DatingDirect.com Limited v. qqnetwork.com c/o esther tang
Claim Number: FA0702000928602
Complainant is DatingDirect.com
Limited (“Complainant”), represented by Adam Taylor, of Adlex Solicitors, 76A
The domain name at issue is <datingservicedirect.com>, registered with Direct Information Pvt Ltd d/b/a Publicdomainregistry.
The undersigned certifies that she has acted independently and impartially and to the best of her knowledge has no known conflict in serving as Panelist in this proceeding.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On
On March 1, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of March 21, 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@datingservicedirect.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On
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 <datingservicedirect.com> domain name is confusingly similar to Complainant’s DATING DIRECT mark.
2. Respondent does not have any rights or legitimate interests in the <datingservicedirect.com> domain name.
3. Respondent registered and used the <datingservicedirect.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, DatingDirect.com Limited, has used the DATING
DIRECT mark since 1999 in connection with its international online dating
agency. Complainant has engaged in
marketing its mark in print advertising and on the radio. Complainant also provided examples of press
coverage of its business and membership numbers for its dating services. Complainant also holds a United Kingdom
Patent Office (“UKPO”) registration for the DATING DIRECT mark (Reg. No.
2,319,425 registered
Respondent registered the <datingservicedirect.com>
domain name on
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.
Under the Policy, registration of a mark is not necessary to establish rights in that mark. The panel in SeekAmerica Networks Inc. v. Masood, D2000-0131 (WIPO Apr. 13, 2000) found that the Rules do not require that the complainant's trademark or service mark be registered by a government authority or agency for such rights to exist. In this case, Complainant established common law rights in the DATING DIRECT mark well before its June 16, 2006 UKPO registration of the mark. Complainant demonstrated extensive and continuous use of the mark from 1999 through the present and provided the Panel with significant evidence of public goodwill in the mark in the form of press coverage and membership numbers. In S.A. Bendheim Co., Inc. v. Hollander Glass, FA 142318 (Nat. Arb. Forum Mar. 13, 2003), the panel held that the complainant established rights in the descriptive RESTORATION GLASS mark through proof of secondary meaning associated with the mark. Further, Complainant’s UKPO registration is additional evidence of Complainant’s rights in the DATING DIRECT mark, as the panel in Janus Int’l Holding Co. v. Rademacher, D2002-0201 (WIPO Mar. 5, 2002) stated, "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." Thus, the Panel finds that Complainant has established rights in the DATING DIRECT mark pursuant to Policy ¶ 4(a)(i).
Respondent’s <datingservicedirect.com> domain name is confusingly similar to Complainant’s DATING DIRECT mark. Respondent’s domain name includes Complainant’s DATING DIRECT mark in its entirety. The only difference between the disputed domain name and Complainant’s mark is the insertion of the term “service” between the two terms of Complainant’s mark. The term “service” is descriptive of Complainant’s business, as Complainant’s business is a dating service. In Brown & Bigelow, Inc. v. Rodela, FA 96466 (Nat. Arb. Forum Mar. 5, 2001), the panel found that the <hoylecasino.net> domain name was confusingly similar to the complainant’s HOYLE mark, and that the addition of “casino,” a generic word describing the type of business in which the complainant is engaged, does not take the disputed domain name out of the realm of confusing similarity. Similarly, the panel in Marriott Int’l, Inc. v. Café au lait, FA 93670, (Nat. Arb. Forum Mar. 13, 2000) found that the respondent’s domain name <marriott-hotel.com> was confusingly similar to the complainant’s MARRIOTT mark. In this case, the addition of the term “service” to Complainant’s mark is comparable to adding the term “casino” to the mark of a complainant in the casino business or to adding the term “hotel” to the mark of a complainant in the hotel business. Thus, the Panel finds that the disputed domain name is confusingly similar to Complainant’s mark pursuant to Policy ¶ 4(a)(i).
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant’s submission includes the assertion that
Respondent lacks rights or legitimate interests in the disputed domain
names. Previous panels, including those
in Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO
Respondent is using the disputed domain name to redirect
Internet users to Respondent’s website at the <datingservicedirect.com>
domain name. Respondent’s website
includes dating services that are in direct competition with Complainant’s
services offered at its <datingdirect.com> domain name. Presumably, Respondent is profiting from the
collection of fees for its dating services.
In similar circumstances, panels have found that such competing use of a
domain name is neither a bona fide offering of goods or services as
contemplated by Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use
pursuant to Policy ¶ 4(c)(iii). For
example, the panel in Ameritrade Holdings Corp. v. Polanski, FA 102715
(Nat. Arb. Forum Jan. 11, 2002) found 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. Similarly, in Coryn Group, Inc. v. Media
Insight, FA 198959 (Nat. Arb. Forum Dec.
5, 2003), the panel found that the respondent was not using the domain names
for a bona fide offering of goods or services nor a legitimate
noncommercial or fair use because the respondent used the names to divert
Internet users to a website that offered services that competed with those
offered by the complainant under its marks.
Thus, the Panel finds that Respondent has not established rights or
legitimate interests through a use contemplated by Policy ¶¶ 4(c)(i) or (iii).
Additionally, there is no available evidence that Respondent
is commonly known individually or professionally by the <datingservicedirect.com>
domain name. In Tercent Inc. v. Lee
Yi, FA 139720 (Nat. Arb. Forum
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Respondent is using the <datingservicedirect.com>
domain name to redirect Internet users to its website offering dating services
in direct competition with Complainant.
Internet users seeking Complainant’s genuine website at the
<datingdirect.com> domain name may find themselves instead redirected to
Respondent’s website and may end up doing business with Respondent instead of
with Complainant. Under similar
circumstances in Puckett, Individually v.
Miller, D2000-0297 (WIPO
Respondent’s <datingservicedirect.com> domain name is confusingly similar to Complainant’s DATING DIRECT mark. Internet users seeking Complainant’s genuine services may be redirected to Respondent’s website and mistakenly believe that it is sponsored by or affiliated with Complainant. Because Respondent’s disputed domain name contains Complainant’s mark along with the descriptive term “services” and because the website is used for services identical to those of Complainant, it is very likely that Internet users will believe that Respondent has some relationship with Complainant. Respondent is presumably profiting from this confusion by selling services that compete with Complainant. Previous panels have found that capitalizing on a confusingly similar domain name for commercial gain is evidence of bad faith registration and use. For example, in Amazon.com, Inc. v. Shafir, FA 196119 (Nat. Arb. Forum Nov. 10, 2003), the panel stated that, “as respondent is using the domain name at issue in direct competition with complainant, and giving the impression of being affiliated with or sponsored by complainant, this circumstance qualifies as bad faith registration and use of the domain name pursuant to Policy ¶ 4(b)(iv).” Similarly, the panel in Gardens Alive, Inc. v. D&S Linx, FA 203126 (Nat. Arb. Forum Nov. 20, 2003) found that “respondent registered and used the <my-seasons.com> domain name in bad faith pursuant to Policy ¶¶ 4(b)(iii) and (iv) because Respondent is using a domain name that is confusingly similar to the MYSEASONS mark for commercial benefit by diverting Internet users to the <thumbgreen.com> website, which sells competing goods and services.” Thus, the Panel finds that Respondent has exhibited bad faith registration and use pursuant to Policy ¶ 4(b)(iv).
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 <datingservicedirect.com> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated:
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