DatingDirect.com Limited v. Wang Future Web Possible Wang (agreement under)
Claim Number: FA0512000612036
Complainant is DatingDirect.com Limited (“Complainant”), represented by Adam Taylor of Adlex Solicitors, 76A Belsize Lane, London NW3 5BJ, United Kingdom. Respondent is Wang Future Web Possible Wang (agreement under) (“Respondent”), 40 Fuxinglu 76-2-1 East, Beijing 100039, China.
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <datingddirect.com>, registered with Communigal Communications Ltd.
The undersigned certifies that she has acted independently and impartially and that to the best of her knowledge she has no known conflict in serving as Panelist in this proceeding. Hon. Carolyn Marks Johnson sits as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically December 20, 2005; the National Arbitration Forum received a hard copy of the Complaint December 20, 2005.
On December 22, 2005, Communigal Communications Ltd confirmed by e-mail to the National Arbitration Forum that the <datingddirect.com> domain name is registered with Communigal Communications Ltd and that Respondent is the current registrant of the name. Communigal Communications Ltd verified that Respondent is bound by the Communigal Communications Ltd registration agreement and thereby has agreed to resolve domain-name disputes brought by third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy").
On December 22, 2005, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of January 11, 2006, 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@datingddirect.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On January 16, 2006, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Hon. Carolyn Marks Johnson as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration Forum 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. The domain name that Respondent registered, <datingddirect.com>, is confusingly similar to Complainant’s DATINGDIRECT.COM mark.
2. Respondent has no rights to or legitimate interests in the <datingddirect.com> domain name.
3. Respondent registered and used the <datingddirect.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, DatingDirect.com Limited, offers an international dating agency service for singles seeking serious friendships and relationships. Complainant has traded under the DATINGDIRECT.COM mark since launching its website at the <datingdirect.com> domain name in 1999. Complainant also holds trademark registration rights in the DATINGDIRECT.COM mark through registration with the trademark authorities in the United Kingdom (Reg. No. 2,232,175, issued May 11, 2000). Complainant has expended a substantial amount of money promoting and marketing its services under the DATINGDIRECT.COM mark, which included offline promotions such as advertising in national magazines and newspapers, national and local radio stations and poster and leaflet campaigns in health clubs.
Respondent registered the <datingddirect.com> domain name August 11, 2005. Respondent is using the disputed domain name to host a website comprising a directory of affiliate links to dating websites similar to those services offered by Complainant.
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 will draw such inferences as the Panel 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 Complainant to 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 established using extrinsic proof in this proceeding that it has rights in the DATINGDIRECT.COM mark through registration with the trademark authority in the United Kingdom. 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; therefore it is sufficient that the complainant can demonstrate a mark in some jurisdiction); see also KCTS Television Inc. v. Get-on-the-Web Ltd., D2001-0154 (WIPO Apr. 20, 2001) (holding that it does not matter for the purpose of paragraph 4(a)(i) of the Policy whether the complainant’s mark is registered in a country other than that of the respondent’s place of business).
Complainant asserts that the <datingddirect.com> domain name is confusingly similar to Complainant’s DATINGDIRECT.COM mark pursuant to Policy ¶ 4(a)(i), because the domain name incorporates Complainant’s mark with the addition of the letter “d.” The Panel finds that the addition of the letter “d” does not negate the confusing similarity between Respondent’s domain name and Complainant’s mark pursuant to Policy ¶ 4(a)(i). See Am. Online, Inc. v. Tencent Commc’ns Corp., FA 93668 (Nat. Arb. Forum Mar. 21, 2000) (finding that <oicq.net> and <oicq.com> are confusingly similar to the complainant’s mark, ICQ); see also Int’l Data Group, Inc. v. Maruyama & Co., Ltd., D2000-0420 (WIPO June 26, 2000) (finding that the domain name <ecomputerworld.com> is confusingly similar to the complainant’s mark, COMPUTERWORLD).
The Panel finds that Complainant satisfied Policy ¶ 4(a)(i).
Complainant established that it has rights in the mark
contained within the disputed domain and asserts that Respondent does not have
such rights or legitimate interests in the <datingddirect.com>
domain name. When a Complainant
establishes a prima facie case pursuant to Policy ¶ 4(a)(ii), the burden
shifts to the respondent to prove that it has rights or legitimate
interests. 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 Parfums Christian Dior v. QTR Corp., D2000-0023 (WIPO Mar. 9, 2000)
(finding that by not submitting a response, the 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 did not offer any evidence and no proof in the record suggests that Respondent is commonly known by the <datingddirect.com> domain name. Thus, the Panel concludes that Respondent did not establish rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(c)(ii). See Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003) (stating “nothing in Respondent’s WHOIS information implies that Respondent is ‘commonly known by’ the disputed domain name” as one factor in determining that Policy ¶ 4(c)(ii) does not apply); see also Compagnie de Saint Gobain v. Com-Union Corp., D2000-0020 (WIPO Mar. 14, 2000) (finding no rights or legitimate interest where the respondent was not commonly known by the mark and never applied for a license or permission from the complainant to use the trademarked name).
Moreover, Respondent is using the disputed domain name to redirect Internet users seeking Complainant’s services to a website comprising a directory of affiliate links to dating websites similar to the services offered by Complainant’s dating business. The Panel finds that Respondent’s use of the disputed domain name for similar commercial purposes is not a use in connection with a bona fide offering of goods or services pursuant to policy ¶ 4(c)(i) and it is not a legitimate noncommercial or fair use of the domain name pursuant to Policy ¶ 4(c)(iii). See Am. Online, Inc. v. Advanced Membership Servs., Inc., FA 180703 (Nat. Arb. Forum Sept. 26, 2003) (“Respondent's registration and use of the <gayaol.com> domain name with the intent to divert Internet users to Respondent's website suggests that Respondent has no rights to or legitimate interests in the disputed domain name pursuant to Policy Paragraph 4(a)(ii).”); see also MSNBC Cable, LLC v. Tysys.com, D2000-1204 (WIPO Dec. 8, 2000) (finding no rights or legitimate interests in the famous MSNBC mark where the respondent attempted to profit using the complainant’s mark by redirecting Internet traffic to its own website)
The Panel finds that Complainant satisfied Policy ¶
4(a)(ii).
Complainant also alleges that Respondent acted in bad faith. The Panel finds that Respondent intentionally registered the disputed domain name incorporating Complainant’s mark to divert Internet users to Respondent’s commercial website. The Panel concludes that such activity is evidence of Respondent’s bad faith registration and use pursuant to Policy ¶ 4(b)(iv). See G.D. Searle & Co. v. Celebrex Drugstore, FA 123933 (Nat. Arb. Forum Nov. 21, 2002) (finding that the respondent registered and used the domain name in bad faith pursuant to Policy ¶ 4(b)(iv) because the respondent was using the confusingly similar domain name to attract Internet users to its commercial website); see also Perot Sys. Corp. v. Perot.net, FA 95312 (Nat. Arb. Forum Aug. 29, 2000) (finding bad faith where the domain name in question is obviously connected with the complainant’s well-known marks, thus creating a likelihood of confusion strictly for commercial gain).
Respondent is using the disputed domain name to provide
links to third parties providing dating services similar to those provided by
Complainant. The Panel finds that, by
creating confusion around Complainant’s mark, Respondent is attempting to
disrupt the business of a competitor.
Respondent’s use of Complainant’s mark to advertise third party dating
services similar to Complainant’s services is evidence of bad faith registration
and use pursuant to Policy ¶ 4(b)(iii).
See 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); see
also Disney Enters., Inc. v. Noel, FA 198805 (Nat. Arb. Forum Nov. 11, 2003) (“Respondent
registered a domain name confusingly similar to Complainant's mark to divert
Internet users to a competitor's website. It is a reasonable inference that
Respondent's purpose of registration and use was to either disrupt or create
confusion for Complainant's business in bad faith pursuant to Policy ¶¶
4(b)(iii) [and] (iv).”).
The Panel finds that Complainant 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 <datingddirect.com> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Carolyn Marks Johnson, Panelist
Dated: January 30, 2006.
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