2006), the panel concluded that 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 respondent was commonly known by the domain names, and complainant had not authorized respondent to register a domain name containing its registered mark. Thus, the Panel finds that Respondent is not commonly known by the <christinmingle.com> domain name pursuant to Policy ¶ 4(c)(ii).
Complainant alleges that Respondent is using the <christinmingle.com> domain name to redirect Internet users to a website featuring generic links to third-party websites, some of which directly compete with Complainant’s business. The Panel notes that the disputed domain name leads to a webpage featuring links such as “FREE CHRISTIAN DATING,” “CHRISTIAN DATING,” and “Meet Christian Singles.” Previous panels have determined that a respondent’s use of a disputed domain name to offer competing hyperlinks is not a bona fide offering of goods or services or a legitimate noncommercial or fair use. See United Servs. Auto. Ass’n v. Savchenko, FA 1105728 (Nat. Arb. Forum Dec. 12, 2007) (“The disputed domain name, <usaa-insurance.net>, currently resolves to a website displaying Complainant’s marks and contains links to Complainant’s competitors. The Panel finds this to be neither a bona fide offering of goods or services pursuant to Policy ¶4(c)(i) nor a legitimate noncommercial or fair use pursuant to Policy ¶4(c)(iii).”). Consequently, the Panel finds that Respondent is not using the <christinmingle.com> domain name for a Policy ¶ 4(c)(i) bona fide offering of goods or services or a Policy ¶ 4(c)(iii) legitimate noncommercial or fair use.
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
Respondent advertises pay-per-click links on the website resolving from the <christinmingle.com> domain name that promote products that compete with Complainant, diverting potential customers away from Complainant and disrupting Complainant’s business. This constitutes bad faith under Policy ¶ 4(b)(iii). See H-D Michigan Inc. v. Buell, FA 1106640 (Nat. Arb. Forum Jan. 2, 2008) (“The disputed domain names resolve to websites that list links to competitors of Complainant, evidence that Respondent intends to disrupt Complainant’s business, a further indication of bad faith pursuant to Policy ¶ 4(b)(iii).”).
Respondent’s uses the disputed domain name for a “click-through” website for which it likely receives revenue, demonstrating Respondent’s bad faith. In Associated Newspapers Ltd. v. Domain Manager, FA 201976 (Nat. Arb. Forum Nov. 19, 2003), the panel found that “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.’” The Panel finds that Respondent’s use of the <christinmingle.com> domain name for commercial gain is bad faith use and registration pursuant to Policy ¶ 4(b)(iv).
Respondent’s typosquatting is further evidence of bad faith under 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).”).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <christinmingle.com> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: March 17, 2014
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