Cybertania, Inc v. Domain Investments LLC c/o Jordan Levinson
Claim Number: FA0704000952246
Complainant is Cybertania, Inc (“Complainant”), represented by Leo
Radvinsky,
REGISTRAR AND DISPUTED DOMAIN
NAMES
The domain names at issue are <mhfreepaysite.com>, <myvreepaysite.com>, <myfrewpaysite.com>, <myfreepwysite.com>, <myffeepaysite.com> and <myfreepaysitd.com>, registered with Moniker Online Services, Inc., and
<myfreepaysire.com>, registered with Red Register, 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.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on April 2, 2007; the National Arbitration Forum received a hard copy of the Complaint on April 2, 2007.
On April 3, 2007, Moniker Online Services, Inc. confirmed by e-mail to the National Arbitration Forum that the <myfreepaysitd.com>, <myffeepaysite.com>, <myfreepwysite.com>, <myfrewpaysite.com>, <myvreepaysite.com>, and <mhfreepaysite.com> domain names are registered with Moniker Online Services, Inc. and that Respondent is the current registrant of the names. Moniker Online Services, Inc. has verified that Respondent is bound by the Moniker Online Services, 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 April 3, 2007, Red Register, Inc. confirmed by e-mail to the National Arbitration Forum that the <myfreepaysire.com> domain name is registered with Red Register, Inc. and that Respondent is the current registrant of the name. Red Register, Inc. has verified that Respondent is bound by the Red Register, Inc. registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with the Policy.
On April 11, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of April 11, 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@myfreepaysire.com, postmaster@myfreepaysitd.com, postmaster@myffeepaysite.com, postmaster@myfreepwysite.com, postmaster@myfrewpaysite.com, postmaster@myvreepaysite.com, and postmaster@mhfreepaysite.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 names be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <myfreepaysire.com>, <myfreepaysitd.com>, <myffeepaysite.com>, <myfreepwysite.com>, <myfrewpaysite.com>, <myvreepaysite.com>, and <mhfreepaysite.com> domain names are confusingly similar to Complainant’s MYFREEPAYSITE.COM mark.
2. Respondent does not have any rights or legitimate interests in the <myfreepaysire.com>, <myfreepaysitd.com>, <myffeepaysite.com>, <myfreepwysite.com>, <myfrewpaysite.com>, <myvreepaysite.com>, and <mhfreepaysite.com> domain names.
3. Respondent registered and used the <myfreepaysire.com>, <myfreepaysitd.com>, <myffeepaysite.com>, <myfreepwysite.com>, <myfrewpaysite.com>, <myvreepaysite.com>, and <mhfreepaysite.com> domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Cybertania, Inc,
owns and operates one of the most popular and most visited adult web sites,
which features images and video clips of female models, movies, games, and
fictitious stories. Complainant has
millions of registered customers from around the world and, according to Google
Analytics, Complainant’s web site receives over 20 million unique visitors per
month. In connection with its adult
entertainment services, Complainant has registered the MYFREEPAYSITE.COM mark
with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 3,129,466
issued August 15, 2006).
Respondent registered the <myfreepaysire.com>
domain name on November 15, 2006 and the <myfreepaysitd.com>, <myffeepaysite.com>,
<myfreepwysite.com>, <myfrewpaysite.com>, <myvreepaysite.com>,
and <mhfreepaysite.com> domain names on December 19, 2006. All seven of the disputed domain names
redirect users to a commercial adult entertainment services web site that
competes directly with 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 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 has established rights in the MYFREEPAYSITE.COM mark pursuant to Policy ¶ 4(a)(i) through its
registration of the mark with the USPTO.
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 Vivendi Universal Games v. XBNetVentures Inc., FA 198803
(Nat. Arb. Forum Nov. 11, 2003) (“Complainant's federal trademark registrations
establish Complainant's rights in the BLIZZARD mark.”).
Respondent’s <myfreepaysire.com>, <myfreepaysitd.com>, <myffeepaysite.com>, <myfreepwysite.com>, <myfrewpaysite.com>, <myvreepaysite.com>, and <mhfreepaysite.com> domain names are confusingly similar to Complainant’s MYFREEPAYSITE.COM mark pursuant to Policy ¶ 4(a)(i) because each domain name is a slight misspelling of Complainant’s mark, which does not sufficiently distinguish any of the disputed domain names from Complainant’s mark. See Victoria’s Secret v. Zuccarini, FA 95762 (Nat. Arb. Forum Nov. 18, 2000) (finding that, by misspelling words and adding letters to words, a respondent does not create a distinct mark but nevertheless renders the domain name confusingly similar to the complainant’s marks); see also Hewlett-Packard Co. v. Zuccarini, FA 94454 (Nat. Arb. Forum May 30, 2000) (finding the domain name <hewlitpackard.com> to be identical or confusingly similar to the complainant’s HEWLETT-PACKARD mark).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(i).
Complainant alleges that Respondent has no rights or legitimate interests in the <myfreepaysire.com>, <myfreepaysitd.com>, <myffeepaysite.com>, <myfreepwysite.com>, <myfrewpaysite.com>, <myvreepaysite.com>, and <mhfreepaysite.com> domain names. Because Complainant made 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). Since Respondent failed to respond to the Complaint, the Panel assumes that Respondent does not have rights or legitimate interests in the disputed domain names. 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); 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.”). Nevertheless, the Panel will examine the record to determine if Respondent has rights or legitimate interests under Policy ¶ 4(c).
Respondent is using the disputed domain names, which are
confusingly similar to Complainant’s MYFREEPAYSITE.COM
mark, to divert
Internet users to a commercial web site that offers adult entertainment services
in direct competition with Complainant.
Such use of the disputed domain names does not constitute a bona fide offering of goods and services pursuant to Policy ¶ 4(c)(i), or a legitmate
noncommercial or fair use of the domain names pursuant to Policy ¶ 4(c)(iii).
Complainant asserts that
Respondent is not authorized or licensed to use Complainant’s MYFREEPAYSITE.COM
mark and that Respondent is not associated with Complainant in any way. Furthermore, Respondent’s WHOIS
information, as well as other information in the record, does not suggest that
Respondent is commonly known by the <myfreepaysire.com>, <myfreepaysitd.com>,
<myffeepaysite.com>, <myfreepwysite.com>, <myfrewpaysite.com>,
<myvreepaysite.com>, and <mhfreepaysite.com>
domain names. Therefore, the Panel finds
that Respondent is not commonly known by the disputed domain names under Policy
¶ 4(c)(ii). See Gallup, Inc. v. Amish
Country Store, FA 96209 (Nat. Arb. Forum Jan. 23, 2001) (finding that the
respondent does not have rights in a domain name when the respondent is not
known by the mark); see also Am. W. Airlines, Inc. v. Paik, FA 206396 (Nat. Arb. Forum Dec. 22, 2003) (“Respondent
has registered the domain name under the name ‘Ilyoup Paik a/k/a David
Sanders.’ Given the WHOIS domain name
registration information, Respondent is not commonly known by the
[<awvacations.com>] domain name.”).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
Respondent is using all of the disputed domain names, which
are confusingly similar to Complainant’s MYFREEPAYSITE.COM
mark, to redirect Internet users to a commercial web site that directly
competes with Complainant’s web site.
The Panel finds such use indicates bad faith according to Policy ¶
4(b)(iii) because it appears that Respondent has registered and is using the <myfreepaysire.com>, <myfreepaysitd.com>,
<myffeepaysite.com>, <myfreepwysite.com>, <myfrewpaysite.com>,
<myvreepaysite.com>, and <mhfreepaysite.com>
domain names for the primary purpose of disrupting Complainant’s business. See Gen. Media Commc’ns, Inc. v. Vine Ent., FA 96554 (Nat. Arb. Forum
Mar. 26, 2001) (finding bad faith where a competitor of the complainant
registered and used a domain name confusingly similar to the complainant’s
PENTHOUSE mark to host a pornographic web site); 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 is using all of the disputed domain names to redirect Internet users seeking Complainant’s adult entertainment web site to a competing adult entertainment web site. The Panel finds such use of the disputed domain names to be evidence of bad faith registration and use under Policy ¶ 4(b)(iv) because Respondent is taking commercial advantage of the confusing similarity between Respondent’s domain names and Complainant’s mark. See Nokia Corp. v. Private, D2000-1271 (WIPO Nov. 3, 2000) (finding bad faith registration and use pursuant to Policy ¶ 4(b)(iv) where the domain name resolved to a website that offered similar products as those sold under the complainant’s famous mark); see also TM Acquisition Corp. v. Carroll, FA 97035 (Nat. Arb. Forum May 14, 2001) (finding bad faith where the respondent used the domain name, for commercial gain, to intentionally attract users to a direct competitor of the complainant).
The Panel finds that Complainant has 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 <myfreepaysire.com>, <myfreepaysitd.com>, <myffeepaysite.com>, <myfreepwysite.com>, <myfrewpaysite.com>, <myvreepaysite.com>, and <mhfreepaysite.com> domain names be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: May 14, 2007
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