LifeLock v. Above.com Domain Privacy
Claim Number: FA1408001577369
Complainant is LifeLock (“Complainant”), represented by CitizenHawk, Inc., California, USA. Respondent is Above.com Domain Privacy (“Respondent”), Australia.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <lefelock.com> and <lilfelock.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.
Ho Hyun Nahm, Esq. 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 <lefelock.com> and <lilfelock.com> domain names are registered with Above.com Pty Ltd. and that Respondent is the current registrant of the names. 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 3, 2014, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 23, 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@lefelock.com, postmaster@lilfelock.com. Also on September 3, 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 September 25, 2014, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Ho Hyun Nahm, Esq. 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
i. Complainant uses the LIFELOCK mark to promote its identity theft prevention services. The LIFELOCK mark has been registered with the United States Patent and Trademark Office ("USPTO") (e.g., Reg. No. 3,346,847, registered Dec. 4, 2007). The disputed domain names are confusingly similar to the Complainant’s mark.
ii. Respondent has never been known by either of the <lefelock.com> and <lilfelock.com> domain names and has never been authorized to use the LIFELOCK mark in trade. The disputed domain names resolve to Complainant’s own websites. As such, Respondent has no rights or legitimate interests in retaining the disputed domain names.
iii. Respondent is exploiting an affiliate agreement in the utmost bad faith by sending Internet users through to Complainant’s own website. The disputed domain names are mere typosquats on the LIFELOCK mark. Therefore, Respondent has registered and used the domain names in bad faith.
B. Respondent
Respondent did not submit a response. The Panel notes that the <lefelock.com> and <lilfelock.com> domain names were registered on November 3, 2011, and September 9, 2010 respectively.
Complainant established that it had rights in the mark contained in the disputed domain names. Each of the disputed domain names is confusingly similar to Complainant’s protected mark.
Respondent has no rights to or legitimate interests in the disputed domain names.
Respondent registered and used the disputed domain names 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 it uses the LIFELOCK mark to promote its identity theft prevention services and privacy protection business. The Panel notes the LIFELOCK mark has been registered with the United States Patent and Trademark Office ("USPTO") (e.g., Reg. No. 3,346,847, registered Dec. 4, 2007). The Panel agrees such registration sufficiently evidences Complainant’s rights in the LIFELOCK mark. See W.W. Grainger, Inc. v. Above.com Domain Privacy, FA 1334458 (Nat. Arb. Forum Aug. 24, 2010) (stating that “the Panel finds that USPTO registration is sufficient to establish these [Policy ¶ 4(a)(i)] rights even when Respondent lives or operates in a different country.”)
Complainant further claims the <lefelock.com> and <lilfelock.com> domain names are confusingly similar to the LIFELOCK mark. The Panel agrees that both domain names effectively constitute misspellings of the LIFELOCK mark with the addition of the “.com” generic top-level domain (“gTLD”). The Panel agrees that these alterations are simply not enough to avoid a finding of Policy ¶ 4(a)(i) confusing similarity. See Google Inc. v. N/A/ k gautam, FA 1524232 (Nat. Arb. Forum Nov. 18, 2013) (finding that the disputed domain name is confusingly similar to the at-issue mark despite the misspelling of the mark by omitting letters, the addition of a generic term, and the addition of a generic top-level domain).
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 claims Respondent has never been known by either of the <lefelock.com> and <lilfelock.com> domain names and has never been authorized to use the LIFELOCK mark in trade. The Panel observes “ABOVE.COM PTY LTD.” is listed as the registrant of record for the disputed domain names. The Panel concludes that no evidence here suggests Respondent has ever been commonly known by any of the <lefelock.com> and <lilfelock.com> domain names as per Policy ¶ 4(c)(ii). See Wells Fargo & Co. v. Onlyne Corp. Services11, Inc., FA 198969 (Nat. Arb. Forum Nov. 17, 2003) (“Given the WHOIS contact information for the disputed domain [name], one can infer that Respondent, Onlyne Corporate Services11, is not commonly known by the name ‘welsfargo’ in any derivation.”).
Complainant claims that Respondent has no rights or legitimate interests in retaining the <lefelock.com> and <lilfelock.com> domain names because they resolve to Complainant’s own websites. The Panel observes the domain names, and their respective source code, illustrate how Respondent uses the domain names to send Internet users to Complainant’s own websites. See Compl., at Attached Ex. H. The Panel concludes there is nothing legitimate under Policy ¶¶ 4(c)(i), (iii), in using these domain names to send Internet users to Complainant’s own websites. See Direct Line Ins. plc v. Low-cost-domain, FA 1337658 (Nat. Arb. Forum Sept. 8, 2010) (“The Panel finds that using Complainant’s mark in a domain name over which Complainant has no control, even if the domain name redirects to Complainant’s actual site, is not consistent with the requirements of Policy ¶ 4(c)(i) or ¶ 4(c)(iii) . . .”).
The Panel is of the view that Complainant may prevail despite making no arguments under Policy ¶ 4(b), so long as there is some evidence of bad faith use and registration. See Digi Int’l Inc. v. DDI Sys., FA 124506 (Nat. Arb. Forum Oct. 24, 2002) (determining that Policy ¶ 4(b) sets forth certain circumstances, without limitation, that shall be evidence of registration and use of a domain name in bad faith).
Complainant first contends that by sending Internet users through to Complainant’s own website, Respondent is exploiting an affiliate agreement in the utmost bad faith. See Compl., at Attached Ex. M. As the Panel agrees that such an affiliate arrangement exists, the Panel holds the evidence as provided in Exhibit H supports a finding that Respondent’s use of the domain name is a Policy ¶ 4(a)(iii) bad faith use of domain names in violation of the agreement. 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).
Complainant claims the <lefelock.com> and <lilfelock.com> domain names are mere typosquats on the LIFELOCK mark. The Panel finds Policy ¶ 4(a)(iii) bad faith here as it agrees the <lefelock.com> and <lilfelock.com> domain names were registered to embed mere common misspellings of the LIFELOCK mark. 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).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <lefelock.com> and <lilfelock.com> domain names be TRANSFERRED from Respondent to Complainant.
Ho Hyun Nahm, Esq., Panelist
Dated: October 1, 2014
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