Intelius, Inc. v Gene Vozzola
Claim Number: FA0606000740345
Complainant is Intelius, Inc. (“Complainant”), represented by Stephanie J. Simmons, of Lane Powell PC, 1420 Fifth Avenue, Suite 4100, Seattle, WA 98101. Respondent is Gene Vozzola (“Respondent”), 2100-A North Federal Highway, Hollywood, CA 33020.
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <inteliius.com>, registered with Enom, 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.
Terry F. Peppard as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on June 27, 2006; the National Arbitration Forum received a hard copy of the Complaint on June 29, 2006.
On June 28, 2006, Enom, Inc. confirmed by e-mail to the National Arbitration Forum that the <inteliius.com> domain name is registered with Enom, Inc. and that Respondent is the current registrant of the name. Enom, Inc. has verified that Respondent is bound by the Enom, 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 June 30, 2006, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of July 20, 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@inteliius.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On July 26, 2006, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Terry F. Peppard as sole Panelist in this proceeding.
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:
Complainant provides computer search engine services, particularly for the search and retrieval of information relating to people, properties, businesses, events, identity verification and homeland security.
In connection with offering its search engine goods and services, Complainant has registered the INTELIUS service mark with the United States Patent and Trademark Office (“USPTO’) (Reg. No. 3,096,294 issued May 23, 2006).
Complainant also uses the INTELIUS mark in its registered <intelius.com> domain name, which resolves to Complainant’s website, offering its Internet search engine services to Internet users.
Respondent is in no way sponsored by or affiliated with Complainant, and Complainant has not given Respondent permission to use Complainant’s mark in a domain name.
Respondent registered the <inteliius.com> domain name on March 29, 2006.
Respondent is using the disputed domain name to redirect Internet users to Respondent’s website which features links to third-party websites offering Internet search engine services in direct competition with those of Complainant.
Respondent’s <inteliius.com> domain name is confusingly similar to Complainant’s INTELIUS mark.
Respondent does not have any rights or legitimate interests in the <inteliius.com> domain name.
Respondent registered and uses the <inteliius.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
(1) the domain name registered by Respondent is confusingly similar to a 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.
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 a 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:
i. the domain name registered by Respondent is identical or confusingly similar to a
trademark or service mark in which Complainant has rights; and
ii. Respondent has no rights or legitimate interests in respect of the domain name; and
iii. the domain name has been registered and is being used in bad faith.
Complainant has established rights in the INTELIUS service mark through registration of the mark with the USPTO. Such registration is sufficient to establish the rights required under Policy ¶ 4(a)(i). See Innomed Techs., Inc. v. DRP Servs., FA 221171 (Nat. Arb. Forum Feb. 18, 2004): “Registration of the NASAL-AIRE mark with the USPTO establishes Complainant's rights in the mark.” 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 [or] have acquired secondary meaning.”
Respondent’s <inteliius.com> domain name is
confusingly similar to Complainant’s INTELIUS mark. The disputed domain name is a common misspelling of Complainant’s
mark created by adding an extra letter “i.”
Internet users seeking Complainant on the Internet could easily find
themselves redirected to Respondent’s website through a simple typo. The addition of a single letter, resulting
in a common misspelling of Complainant’s mark, does not overcome the confusing
similarity between the disputed domain name and Complainant’s mark pursuant to
Policy ¶ 4(a)(i). See Dow Jones & Co., Inc. v.
Powerclick, Inc., D2000-1259 (WIPO Dec. 1, 2000) (holding that
deliberate introduction of errors or changes, such as the addition of a fourth
“w” or the omission of periods or other such “generic” typos do not change a
respondent’s infringement on a core trademark held by the complainant); see also Belkin Components v. Gallant,
FA 97075 (Nat. Arb. Forum May 29, 2001) (finding the <belken.com> domain
name confusingly similar to a complainant's BELKIN mark because the name merely
replaced the letter “i” in that complainant's mark with the letter “e”).
The Panel therefore finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant’s assertion that Respondent lacks rights or legitimate interests in the disputed domain name is sufficient to create a prima facie case. With the establishment of a prima facie case, the burden shifts to Respondent to demonstrate that it has rights or legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii). The Panel may take into account Respondent’s failure to submit a Response as evidence that Respondent lacks such rights or legitimate interests. See Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (holding that, where a complainant has asserted that a respondent has no rights or legitimate interests with respect to a domain name, it is incumbent on that 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 Am. Express Co. v. Fang Suhendro, FA 129120 (Nat. Arb. Forum Dec. 30, 2002): “[B]ased on Respondent's failure to respond, it is presumed that Respondent lacks all rights and legitimate interests in the disputed domain name.” The Panel will nonetheless evaluate the available evidence to determine whether it can be shown that Respondent has rights or legitimate interests pursuant to Policy ¶ 4(c).
We begin by noting that it is undisputed that Respondent is using the <inteliius.com> domain name to redirect Internet users to Respondent’s website featuring links to third-party websites offering Internet search engine services in direct competition with those of Complainant. Presumably, Respondent receives pay-per-click fees from these links. Such use is not a bona fide offering of goods or services as allowed under Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use as allowed under Policy ¶ 4(c)(iii). See 24 Hour Fitness USA, Inc. v. 24HourNames.com-Quality Domains For Sale, FA 187429 (Nat. Arb. Forum Sep. 26, 2003) (holding that a respondent’s use of the domain names <24hrsfitness.com>, <24-hourfitness.com> and <24hoursfitness.com> to redirect Internet users to a website featuring advertisements and links to a complainant’s competitors could not be considered a bona fide offering of goods or services or a legitimate noncommercial or fair use); see also Computer Doctor Franchise Sys., Inc. v. Computer Doctor, FA 95396 (Nat. Arb. Forum Sept. 8, 2000) (finding that a respondent’s website, which is blank but for links to other websites, is not a legitimate use of the domain names).
Further, there is no evidence in the record of this
proceeding demonstrating that Respondent is commonly known by the <inteliius.com>
domain name. Respondent’s WHOIS
information identifies Respondent as “Gene Vozzola,” which is in no way similar
to the disputed domain name.
Additionally, Complainant asserts, and Respondent does not deny, that
Respondent is in no way sponsored by or affiliated with Complainant, and that
Complainant has not given Respondent permission to use Complainant’s mark in a
domain name. The Panel concludes that
Respondent is not commonly known by the disputed domain name, and thus lacks
rights or legitimate interests pursuant to Policy ¶ 4(c)(ii). See
Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003)
(stating that “nothing in Respondent’s WHOIS information implies that
Respondent is ‘commonly known by’ the disputed domain name” is a factor in
determining that Policy ¶ 4(c)(ii) does not apply); see also Medline, Inc. v. Domain Active Pty. Ltd., FA
139718 (Nat. Arb. Forum Feb. 6, 2003): “Considering the nonsensical nature of
the domain name [<wwwmedline.com>] and its similarity to Complainant’s
registered and distinctive [MEDLINE] mark, the Panel concludes that Policy ¶
4(c)(ii) does not apply to Respondent.”); see also Compagnie
de Saint Gobain v. Com-Union Corp., D2000-0020 (WIPO Mar. 14, 2000)
(finding no rights or legitimate interest where a respondent was not commonly
known by the mark there in dispute and never applied for a license or
permission from a complainant to use the trademarked name).
The Panel thus finds that Policy ¶ 4(a)(ii) has been satisfied.
It is uncontested on the record before us that Respondent is
using the <inteliius.com> domain name, which is confusingly similar
to Complainant’s INTELIUS mark, to redirect Internet users to Respondent’s
website. That website is comprised of
numerous links to third-party sites offering Internet search engine services in
direct competition with those of Complainant.
We presume, in the absence of evidence to the contrary, that Respondent
receives pay-per-click fees from these links.
The Panel therefore concludes that Respondent’s use of a confusingly
similar domain name to redirect Internet users to Respondent’s website, serving
as a clearinghouse for links to third-party websites in competition with
Complainant’s business, is evidence of bad faith registration and use pursuant
to Policy ¶ 4(b)(iii). See 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).
See also Puckett, Individually v. Miller,
D2000-0297 (WIPO June 12, 2000) (finding, on similar facts, that a respondent
has diverted business from a complainant to a competitor’s website within the
meaning of Policy ¶ 4(b)(iii)).
In addition, it is undisputed that
Respondent’s <inteliius.com> domain name is confusingly similar to
Complainant’s INTELIUS mark. Internet
users seeking Complainant’s website could easily find themselves redirected to
Respondent’s website through a simple misspelling or typo of Complainant’s
INTELIUS mark. Because of the confusing
similarity between the challenged domain name and Respondent’s mark, Internet
users arriving at Respondent’s website may mistakenly believe that Respondent’s
website is sponsored by or affiliated with Complainant. However, instead of finding Complainant’s
genuine search engine services, Internet users are confronted with the numerous
third-party links displayed on Respondent’s website, from which Respondent
presumably receives referral fees. The Panel concludes that Respondent’s use of
a confusingly similar domain name to attract Internet users to its website,
presumably for financial gain, is evidence of bad faith use and registration
pursuant to Policy ¶ 4(b)(iv). 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.’” See also AltaVista Co. v. Krotov, D2000-1091 (WIPO Oct. 25, 2000) (finding
bad faith under Policy ¶ 4(b)(iv) where a respondent’s domain name resolved to
a website that offered links to third-party websites that offered services
similar to a complainant’s services by taking advantage of Internet users’
mistakes).
For these reasons, the Panel finds that Policy ¶ 4(a)(iii) has been satisfied.
Complainant having established all three elements required to be proven under the ICANN Policy, the Panel concludes that the relief requested must be GRANTED.
Accordingly, it is Ordered that the <inteliius.com> domain name be TRANSFERRED forthwith from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: August 7, 2006
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