Goodwill Community Foundation, Inc. v. liuyuan
Claim Number: FA1410001587532
Complainant is Goodwill Community Foundation, Inc. (“Complainant”), represented by Neil C. Magnuson of Williams Mullen, North Carolina, USA. Respondent is liuyuan (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <gcfleranfree.org>, registered with Ourdomains Limited (R1972-LROR).
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 October 30, 2014; the National Arbitration Forum received payment on October 30, 2014.
On October 30, 2014, Ourdomains Limited (R1972-LROR) confirmed by e-mail to the National Arbitration Forum that the <gcfleranfree.org> domain name is registered with Ourdomains Limited (R1972-LROR) and that Respondent is the current registrant of the name. Ourdomains Limited (R1972-LROR) has verified that Respondent is bound by the Ourdomains Limited (R1972-LROR) 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 November 4, 2014, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 24, 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@gcfleranfree.org. Also on November 4, 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 December 3, 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 <gcfleranfree.org> domain name is confusingly similar to Complainant’s GCFLEARNFREE.ORG mark.
2. Respondent does not have any rights or legitimate interests in the <gcfleranfree.org> domain name.
3. Respondent registered and uses the <gcfleranfree.org> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
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 USPTO registration of its GCFLEARNFREE.ORG mark satisfies the requirements of Policy ¶ 4(a)(i) to show rights in a mark. See Koninklijke KPN N.V. v. Telepathy Inc., D2001-0217 (WIPO May 7, 2001) (finding that the Policy does not require that the mark be registered in the country in which the respondent operates and it is sufficient that the complainant can demonstrate a mark in some jurisdiction).
Respondent’s <gcfleranfree.org> domain name simply transposes the letters “a” and “r” in Complainant’s mark. Previous panels have found that a domain name differing from a mark by a single letter does not distinguish it from the mark. See Delta Corporate Identity, Inc. v. SearchTerms, FA 590678 (Nat. Arb. Forum Dec. 14, 2005) (concluding that the <dleta.com> domain name was confusingly similar to the complainant’s DELTA mark). Therefore, the Panel finds that Respondent’s <gcfleranfree.org> domain name is confusingly similar to Complainant’s GCFLEARNFREE.ORG 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 alleges that Respondent is not commonly known by the <gcfleranfree.org> domain name. The Panel WHOIS information identifies “Liuyuan” as the registrant of the disputed domain name. Complainant states that Respondent is neither licensed nor authorized to use the GCFLEARNFREE.ORG mark. Given the lack of evidence to infer otherwise, the Panel finds that Respondent is not commonly known by the <gcfleranfree.org> domain name pursuant to Policy ¶ 4(c)(ii). See Am. W. Airlines, Inc. v. Paik, FA 206396 (Nat. Arb. Forum Dec. 22, 2003) (“Respondent has registered the domain name under the name ‘Ilyoup Paik a/k/a David Sanders.’ Given the WHOIS domain name registration information, Respondent is not commonly known by the [<awvacations.com>] domain name.”).
Complainant also argues that Respondent has not provided any bona fide offering of goods or services, or made a legitimate noncommercial or fair use of the disputed domain name. Complainant argues that Respondent uses the disputed domain name to redirect Internet users to Respondent’s own website that contains a variety of links to businesses that compete with Complainant. The Panel notes that the disputed domain name resolves to a website featuring links such as “Online Distance Education”, “Distance Education School” and “Online Distance Learning”, which describe services that compete with those of Complainant. Previous panels have refused to find a bona fide offering of goods or services, or a legitimate noncommercial or fair use where the disputed domain name was used to promote hyperlinks competing with complainant. See Expedia, Inc. v. Compaid, FA 520654 (Nat. Arb. Forum Aug. 30, 2005) (finding that the respondent’s use of the <expediate.com> domain name to redirect Internet users to a website featuring links to travel services that competed with the complainant was not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii)). Therefore, the Panel finds that Respondent’s use of the disputed domain name does not constitute a bona fide offering of goods or services, or a legitimate noncommercial or fair use under Policy ¶ 4(c)(i) and Policy ¶ 4(c)(iii), respectively.
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
Respondent uses the disputed domain name to redirect Internet users away from Complainant’s website to its own website, where it hosts a variety of links, some of which are in direct competition with Complainant. Complainant argues that this disrupts Complainant’s business and is evidence of bad faith pursuant to Policy ¶ 4(b)(iii). The Panel agrees and finds that Respondent’s use of the disputed domain name is evidence of bad faith pursuant to 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 uses the <gcfleranfree.org> domain name to redirect Internet users to its own website for commercial gain. Previous panels routinely find bad faith under Policy ¶ 4(b)(iv), where the respondent intentionally redirects Internet users to its own website for commercial gain. 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.’”). Thus, the Panel finds that Respondent has acted in bad faith under Policy ¶ 4(b)(iv).
Respondent’s <gcfleranfree.org> domain name constitutes typosquatting. Panels have consistently held that typosquatting is meant to take advantage of typographical errors, and is thus motivated by bad faith. 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 observes that the <gcfleranfree.org> domain name differs from the GCFLEARNFREE.ORG mark by a single letter, namely, the “a” and “r” have been switched around. Thus, the Panel finds Respondent’s typosquatting is further evidence of bad faith 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 <gcfleranfree.org> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: December 9, 2014
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