Calliope Media, LP v. Virtual Sky
Claim Number: FA0703000931676
Complainant is Calliope Media, LP (“Complainant”), represented by Jeremy
C. Shafer, of The Law Offices of Jeremy C. Shafer APLC,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <attorneyforyou.com>, registered with Moniker Online Services, Inc.
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 16, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of April 5, 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@attorneyforyou.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 <attorneyforyou.com> domain name is confusingly similar to Complainant’s ANATTORNEYFORYOU.COM mark.
2. Respondent does not have any rights or legitimate interests in the <attorneyforyou.com> domain name.
3. Respondent registered and used the <attorneyforyou.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Calliope Media, LP, is in the business of
putting individuals seeking legal services in touch with law firms throughout
the
Respondent registered the <attorneyforyou.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.
Complainant asserts rights in the
ANATTORNEYFORYOU.COM trademark by way of its registration with the USPTO. While Respondent’s registration of the <attorneyforyou.com> domain name
predates the registration date of Complainant’s trademark, the Panel finds that
it is the filing date that is relevant when determining rights in a mark under
Policy ¶ 4(a)(i). See Planetary Soc’y
v. Rosillo, D2001-1228 (WIPO Feb. 12, 2002) (holding that the effective
date of Complainant’s trademark rights date back to the application’s filing
date); see also Phoenix Mortgage Corp. v. Toggas, D2001-0101 (WIPO Mar. 30,
2001) (“The effective date of Complainant's federal rights is . . . the filing
date of its issued registration. Although
it might be possible to establish rights prior to that date based on use,
Complainant has submitted insufficient evidence to prove common law rights
before the filing date of its federal registration.”). As a result, the Panel finds that
Complainant’s rights in the ANATTORNEYFORYOU.COM domain name predate
Respondent’s domain name registration and establish Complainant’s rights for
purposes of Policy ¶ 4(a)(i). See
Lockheed Martin Corp. v. Hoffman, FA 874152 (Nat. Arb. Forum January 31,
2007) (finding that the complainant had sufficiently established rights in the
SKUNK WORKS mark through its registration with the USPTO); see also Metro.
Life Ins. Co. v. Bin g Glu, FA 874496 (Nat Arb. Forum Feb. 13, 2007)
(finding rights in the METLIFE mark as a result of its registration with the
Complainant contends that Respondent’s <attorneyforyou.com> domain name is confusingly similar to its ANATTORNEYFORYOU.COM trademark. Respondent’s disputed domain name contains the dominant features of Complainant’s registered mark but omits the article “an.” The Panel finds that such a minor distinction fails to distinguish Respondent’s <attorneyforyou.com> domain name from Complainant’s mark pursuant to Policy ¶ 4(a)(i). See Mega Soc. v. LoSasso, FA 215404 (Nat. Arb. Forum Jan. 30, 2004) (finding that the <megasociety.net> and <megasociety.com> domain names were identical or confusingly similar to Complainant's THE MEGA SOCIETY mark); see also Saul Zaentz Co. v. Dodds, FA 233054 (Nat. Arb. Forum Mar. 16, 2004) (the domain name merely omitted the definite article “the” and the preposition “of” from the complainant’s mark and thus, failed to “sufficiently distinguish the domain name from the mark pursuant to Policy ¶ 4(a)(i)”).
The Panel finds that Policy ¶ 4(a)(i) has been
satisfied.
Complainant contends that Respondent lacks all rights or legitimate interests in the <attorneyforyou.com> domain name. In instances where Complainant has made a prima facie case under Policy ¶ 4(a)(ii), the burden shifts to Respondent to set forth concrete evidence that it does possess rights or legitimate interests in the disputed domain name. See Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (holding that, where the complainant has asserted that the respondent has no rights or legitimate interests with respect to the domain name, it is incumbent on the respondent to come forward with concrete evidence rebutting this assertion because this information is “uniquely within the knowledge and control of the respondent”).
Complainant contends that Respondent is using the <attorneyforyou.com> domain name to connect to the <searchportal.com> domain name, a website that contains various sponsored links to commercial websites. The Panel finds that Respondent’s operation of a website at the disputed domain name for the purpose of collecting click-through fees for each misdirected Internet user is neither a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) nor legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). See ALPITOUR S.p.A. v. Ali Albloushi, FA 888651 (Nat. Arb. Forum Feb. 26, 2007) (rejecting the respondent’s contention of rights and legitimate interests in the <bravoclub.com> domain name as the respondent is merely using the domain name to operate a website containing links to various competing commercial websites, which 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 also Black & Decker Corp. v. Clinical Evaluations, FA 112629 (Nat. Arb. Forum June 24, 2002) (holding that the respondent’s use of the disputed domain name to redirect Internet users to commercial websites, unrelated to the complainant and presumably with the purpose of earning a commission or pay-per-click referral fee did not evidence rights or legitimate interests in the domain name).
Respondent has submitted no evidence that it is either commonly known by the disputed domain name or authorized to register domain names featuring Complainant’s mark. The Panel finds that Respondent has not established rights or legitimate interests pursuant to Policy ¶ 4(c)(ii). See 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); see also IndyMac Bank F.S.B. v. Eshback, FA 830934 (Nat. Arb. Forum Dec. 7, 2006) (finding that the respondent failed to establish rights and legitimate interests in the <emitmortgage.com> domain name as the respondent was not authorized to register domain names featuring the complainant’s mark and failed to submit evidence of that it is commonly known by the disputed domain name).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Respondent is using the <attorneyforyou.com> domain name for the purpose of collecting click-through fees for each misdirected Internet user connected to another website. Internet users searching for Complainant’s legitimate website will likely be confused when stumbling upon Respondent’s domain name as to Complainant’s sponsorship of or affiliation with the resulting website. The Panel finds that Respondent is attempting to capitalize on such confusion by collecting referral fees for each Internet user. Such use is evidence of bad faith registration and use 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 Drs. Foster & Smith, Inc. v. Lalli, FA 95284 (Nat. Arb. Forum Aug. 21, 2000) (finding bad faith where the respondent directed Internet users seeking the complainant’s site to its own website for commercial gain).
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 <attorneyforyou.com> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: April 20, 2007
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