InfoSpace, Inc. v. Ramon Rojas
Claim Number: FA0704000969590
Complainant is InfoSpace, Inc. (“Complainant”),
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <wwwxinfospace.com>, registered with Go Daddy Software, 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.
Tyrus R. Atkinson, Jr., as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on April 24, 2007; the National Arbitration Forum received a hard copy of the Complaint on April 25, 2007.
On April 25, 2007, Go Daddy Software, Inc. confirmed by e-mail to the National Arbitration Forum that the <wwwxinfospace.com> domain name is registered with Go Daddy Software, Inc. and that Respondent is the current registrant of the name. Go Daddy Software, Inc. has verified that Respondent is bound by the Go Daddy Software, 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 26, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of May 16, 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@wwwxinfospace.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On May 22, 2007, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Tyrus R. Atkinson, Jr., 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 <wwwxinfospace.com> domain name is confusingly similar to Complainant’s INFOSPACE mark.
2. Respondent does not have any rights or legitimate interests in the <wwwxinfospace.com> domain name.
3. Respondent registered and used the <wwwxinfospace.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, InfoSpace, Inc., has continuously used the INFOSPACE mark in connection with its wireless and Internet software application services since 1995. Complainant is a pre-eminent worldwide leader in the wireless and broadband industry. Complainant operates websites at the <infospace.com> and <infospace.net> domain names.
Complainant has registered the INFOSPACE mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 2,121,439 issued December 16, 1997; Reg. No. 2,206,397 issued December 1, 1998; Reg. No. 2,580,133 issued June 11, 2002). Complainant also owns trademark registrations in over twenty-five countries worldwide.
Respondent registered the <wwwxinfospace.com> domain name on September 13, 2005. Respondent’s domain name does not resolve to any content.
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 INFOSPACE
mark under Policy ¶ 4(a)(i) by registering 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.”).
The <wwwxinfospace.com>
domain name is confusingly similar to Complainant’s INFOSPACE mark because the
domain name incorporates Complainant’s mark in its entirety and adds the prefix
“www,” the letter “x,” and the generic top-level domain “com.” The mere additions of a “www” prefix, the
letter “x,” and the generic top-level domain do not negate the confusing
similarity of Respondent’s domain name pursuant to Policy ¶ 4(a)(i). See Bank of Am. Corp. v. InterMos, FA
95092 (Nat. Arb. Forum Aug. 1, 2000) (finding that the respondent’s domain name
<wwwbankofamerica.com> is confusingly similar to the complainant’s
registered trademark BANK OF
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant claims that Respondent lacks rights and
legitimate interests in the <wwwxinfospace.com> domain name.
Complainant must first make a prima
facie case in support of its allegations, and then the burden shifts to
Respondent to show it does have rights or legitimate interests pursuant to
Policy ¶ 4(a)(ii). See G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum Oct. 1,
2002) (“Because Complainant’s Submission constitutes a prima facie case under the Policy, the burden effectively shifts to
Respondent. Respondent’s failure to
respond means that Respondent has not presented any circumstances that would
promote its rights or legitimate interests in the subject domain name under
Policy ¶ 4(a)(ii).”); see also 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”).
Respondent’s failure to answer the Complaint raises a
presumption that Respondent has no rights or legitimate interests in the <wwwxinfospace.com> domain name.
See Am. Online, Inc. v. AOL Int'l,
D2000-0654 (WIPO Aug. 21, 2000) (finding no rights or legitimate interests
where the respondent fails to respond); see
also BIC Deutschland GmbH & Co. KG v. Tweed, D2000-0418 (WIPO June 20,
2000) (“By not submitting a response, Respondent has failed to invoke any
circumstance which could demonstrate, pursuant to ¶ 4(c) of the Policy, any
rights or legitimate interests in the domain name”). However, the Panel will
now examine the record to determine if Respondent has rights or legitimate
interests under Policy ¶ 4(c).
Respondent has registered the domain name under the name
“Ramon Rojas” and there is no other evidence in the record suggesting that
Respondent is commonly known by the <wwwxinfospace.com> domain name.
Thus, Respondent has not established rights or legitimate interests in
the <wwwxinfospace.com> domain name pursuant to 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 Wells Fargo & Co. v. Onlyne Corp. Services11, Inc., FA 198969 (Nat. Arb. Forum Nov. 17,
2003) (“Given the WHOIS contact information for the disputed domain [name], one
can infer that Respondent, Onlyne Corporate Services11, is not commonly known
by the name ‘welsfargo’ in any derivation.”).
Furthermore, Respondent’s <wwwxinfospace.com> domain name, which is confusingly similar to
Complainant’s INFOSPACE mark, does not resolve to any content. Because Respondent has not used the disputed
domain name for any purpose since registering it on September 13, 2005, the
Panel finds that Respondent is not using the disputed domain name in connection
with a bona fide offering of goods or
services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use
pursuant to Policy ¶ 4(c)(iii). See Pharmacia & Upjohn AB v. Romero,
D2000-1273 (WIPO Nov. 13, 2000) (finding no rights or legitimate interests
where the respondent failed to submit a response to the complaint and had made
no use of the domain name in question); see
also TMP Int’l, Inc. v. Baker Enters., FA 204112 (Nat. Arb. Forum Dec. 6, 2003) (“[T]he Panel
concludes that Respondent's passive holding of the domain name does not
establish rights or legitimate interests pursuant to Policy ¶ 4(a)(ii).”).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Respondent is not using the <wwwxinfospace.com> domain name, and has not provided any demonstrable preparations to use the disputed domain name. Therefore, Respondent’s non-use of the disputed domain name since September 13, 2005 constitutes bad faith registration and use under Policy ¶ 4(a)(iii). See Clerical Med. Inv. Group Ltd. v. Clericalmedical.com, D2000-1228 (WIPO Nov. 28, 2000) (finding that merely holding an infringing domain name without active use can constitute use in bad faith); see also Telstra Corp. v. Nuclear Marshmallows, D2000-0003 (WIPO Feb. 18, 2000) (“[I]t is possible, in certain circumstances, for inactivity by the Respondent to amount to the domain name being used in bad faith.”).
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 <wwwxinfospace.com> domain name be TRANSFERRED from Respondent to Complainant.
Tyrus R. Atkinson, Jr., Panelist
Dated: June 4, 2007
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