SimSlots, Inc. v. WhoisGuard c/o WhoisGuard Protected
Claim Number: FA0612000864681
Complainant is SimSlots, Inc. (“Complainant”), represented by John
W. Dozier, of Dozier Internet Law, P.C., 301
Concourse Blvd., West Shore III, Suite 300, Glen Allen, VA 23059. Respondent is WhoisGuard c/o WhoisGuard
Protected (“Respondent”),
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <cimslots.com>, registered with Enom, 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.
Honorable Karl V. Fink (Ret.), as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on December 11, 2006; the National Arbitration Forum received a hard copy of the Complaint on December 12, 2006.
On December 12, 2006, Enom, Inc. confirmed by e-mail to the National Arbitration Forum that the <cimslots.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 December 20, 2006, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of January 9, 2007 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@cimslots.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 12, 2007, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Honorable Karl V. Fink (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 <cimslots.com> domain name is confusingly similar to Complainant’s SIMSLOTS mark.
2. Respondent does not have any rights or legitimate interests in the <cimslots.com> domain name.
3. Respondent registered and used the <cimslots.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, SimSlots, Inc., has been using its SIMSLOTS mark in commerce since 2000 to promote its online slot machine and gambling games. Complainant holds a service mark registration with the United States Patent and Trademark Office (“USPTO”) for its SIMSLOTS mark (Reg. No. 2,836,417 issued April 27, 2004).
Respondent, WhoisGuard, is a service that privatizes domain name registrants’ identities and contact information. The WHOIS information previously listed Mr. Oleg Kor as the registrant of the <cimslots.com> domain name with a registration date of February 19, 2006. The disputed domain name has been used to redirect members to Respondent’s own online slot machine and gambling games website.
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’s registrations of the SIMSLOTS mark with the USPTO predate Respondent’s registration of the <cimslots.com> domain name. Under the Policy, registration of a mark with an appropriate governmental authority confers rights in that mark to a complainant. Thus, the Panel finds that Complainant has established rights in the SIMSLOTS mark pursuant to Policy ¶ 4(a)(i). See Am. Online, Inc. v. Thomas P. Culver Enters., D2001-0564 (WIPO June 18, 2000) (finding that successful trademark registration with the USPTO creates a presumption of rights in a mark); see also Innomed Tech., 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.”).
Respondent’s <cimslots.com> domain name misspells
one letter in Complainant’s SIMSLOTS mark.
The misspelling of one letter does not avoid a finding of confusing
similarity under Policy ¶ 4(a)(i). See
Belkin Components v. Gallant, FA 97075 (Nat. Arb. Forum May 29, 2001)
(finding the <belken.com> domain name confusingly similar to the
complainant's BELKIN mark because the name merely replaced the letter “i” in
the complainant's mark with the letter “e”); see also Am.Online, Inc. v. Avrasya Yayincilik Danismanlik Ltd.,
FA 93679 (Nat. Arb. Forum Mar. 16, 2000) (finding that the respondent’s domain
name, <americanonline.com>, is confusingly similar to the complainant’s
famous
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 <cimslots.com> domain name. Once Complainant makes a prima facie case in support of its allegations, the burden then shifts to Respondent to show it does have rights or legitimate interests pursuant to Policy ¶ 4(a)(ii). Because of Respondent’s failure to respond to the Complaint, the panel assumes 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). However, the Panel will now examine the record to determine if Respondent has rights or legitimate interests under Policy ¶ 4(c).
The Panel finds no evidence in the record showing that Respondent is commonly known by the <cimslots.com> domain name. The WHOIS information previously identified the domain name registrant as Mr. Oleg Kor, and currently identifies the registrant as Respondent, WhoisGuard. Therefore, the Panel concludes that Respondent is not commonly known by the <cimslots.com> domain name pursuant to Policy ¶ 4(c)(ii). See Tercent Inc. v. 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 RMO, Inc. v. Burbridge, FA 96949 (Nat. Arb. Forum May 16, 2001) (interpreting Policy ¶ 4(c)(ii) "to require a showing that one has been commonly known by the domain name prior to registration of the domain name to prevail").
Respondent uses the <cimslots.com> domain name to reroute Internet users to its own online slot machine and gambling games website. Respondent’s products and services directly compete with Complainant, and this is considered neither a bona fide offering of goods and services under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See DLJ Long Term Inv. Corp. v. BargainDomainNames.com, FA 104580 (Nat. Arb. Forum Apr. 9, 2002) (“Respondent is not using the disputed domain name in connection with a bona fide offering of goods and services because Respondent is using the domain name to divert Internet users to <visual.com>, where services that compete with Complainant are advertised.”); see also Ultimate Elecs., Inc. v. Nichols, FA 195683 (Nat. Arb. Forum Oct. 27, 2003) (finding that the respondent's “use of the domain name (and Complainant’s mark) to sell products in competition with Complainant demonstrates neither a bona fide offering of goods or services nor a legitimate noncommercial or fair use of the name”).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Respondent’s <cimslots.com> domain name reroutes Internet users to the website of Complainant’s competitor. This is likely to disrupt Complainant’s business by diverting business away from Complainant. Therefore, the Panel finds that Respondent’s use of the disputed domain name constitutes bad faith registration and use pursuant to Policy ¶ 4(b)(iii). See Puckett, Individually v. Miller, D2000-0297 (WIPO June 12, 2000) (finding that the respondent has diverted business from the complainant to a competitor’s website in violation of Policy ¶ 4(b)(iii)); 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).
Respondent’s <cimslots.com> domain name, which is confusingly similar to Complainant’s SIMSLOTS mark, creates a likelihood of confusion among consumers searching for Complainant’s services. Specifically, consumers could be confused as to the source, sponsorship, or endorsement of the online slot machines and games promoted on Respondent’s website. Thus, the Panel finds that Respondent’s use of the disputed domain name constitutes bad faith registration and use pursuant to Policy ¶ 4(b)(iv). See Am. Univ. v. Cook, FA 208629 (Nat. Arb. Forum Dec. 22, 2003) (“Registration and use of a domain name that incorporates another's mark with the intent to deceive Internet users in regard to the source or affiliation of the domain name is evidence of bad faith.”); see also Identigene, Inc. v. Genetest Labs., D2000-1100 (WIPO Nov. 30, 2000) (finding bad faith where the respondent's use of the domain name at issue to resolve to a website where similar services are offered to Internet users is likely to confuse the user into believing that the complainant is the source of or is sponsoring the services offered at the site).
Respondent’s <cimslots.com> domain name is confusingly similar to Complainant’s SIMSLOTS mark because of the misspelling of the first letter. Complainant has alleged that this constitutes typosquatting, which should be recognized as bad faith use. In Dermalogica, Inc. v. Domains to Develop, FA 175201 (Nat. Arb. Forum Sept. 22, 2003), the Panel held that the <dermatalogica.com> domain name was a “simple misspelling” of the complainant’s DERMALOGICA mark which indicated typosquatting and bad faith pursuant to Policy ¶ 4(a)(iii). Similarly, in Zone Labs, Inc. v. Zuccarini, FA 190613 (Nat. Arb. Forum Oct. 15, 2003), the Panel held that the respondent’s <zonelarm.com> domain name took advantage of a typographical error and was thus typosquatting, which “itself is evidence of bad faith registration and use pursuant to Policy ¶ 4(a)(iii).” Like the domain names in Dermalogica and Zone Labs, Respondent’s <cimslots.com> domain name can be characterized as typosquatting because Respondent is trying to benefit from a potential typographical error made by Internet users. Therefore, the Panel finds that Respondent registered and used the disputed domain name in bad faith pursuant to Policy ¶ 4(a)(iii).
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 <cimslots.com> domain name be TRANSFERRED from Respondent to Complainant.
Honorable Karl V. Fink (Ret.), Panelist
Dated: January 26, 2007
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