LowerMyBills, Inc. v.
Theofficiallowermybills
Claim Number: FA0509000560603
Complainant is LowerMyBills, Inc. (“Complainant”), represented
by Sean F. Heneghan, 31 Reading Hill Avenue, Melrose, MA
02176. Respondent is Theofficiallowermybills (“Respondent”),
4900 Ridgemoor Circle, Palm Harbor, FL 34685.
REGISTRAR
AND DISPUTED DOMAIN NAME
The
domain name at issue is <theoriginallowermybills.com>, registered
with Go Daddy Software, 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.
Honorable
Paul A. Dorf (Ret.) as Panelist.
Complainant
submitted a Complaint to the National Arbitration Forum electronically on September
13, 2005; the National Arbitration Forum received a hard copy of the Complaint
on September 16, 2005.
On
September 14, 2005, Go Daddy Software, Inc. confirmed by e-mail to the National
Arbitration Forum that the <theoriginallowermybills.com> domain
name is registered with Go Daddy Software, Inc. and that Respondent is the
current registrant of the name. Go Daddy Software, Inc. has verified that
Respondent is bound by the Go Daddy Software, 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
September 19, 2005, a Notification of Complaint and Commencement of
Administrative Proceeding (the "Commencement Notification"), setting
a deadline of October 10, 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@theoriginallowermybills.com by e-mail.
Having
received no response from Respondent, the National Arbitration Forum
transmitted to the parties a Notification of Respondent Default.
On October 14,
2005, pursuant to Complainant's request to have the dispute decided by a
single-member Panel, the National Arbitration Forum appointed Honorable Paul A.
Dorf (Ret.) 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 name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <theoriginallowermybills.com>
domain name is confusingly similar to Complainant’s LOWERMYBILLS.COM mark.
2. Respondent does not have any rights or
legitimate interests in the <theoriginallowermybills.com> domain
name.
3. Respondent registered and used the <theoriginallowermybills.com>
domain name in bad faith.
B. Respondent failed to submit a Response in
this proceeding.
Complainant,
LowerMyBills, Inc., provides comparison-shopping and consumer-related
information through its website, including home refinance, and
debt-consolidation lending services. In
connection with these services, Complainant has registered the LOWERMYBILLS.COM
mark (Reg. No. 2,519,342 issued December 18, 2001) with the United States
Patent and Trademark Office (“USPTO”).
Respondent
registered the <theoriginallowermybills.com> domain name on August
4, 2005. Respondent’s domain name
resolves to a website that offers competing financial services.
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. 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.”).
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 LOWERMYBILLS.COM mark through registration with the
USPTO. See 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
[or] have acquired secondary meaning”); see also Vivendi Universal Games v.
XBNetVentures Inc., FA 198803 (Nat. Arb. Forum Nov. 11, 2003) (“Complainant's
federal trademark registrations establish Complainant's rights in the BLIZZARD
mark.”).
Complainant
contends that Respondent’s <theoriginallowermybills.com> domain
name is confusingly similar to Complainant’s LOWERMYBILLS.COM mark. Respondent’s disputed domain name features
Complainant’s entire mark and adds the generic terms “the” and “original.” The Panel finds that the addition of such
generic terms fails to distinguish Respondent’s domain name from Complainant’s
registered mark pursuant to Policy ¶ 4(a)(i).
See Arthur Guinness Son & Co. (Dublin) Ltd. v. Healy/BOSTH,
D2001-0026 (WIPO Mar. 23, 2001) (finding confusing similarity where the domain
name in dispute contains the identical mark of the complainant combined with a
generic word or term); see also Sony Kabushiki Kaisha v. Inja, Kil,
D2000-1409 (WIPO Dec. 9, 2000) (finding that “[n]either the addition of an
ordinary descriptive word . . . nor the suffix ‘.com’
detract from the overall impression of the dominant part of the name in each
case, namely the trademark SONY” and thus Policy ¶ 4(a)(i) is satisfied).
The Panel finds
that Policy ¶ 4(a)(i) has been satisfied.
Complainant has
alleged that Respondent does not have rights or legitimate interests in the <theoriginallowermybills.com>
domain name. Once Complainant makes a prima
facie case in support of its allegations, the burden shifts to Respondent
to prove that it does have rights or legitimate interests pursuant to Policy ¶
4(a)(ii). Due to Respondent’s failure
to respond to the Complaint, the Panel infers that Respondent does not have
rights or legitimate interests in the disputed domain name. See
G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum Oct. 1, 2002)
(holding that, where the complainant has asserted that respondent does not have
rights or legitimate interests with respect to the domain name, it is incumbent
on respondent to come forward with concrete evidence rebutting this assertion
because this information is “uniquely within the knowledge and control of the
respondent”); see also Clerical Med. Inv.
Group Ltd. v. Clericalmedical.com, D2000-1228 (WIPO Nov. 28, 2000) (finding
that, under certain circumstances, the mere assertion by the complainant that
the respondent does not have rights or legitimate interests is sufficient to
shift the burden of proof to the respondent to demonstrate that such a right or
legitimate interest does exist).
Respondent is
using the confusingly similar <theoriginallowermybills.com> domain
name to operate a website that provides financial services and information that
compete directly with Complainant’s business.
The Panel finds that such use is neither a bona fide offering of
goods or services pursuant to Policy ¶ 4(c)(i) nor a legitimate noncommercial or
fair use pursuant to Policy ¶ 4(c)(iii).
See Ameritrade Holdings Corp. v. Polanski, FA 102715 (Nat. Arb.
Forum Jan. 11, 2002) (finding that the respondent’s use of the disputed domain
name to redirect Internet users to a financial services website, which competed
with the complainant, was not a bona fide offering of goods or
services); see also Glaxo Group Ltd. v. WWW Zban, FA 203164 (Nat. Arb. Forum Dec. 1, 2003) (finding that
the respondent was not using the domain name within the parameters of Policy ¶¶
4(c)(i) or (iii) because the respondent used the domain name to take advantage
of the complainant's mark by diverting Internet users to a competing commercial
site).
Furthermore,
no affirmative evidence has been set forth showing that Respondent is commonly
known by the <theoriginallowermybills.com> domain name. Under Policy ¶ 4(c)(ii), the Panel finds that Respondent has
failed to show that it is commonly known by the disputed domain name. See Gallup, Inc. v. Amish Country Store, FA 96209 (Nat. Arb. Forum Jan.
23, 2001) (finding that the respondent does not have rights in a domain name
when the respondent is not known by the mark); see also Ian Schrager Hotels, L.L.C. v. Taylor, FA 173369 (Nat. Arb. Forum Sept. 25, 2003) (finding that
without demonstrable evidence to support the assertion that a respondent is
commonly known by a domain name, the assertion must be rejected).
The
Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Respondent is
using the <theoriginallowermybills.com> domain name to operate a
website that provides services that compete with Complainant’s business. The Panel finds that such use constitutes
disruption of Complainant’s business and is evidence of bad faith registration
and use pursuant to Policy ¶ 4(b)(iii).
See Lubbock Radio Paging v.
Venture Tele-Messaging, FA 96102 (Nat. Arb. Forum Dec. 23, 2000)
(concluding that domain names were registered and used in bad faith where the
respondent and the complainant were in the same line of business in the same
market area); see also S. Exposure v. S. Exposure, Inc., FA 94864 (Nat. Arb.
Forum July 18, 2000) (finding the respondent acted in bad faith by attracting
Internet users to a website that competes with the complainant’s business).
Furthermore,
Respondent’s competing use of the <theoriginallowermybills.com>
domain name will likely result in confusion among Internet users as to Complainant’s sponsorship of or affiliation
with the resulting website. The Panel
finds that such use constitutes bad faith registration and use pursuant to
Policy ¶ 4(b)(iv). See Am. Online, Inc. v. Fu, D2000-1374 (WIPO
Dec. 11, 2000) (finding that the respondent violated Policy ¶ 4(b)(iv) by
displaying the complainant’s mark on its website and offering identical services
as those offered by the complainant); see also Scholastic Inc. v. Applied Software Solutions, Inc., D2000-1629
(WIPO Mar. 15, 2001) (finding bad faith under Policy ¶ 4(b)(iv) because the
respondent initially used the disputed domain name to sell educational services
that targeted the complainant’s market).
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 <theoriginallowermybills.com> domain name be TRANSFERRED
from Respondent to Complainant.
Honorable Paul A. Dorf (Ret.), Panelist
Dated:
October 28, 2005
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