Peter Jerie v. LaPorte Holdings, Inc.
Claim
Number: FA0412000381130
Complainant is Peter Jerie (“Complainant”), represented
by Seán F. Heneghan, 31 Reading Hill Avenue, Melrose, MA
02176. Respondent is LaPorte Holdings, Inc. (“Respondent”),
2202 S. Figueroa St., Suite 721, Los Angeles, CA 90023.
REGISTRAR
AND DISPUTED DOMAIN NAME
The
domain names at issue are <livesore.com>, <livesccore.com>,
<liveescore.com>, <livescoe.com> and <livsecore.com>,
registered with Nameking.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
Franklin as Panelist.
Complainant
submitted a Complaint to the National Arbitration Forum electronically on December
13, 2004; the National Arbitration Forum received a hard copy of the Complaint
on December 20, 2004.
On
December 29, 2004, Nameking.com, Inc. confirmed by e-mail to the National
Arbitration Forum that the <livesore.com> domain name is
registered with Nameking.com, Inc. and that Respondent is the current
registrant of the name. On January 11,
2005, Nameking.com, Inc. confirmed by e-mail to the National Arbitration Forum
that the domain names <livesccore.com>, <liveescore.com>,
<livescoe.com> and <livsecore.com> are registered
with Nameking.com, Inc. and that Respondent is the current registrant of the
names. Nameking.com, Inc. has verified that Respondent is bound by the Nameking.com,
Inc. registration agreement and has thereby agreed to resolve domain-name
disputes brought by third parties in accordance with ICANN's Uniform Domain
Name Dispute Resolution Policy (the "Policy").
On
January 14, 2005, a Notification of Complaint and Commencement of
Administrative Proceeding (the "Commencement Notification"), setting
a deadline of February 3, 2005 by which Respondent could file a Response to the
Complaint, was transmitted to Respondent via e-mail, post and fax, to all
entities and persons listed on Respondent's registration as technical,
administrative and billing contacts, and to postmaster@livesore.com,
postmaster@livesccore.com, postmaster@liveescore.com, postmaster@livescoe.com
and postmaster@livsecore.com by e-mail.
Having
received no Response from Respondent, using the same contact details and
methods as were used for the Commencement Notification, the National
Arbitration Forum transmitted to the parties a Notification of Respondent
Default.
On
February 10, 2005, pursuant to Complainant's request to have the dispute
decided by a single-member Panel, the National Arbitration Forum appointed
Sandra 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." 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 names be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <livesore.com>,
<livesccore.com>, <liveescore.com>, <livescoe.com>
and <livsecore.com> domain names are confusingly similar to
Complainant’s LIVESCORE mark.
2. Respondent does not have any rights or
legitimate interests in the <livesore.com>, <livesccore.com>,
<liveescore.com>, <livescoe.com> and <livsecore.com>
domain names.
3. Respondent registered and used the <livesore.com>,
<livesccore.com>, <liveescore.com>, <livescoe.com>
and <livsecore.com> domain names in bad faith.
B. Respondent failed to submit a Response in
this proceeding.
Complainant,
Peter Jerie, owns and operates a soccer score website at the
<livescore.com> domain name.
Complainant’s website offers real-time scores for soccer matches
worldwide, and averages over 3 million “hits” a month.
Complainant has
registered the LIVESCORE mark with the United States Patent and Trademark
Office (“USPTO”) (Reg. No. 2,514,933 issued December 4, 2001).
Respondent
registered the <livesore.com> domain name on October 14, 2002, the
<livesccore.com> domain name on October 12, 2003, the
<liveescore.com> domain name on October 19, 2004, the <livescoe.com>
domain name on November 18, 2003 and the <livsecore.com> domain
name on November 12, 2004. Respondent’s
domain names resolve to generic search engine websites that feature links to a
variety of websites as well as numerous pop-up advertisements.
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."
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.
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.
Complainant has
established rights in the LIVESCORE mark through registration with the
USPTO. See Janus Int’l Holding
Co. v. Rademacher, D2002-0201 (WIPO Mar. 5, 2002) (finding that Panel
decisions have held that registration of a mark is prima facie evidence of validity, which creates a rebuttable
presumption that the mark is inherently distinctive. Respondent has the burden of refuting this assumption); see also Men’s Wearhouse, Inc. v. Wick,
FA 117861 (Nat. Arb. Forum Sept. 16, 2002) (“Under U.S. trademark law,
registered marks hold a presumption that they are inherently distinctive and
have acquired secondary meaning.”).
Respondent’s
domain names are confusingly similar to Complainant’s LIVESCORE mark. Each domain name differs from Complainant’s
mark minimally, either with the omission or addition of a single letter, such
as the <livesore.com> and <livesccore.come> domain
names, or the transposition of two letters, such as the <livsecore.com>
domain name. Such misspellings
replicate common typographical errors Internet users may make in attempting to
enter Complainant’s LIVESCORE mark into their web browser. Such minor misspellings are insufficient to
negate the confusing similarity between Respondent’s domain names and
Complainant’s mark pursuant to Policy ¶ 4(a)(i). See Marriott Int'l, Inc. v. Seocho, FA 149187 (Nat. Arb. Forum
Apr. 28, 2003) finding that Respondent's
<marrriott.com> domain name was confusingly similar to Complainant's
MARRIOTT mark because "Respondent's typosquatting, by its
definition, renders the domain name confusingly similar to Complainant's
mark"; see also Neiman
Marcus Group, Inc. v. Party Night, Inc., FA 114546 (Nat. Arb. Forum July 23, 2002) finding the
disputed domain name was a simple misspelling of Complainant’s mark and was a
classic example of typosquatting, which “renders the domain name
confusingly similar to the altered famous mark”.
Furthermore,
the addition of the generic top-level domain “.com” is not enough to overcome a
finding of confusing similarity under Policy ¶ 4(a)(i). See
Rollerblade, Inc. v. McCrady, D2000-0429 (WIPO June 25, 2000) finding
that the top level of the domain name such as “.net” or “.com” does not affect
the domain name for the purpose of determining whether it is identical or
confusingly similar; see also
Isleworth Land Co. v. Lost in Space, SA, FA 117330 (Nat. Arb. Forum
Sept. 27, 2002) finding it is a “well established principle that generic top-level domains
are irrelevant when conducting a Policy ¶ 4(a)(i) analysis”.
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Respondent has
failed to respond to the Complaint.
Thus, the Panel may accept all reasonable allegations and assertions set
forth in the Complaint as true and accurate.
See 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.”); see also
Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095
(Nat. Arb. Forum July 31, 2000) holding that Respondent’s failure to respond
allows all reasonable inferences of fact in the allegations of the Complaint to
be deemed true.
Complainant has
asserted that Respondent has no rights and legitimate interests in the disputed
domain names, and Respondent, in not submitting a response, has failed to rebut
this assertion. Thus, the Panel may
interpret Respondent’s failure to respond as evidence that Respondent lacks
rights and legitimate interests in the disputed domain names pursuant to Policy
¶ 4(a)(ii). See Parfums
Christian Dior v. QTR Corp., D2000-0023 (WIPO Mar. 9, 2000) finding that by
not submitting a Response, Respondent has failed to invoke any circumstance
which could demonstrate any rights or legitimate interests in the domain name; see also Bank of Am. Corp. v. McCall, FA 135012 (Nat. Arb. Forum Dec.
31, 2002) (“Respondent's failure to respond not only results in its failure to
meet its burden, but also will be viewed as evidence itself that Respondent
lacks rights and legitimate interests in the disputed domain name.”).
Respondent is
using the disputed domain names to operate a generic search engine website that
features links to a variety of websites and numerous pop-up
advertisements. Such use is not a use
in connection with 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). See Wells Fargo & Co. v. Shing, FA
205699 (Nat. Arb. Forum Dec. 8, 2003) finding that using a domain
name to direct Internet traffic to a website featuring pop-up advertisements
and links to various third-party websites is neither a bona fide
offering of goods or services under Policy ¶ 4(c)(i) nor a legitimate
noncommercial or fair use under Policy ¶ 4(c)(iii) because the registrant
presumably receives compensation for each misdirected Internet user; see also De La Rue
Holdings PLC v. Video Images Prods. L.L.C., FA
196054 (Nat. Arb. Forum Oct. 27, 2003) finding that Respondent was
not using the domain name <delaru.com> for a bona fide offering of goods
or services under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use
under Policy ¶ 4(c)(iii) because Respondent was using the domain name to
subject unsuspecting users to a barrage of unsolicited pop-up advertisements,
presumably for commercial benefit.
Furthermore,
nothing in the record indicates that Respondent is either commonly known by the
disputed domain names or is authorized to register domain names that feature
Complainant’s LIVESCORE mark. Thus, the
Panel finds that Respondent lacks rights and legitimate interests in the domain
names pursuant to Policy ¶ 4(c)(ii). See Ian
Schrager Hotels, L.L.C. v. Taylor, FA
173369 (Nat. Arb. Forum Sept. 25, 2003) finding
that without demonstrable evidence to support the notion that a respondent is
commonly known by a domain name, the notion must be rejected; see also Compagnie
de Saint Gobain v. Com-Union Corp.,
D2000-0020 (WIPO Mar. 14, 2000) finding no rights or legitimate interests where
Respondent was not commonly known by the mark and never applied for a license
or permission from Complainant to use the trademarked name.
Moreover, the
fact that Respondent’s domain names are merely typosquatted variations of
Complainant’s LIVESCORE mark is evidence that Respondent lacks rights and
legitimate interests in the domain names pursuant to Policy ¶ 4(a)(ii). See
IndyMac Bank F.S.B. v. Ebeyer, FA 175292 (Nat. Arb. Forum
Sept. 19, 2003) finding that Respondent lacked rights and legitimate interests
in the disputed domain names because it "engaged in the practice of typosquatting by taking
advantage of Internet users who attempt to access Complainant's
<indymac.com> website but mistakenly misspell Complainant's mark by
typing the letter 'x' instead of the letter 'c.'"; see also LTD Commodities LLC v. Party Night, Inc., FA 165155 (Nat. Arb. Forum Aug. 14,
2003) finding that the <ltdcommadities.com>,
<ltdcommmodities.com> and <ltdcommodaties.com> disputed domain
names were typosquatted versions of Complainant's LTD COMMODITIES mark and
"Respondent's 'typosquatting' is evidence that Respondent lacks rights or
legitimate interests in the disputed domain names."
The
Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Respondent has
attempted to attract Internet users to its commercial websites at the disputed
domain names by creating a likelihood of confusion between Complainant’s
LIVESCORE mark and the domain names.
The Panel infers that Respondent receives click-through fees for
diverting Internet users to the various websites featured as links on its
websites. The Panel additionally infers
that Respondent receives advertising revenue from the prominent use of pop-up
advertisements on its websites. Thus,
the Panel finds that Respondent’s opportunistic use of the domain names
constitutes bad faith registration and use pursuant to Policy ¶ 4(b)(iv). See
Kmart v. Khan, FA 127708 (Nat. Arb. Forum Nov. 22, 2002) finding
that if Respondent profits from its diversionary use of Complainant's mark when
the domain name resolves to commercial websites and Respondent fails to contest
the Complaint, it may be concluded that Respondent is using the domain name in
bad faith pursuant to Policy ¶ 4(b)(iv); see
also eBay, Inc v.
Progressive Life Awareness Network, D2000-0068 (WIPO Mar. 16, 2001) finding
bad faith where Respondent is taking advantage of the recognition that eBay has
created for its mark and therefore profiting by diverting users seeking the
eBay website to Respondent’s site.
Furthermore,
Respondent registered the domain names with either actual or constructive
knowledge of Complainant’s rights in the LIVESCORE mark due to Complainant’s
registration of the mark with the USPTO.
Registration of domain names confusingly similar to a mark, despite
knowledge of another’s rights in the mark, is evidence of bad faith
registration pursuant to Policy ¶ 4(a)(iii).
See Digi Int’l v. DDI Sys.,
FA 124506 (Nat. Arb. Forum Oct. 24, 2002) (“[T]here is a legal presumption of
bad faith, when Respondent reasonably should have been aware of Complainant’s
trademarks, actually or constructively.”); see also Orange Glo Int’l v. Blume, FA 118313 (Nat. Arb.
Forum Oct. 4, 2002) (“Complainant’s OXICLEAN mark is listed on the Principal
Register of the USPTO, a status that confers constructive notice on those
seeking to register or use the mark or any confusingly similar variation
thereof.”).
Moreover, the
fact that Respondent’s domain names are merely typosquatted variations of
Complainant’s LIVESCORE mark is evidence that Respondent registered and used
the domain names in bad faith pursuant to Policy ¶ 4(a)(iii). See
Zone Labs, Inc. v. Zuccarini, FA 190613 (Nat. Arb. Forum
Oct. 15, 2003) finding that Respondent registered and used the
<zonelarm.com> domain name in bad faith pursuant to Policy
¶ 4(a)(iii) because the name was merely a typosquatted version of
Complainant's ZONEALARM mark. "Typosquatting, itself
is evidence of bad faith registration and use pursuant to Policy ¶
4(a)(iii)."; see also K.R. USA, Inc. v. So So Domains, FA 180624 (Nat. Arb. Forum Sept. 18, 2003) finding that the <philadelphiaenquirer.com>
and <tallahassedemocrat.com> domain names were typosquatted versions of
Complainant's THE PHILADELPHIA INQUIRER and TALLAHASSEE DEMOCRAT marks.
"Furthermore, [pursuant to Policy ¶ 4(a)(iii)] the very practice of
typosquatting, in which Respondent has engaged, has been deemed behavior in bad
faith."
The
Panel finds that Policy ¶ 4(a)(iii) has been satisfied.
Having
established all three elements required under the ICANN Policy, the Panel
concludes that relief shall be GRANTED.
Accordingly, it
is Ordered that the <livesore.com>, <livesccore.com>,
<liveescore.com>, <livescoe.com> and <livsecore.com>
domain names be TRANSFERRED from Respondent to Complainant.
Sandra Franklin, Panelist
Dated:
February 24, 2005
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