GolfNow, Inc. v. ORM Ltd.
Claim Number: FA1611001704535
Complainant is GolfNow, Inc. (“Complainant”), represented by CitizenHawk, Inc., California, USA. Respondent is ORM Ltd. (“Respondent”), Cayman Island.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <golfnpw.com>, registered with Tucows Domains Inc.
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.
Hon. Karl v. Fink (Ret.) as Panelist.
Complainant submitted a Complaint to the Forum electronically on November 23, 2016; the Forum received payment on November 23, 2016.
On November 28, 2016, Tucows Domains Inc. confirmed by e-mail to the Forum that the <golfnpw.com> domain name is registered with Tucows Domains Inc. and that Respondent is the current registrant of the name. Tucows Domains Inc. has verified that Respondent is bound by the Tucows Domains 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 December 1, 2016, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 21, 2016 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@golfnpw.com. Also on December 1, 2016, 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 Forum transmitted to the parties a Notification of Respondent Default.
On December 29, 2016, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Hon. Karl V. Fink (Ret.) as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the 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 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, GolfNow, LLC is an online tee time retailer that caters to customers around the world. Complainant has rights in the GOLFNOW and GOLFNOW.COM marks based upon registration with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 3,348,231, registered Dec. 4, 2007; and Reg. No. 3,348,235, registered Dec. 4, 2007; respectively.) Respondent’s <golfnpw.com> is confusingly similar to Complainant’s GOLFNOW.COM mark, as it contains the mark in its entirety, merely differing through the replacing of the second “o” with a “p” to form a deliberately typosquatted domain name.
Respondent does not have rights or legitimate interests in the disputed domain name, as Respondent is not commonly known by the domain name, nor has Complainant authorized Respondent to use the GOLFNOW.COM or GOLFNOW mark in a domain name. Respondent’s <golfnpw.com> redirects to a parked page featuring generic links as well as links which compete with Complainant’s business. Such use does not amount to a bona fide offering of goods or services or a legitimate noncommercial or fair use pursuant to Policy ¶¶ 4(c)(i) & 4(c)(iii).
Respondent’s registration and use of its <golfnpw.com> is in bad faith. Respondent has offered up the disputed domain name for sale, evidence of bad faith under Policy ¶ 4(b)(i). Further, Respondent is a serial cybersquatter engaged in an ongoing pattern of bad faith registration and use of domain names. Additionally, by redirecting Internet users to a parked webpage with generic and competing links, Respondent evinces bad faith under Policy ¶¶ 4(b)(iii) & 4(b)(iv). Finally, Respondent’s typosquatting behavior is evidence of bad faith pursuant to Policy ¶ 4(a)(iii).
B. Respondent
Respondent failed to submit a Response in this proceeding.
For the reasons set forth below, the Panel finds Complainant is entitled to the requested relief of transfer of the <golfnpw.com> domain name.
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(f), 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 (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 rights in the GOLFNOW and GOLFNOW.COM marks based upon registration with the USPTO (Reg. No. 3,348,231, registered Dec. 4, 2007; and Reg. No. 3,348,235, registered Dec. 4, 2007; respectively.) Registration of a mark with the USPTO is sufficient to establish rights in that mark pursuant to the Policy. See T-Mobile USA, Inc. dba MetroPCS v. Ryan G Foo / PPA Media Services, FA 1627542 (Forum Aug. 9, 2015) (finding that Complainant has rights in the METROPCS mark through its registration with the United States Patent and Trademark Office). The Panel therefore holds that Complainant’s registration of its marks with the USPTO is sufficient to establish rights in the marks under Policy ¶ 4(a)(i).
Complainant next claims Respondent’s <golfnpw.com> is confusingly similar to its marks, as the domain contains each mark in its entirety, merely differing through the replacing of the second “o” with a “p.” The disputed domain also differs from the GOLFNOW mark through the addition of a gTLD. Misspelling a mark by substituting one letter for another in a domain name does not distinguish the domain name in an analysis of confusing similarity, especially when those letters are adjacent on a standard computer keyboard. See WordPress Foundation v. Bernat Lubos, FA 1613444 (Forum May 21, 2015) (finding that the <worspress.org> domain name is confusingly similar to the WORDPRESS mark under Policy ¶4(a)(i), stating, “On a standard QWERTY keyboard, the letters ‘s’ and ‘d’ are adjacent. A minor misspelling is not normally sufficient to distinguish a disputed domain name from a complainant’s mark.”). Additionally, addition of a gTLD is irrelevant in an analysis of confusing similarity. See Trip Network Inc. v. Alviera, FA 914943 (Forum Mar. 27, 2007) (concluding that the affixation of a gTLD to a domain name is irrelevant to a Policy ¶ 4(a)(i) analysis). Accordingly, the Panel finds the disputed domain name is confusingly similar to one or both of Complainant’s marks for the purposes of Policy ¶ 4(a)(i).
Complainant has proved this element.
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 (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 (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 has no rights or legitimate interests in <golfnpw.com> as Respondent is not commonly known by the domain name, nor has Complainant authorized Respondent to use its marks in a domain name. Where a response is lacking, WHOIS information can support a finding that the respondent is not commonly known by the disputed domain name. See Chevron Intellectual Property LLC v. Fred Wallace, FA1506001626022 (Forum July 27, 2015) (finding that the respondent was not commonly known by the <chevron-europe.com> domain name under Policy ¶ 4(c)(ii), as the WHOIS information named “Fred Wallace” as registrant of the disputed domain name). The WHOIS information of record identifies Respondent as “ORM LTD.” Additionally, lack of evidence in the record to indicate that the respondent had been authorized to register a domain name using a complainant’s mark supports a finding that Respondent does not have rights or legitimate interests in a disputed domain name. See Navistar International Corporation v. N Rahmany, FA1505001620789 (Forum June 8, 2015) (finding that the respondent was not commonly known by the disputed domain name where the complainant had never authorized the respondent to incorporate its NAVISTAR mark in any domain name registration). The Panel therefore finds under Policy ¶ 4(c)(ii) that Respondent has not been commonly known by the disputed domain name.
Complainant further argues Respondent’s lack of rights or legitimate interests in the disputed domain name is evinced by its use of the domain name to redirect to a landing page featuring generic and competing links. Use of a disputed domain to resolve to a parked page with generic and/or competing links can be held as a failure to use the domain name for a bona fide offering of goods or services or legitimate noncommercial or fair use. See Provide Commerce, Inc. v. e on Craze, FA1506001626318 (Forum Aug. 11, 2015) (holding that the respondent was not making a bona fide offering of goods or services, or a legitimate noncommercial or fair use of the disputed domain name under Policy ¶¶ 4(c)(i) and (iii) where the respondent was using the disputed domain name to host generic links to third-party websites, some of which directly competed with the complainant’s business). Respondent’s <golfnpw.com> redirects to a website featuring links to third-party websites, some of which compete with Complainant’s business. The Panel agrees this use does not amount to a bona fide offering of goods or services, or legitimate noncommercial or fair use as described in Policy ¶¶ (c)(i) & 4(c)(iii), and finds Respondent does not have rights or legitimate interests in the disputed domain name.
Complainant has proved this element.
Complainant claims that Respondent registered the domain with the primary intention of selling the domain. Offers of sale of an infringing domain name can be evidence of bad faith under Policy ¶ 4(b)(i). See Bank of Am. Corp. v. Nw. Free Cmty. Access, FA 180704 (Forum Sept. 30, 2003) (“Respondent's general offer of the disputed domain name registration for sale establishes that the domain name was registered in bad faith under Policy ¶ 4(b)(i).”). Complainant points out the WHOIS site for the disputed domain name shows the domain is for sale. The Panel finds evidence of such an offer to indicate bad faith pursuant to Policy ¶ 4(b)(i).
Complainant also contends that Respondent is a recalcitrant, serial cybersquatter and typosquatter with a history of UDRP findings against it. Multiple previous UDRP findings of bad faith registration and use may be used as evidence of a respondent’s bad faith under Policy ¶ 4(b)(ii). See Fandango, LLC v. 21562719 Ont Ltd, FA1209001464081 (Forum Nov. 2, 2012) (“Respondent’s past conduct and UDRP history establishes a pattern of registered domain names in bad faith under Policy ¶ 4(b)(ii).”). Complainant has provided a listing of prior cases evincing Respondent’s bad faith registration and use of domain names (e.g., Mediacom Communications Corporation v. ORM LTD / ORM Ltd., FA 1640219 (Forum Oct. 31, 2015) (“Respondent has demonstrated a pattern of bad faith registration and use through its involvement in previous UDRP cases.”)). The Panel has looked to Respondent’s history and finds Respondent is engaged in a pattern of bad faith registration and use, described as bad faith in Policy ¶ 4(b)(ii).
Complainant next argues that Respondent’s diversion of traffic to a website containing links to services that compete with Complainant’s is evidence of Policy ¶¶ 4(b)(iii) and (iv) bad faith. Use of a disputed domain name to link Internet users to a complainant’s competitors can be evidence of Policy ¶ 4(b)(iii) bad faith. See Health Republic Insurance Company v. Above.com Legal, FA1506001622088 (Forum July 10, 2015) (“The use of a domain name’s resolving website to host links to competitors of a complainant shows intent to disrupt that complainant’s business, thereby showing bad faith in use and registration under Policy ¶ 4(b)(iii).”). Additionally, attempts to confuse and attract Internet users for commercial gain show Policy ¶ 4(b)(iv) bad faith. See DatingDirect.com Ltd. v. Aston, FA 593977 (Forum Dec. 28, 2005) (“the Panel finds the respondent is appropriating the complainant’s mark in a confusingly similar domain name for commercial gain, which is evidence of bad faith registration and use pursuant to Policy ¶4(b)(iv).”). Respondent’s <golfnpw.com> redirects to a parked page which hosts both generic and competing third-party links. The Panel presumes Respondent profits from click-through fees when a user clicks one of the links and finds Respondent’s registration and use of the disputed domain name shows bad faith pursuant to Policy ¶¶ 4(b)(iii) & 4(b)(iv).
Complainant further argues that Respondent’s behavior amounts to typosquatting and is itself evidence of bad faith. Typosquatting is the practice of using a deliberate misspelling of a complainant’s mark in order to take advantage of common typing errors, and is independent evidence of a respondent’s bad faith under Policy ¶¶ 4(a)(iii). See Homer TLC, Inc. v. Artem Ponomarev, FA1506001623825 (Forum July 20, 2015) (“Finally, under this head of the Policy, it is evident that the <homededpot.com> domain name is an instance of typosquatting, which is the deliberate misspelling of the mark of another in a domain name, done to take advantage of common typing errors made by Internet users in entering into a web browser the name of an enterprise with which they would like to do business online. Typosquatting is independent evidence of bad faith in the registration and use of a domain name.”). Respondent’s <golfnpw.com> differs from Complainant’s GOLFNOW.COM mark only through the replacing of an “o” with a “p,” letters which are adjacent on a standard QWERTY keyboard. The Panel agrees this constitutes typosquatting and finds Respondent registered and is using the disputed domain name in bad faith pursuant to Policy ¶ 4(a)(iii).
Complainant has proved this element.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <golfnpw.com> domain name be TRANSFERRED from Respondent to Complainant .
__________________________________________________________________
Hon. Karl V. Fink (Ret.) Panelist
Dated: January 9, 2017
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