LifeLock v. Above.com Legal
Claim Number: FA1408001577364
Complainant is LifeLock (“Complainant”), represented by CitizenHawk, Inc., California, USA. Respondent is Above.com Legal (“Respondent”), Australia.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <lifelick.com>, registered with Above.com Pty Ltd.
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 August 28, 2014; the National Arbitration Forum received payment on August 28, 2014.
On September 1, 2014, Above.com Pty Ltd. confirmed by e-mail to the National Arbitration Forum that the <lifelick.com> domain name is registered with Above.com Pty Ltd. and that Respondent is the current registrant of the name. Above.com Pty Ltd. has verified that Respondent is bound by the Above.com Pty Ltd. 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 September 8, 2014, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 29, 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@lifelick.com. Also on September 8, 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 October 2, 2014, 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" 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. Complainant owns the LIFELOCK mark through registration with the United States Patent and Trademark Office ("USPTO") (Reg. No. 3,346,847 registered Dec. 4, 2006). Complainant uses the LIFELOCK mark in furtherance of its identity theft protection services. The <lifelick.com> domain name is confusingly similar to the LIFELOCK mark.
2. Respondent lacks rights in the disputed domain name. Respondent has never been commonly known by the <lifelick.com> name. Further, Respondent has no affiliation with Complainant.
3. Respondent uses the disputed domain name to direct users to Complainant’s own website in violation of the parties’ affiliate agreement.
4. Respondent has engaged in bad faith use and registration. Respondent’s willingness to sell the disputed domain name also evidences bad faith. Further, Respondent is using the domain name in violation of its affiliate agreement with Complainant, which further demonstrates bad faith.
5. Finally, Respondent’s actions amount to typosquatting.
6. Respondent registered the disputed domain name on March 25, 2012.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant holds trademark rights for the LIFELOCK mark. Respondent’s domain name is confusingly similar to Complainant’s LIFELOCK mark. Complainant has established that Respondent lacks rights or legitimate interests in the use of the <lifelick.com> domain name, and that Respondent registered and uses the domain name 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 uses the LIFELOCK mark in furtherance of its identity theft protection services. Complainant owns the LIFELOCK mark through a registration with the United States Patent and Trademark Office ("USPTO") (Reg. No. 3,346,847 registered Dec. 4, 2006). Complainant’s registration of the LIFELOCK mark with the USPTO sufficiently demonstrates Complainant’s rights in the mark for purposes of Policy ¶ 4(a)(i). 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).
Complainant argues the <lifelick.com> domain name is confusingly similar to the LIFELOCK mark. The disputed domain name differs by the mere substitution of the letter “o” in LOCK with the letter “i,” and the inclusion of a generic top-level domain. Such alterations are insufficient to survive a Policy ¶ 4(a)(i) analysis. Notably, in Belkin Components v. Gallant, FA 97075 (Nat. Arb. Forum May 29, 2001), the panel found the <belken.com> domain name confusingly similar to the complainant's BELKIN mark because the name merely replaced the letter “i” in the complainant's mark with the letter “e.” Accordingly, the Panel concludes that the <lifelick.com> domain name is confusingly similar to the LIFELOCK mark under Policy ¶ 4(a)(i).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(i).
Complainant alleges that Respondent holds no rights or legitimate interests in the disputed domain name. This allegation must be supported with a prima facie showing by Complainant under Policy ¶ 4(a)(ii). After a complainant successfully makes a prima facie case, a respondent is faced with the burden of proving it does have rights or legitimate interests in the domain name. In Swedish Match UK Ltd. v. Admin, Domain, FA 873137 (Nat. Arb. Forum Feb. 13, 2007), the panel held that when a complainant produces a prima facie case, the burden of proof then shifts to the respondent to demonstrate its rights or legitimate interests in the domain name under Policy ¶ 4(c). See also Compagnie Generale des Matieres Nucleaires v. Greenpeace Int’l, D2001-0376 (WIPO May 14, 2001) (“For the purposes of this sub paragraph, however, it is sufficient for the Complainant to show a prima facie case and the burden of proof is then shifted on to the shoulders of Respondent. In those circumstances, the common approach is for respondents to seek to bring themselves within one of the examples of paragraph 4(c) or put forward some other reason why they can fairly be said to have a relevant right or legitimate interests in respect of the domain name in question.”). The Panel holds that Complainant has made a prima facie case.
Complainant first claims Respondent has never been commonly known by the <lifelick.com> name, and Respondent has no affiliation with Complainant. The WHOIS record identifies “Above.com Legal” as the registrant, which provides no nexus between Respondent and the <lifelick.com> domain name. See Braun Corp. v. Loney, FA 699652 (Nat. Arb. Forum July 7, 2006) (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 known by the domain names, and the complainant had not authorized the respondent to register a domain name containing its registered mark). Based on the record in this matter, the Panel concludes that Respondent is not commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii).
The record shows that Respondent uses the disputed domain name to direct users to Complainant’s own website in violation of the parties’ affiliate agreement. The use of a confusingly similar domain name to redirect Internet users to a complainant’s own website in violation of an affiliate agreement does not fall within the protections of Policy ¶¶ 4(c)(i) and (iii). For example, in Sports Auth. Mich., Inc. v. Domhold Co., FA 135011 (Nat. Arb. Forum Jan. 9, 2003), the panel found that registering a domain name which differs by one letter from the complainant’s commercial website, and using that domain name to redirect Internet consumers to the complainant’s website as a part of the complainant’s affiliate program is not a bona fide offering of goods or services nor a noncommercial use of the domain name. The Panel concludes that Respondent’s attempt to resolve the disputed domain name to Complainant’s website in violation of Complainant’s affiliate program demonstrates a lack of rights and legitimate interests in the domain name under Policy ¶¶ 4(c)(i) and (iii).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant argues Respondent’s willingness to sell the disputed domain name shows bad faith. A general offer to sell a domain name may establish Policy ¶ 4(b)(i) bad faith. As the panel in CBS Broad. Inc. v. Worldwide Webs, Inc., D2000-0834 (WIPO Sept. 4, 2000), explained, “There is nothing inherently wrongful in the offer or sale of domain names, without more, such as to justify a finding of bad faith under the Policy. However, the fact that domain name registrants may legitimately and in good faith sell domain names does not imply a right in such registrants to sell domain names that are identical or confusingly similar to trademarks or service marks of others without their consent.” The Panel agrees that Respondent’s efforts to sell the disputed domain name suggests bad faith under these circumstances; accordingly, the Panel finds evidences of bad faith under Policy ¶ 4(b)(i).
Further, Complainant argues Respondent is using the domain name in violation of its affiliate agreement with Complainant, which further demonstrates bad faith. The Panel agrees that Respondent’s use of the disputed domain name in connection with Complainant’s affiliate program and in violation of the program’s terms, demonstrates that Respondent attempted to opportunistically benefit in violation of Policy ¶ 4(a)(iii). See Cricket Commc’ns, Inc. v. Oliver, FA 954005 (Nat. Arb. Forum May 29, 2007) (finding bad faith registration and use where the respondent registered domain names containing the complainant’s mark after enrolling in the complainant’s affiliate program).
Finally, Complainant claims Respondent’s actions amount to typosquatting, and therefore support a finding of bad faith. The <lifelick.com> domain name differs from the LIFELOCK mark by the substitution of the letter “o” in LOCK with the letter “i.” The Panel agrees that Respondent is attempting to prey on basic typographical errors on the part of Internet users, which amounts to bad faith pursuant to Policy ¶ 4(a)(iii). See Bank of Am. Corp. v. Tak Ume domains for sale, FA 154528 (Nat. Arb. Forum May 19, 2003) (holding that the practice of typosquatting “diverts Internet users who misspell Complainant’s mark to a website apparently owned by Respondent for Respondent’s commercial gain. ‘Typosquatting’ has been recognized as evidencing bad faith registration and use under Policy ¶ 4(b)(iv).”).
The Panel finds 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 <lifelick.com> domain name be TRANSFERRED from Respondent to Complainant.
Bruce E. Meyerson, Panelist
Dated: October 9, 2014
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