Jagex Limited v. Jagex Ltd c/o Domain Administrator
Claim Number: FA0705000975548
Complainant is Jagex Limited (“Complainant”), represented by Adam
Taylor, of Adlex Solicitors, 76A
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <jegex.com>, registered with Nameview, 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 May 2, 2007; the National Arbitration Forum received a hard copy of the Complaint on May 3, 2007.
On May 23, 2007, Nameview, Inc. confirmed by e-mail to the National Arbitration Forum that the <jegex.com> domain name is registered with Nameview, Inc. and that Respondent is the current registrant of the name. Nameview, Inc. has verified that Respondent is bound by the Nameview, 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 May 24, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of June 13, 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@jegex.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 <jegex.com> domain name is confusingly similar to Complainant’s JAGEX mark.
2. Respondent does not have any rights or legitimate interests in the <jegex.com> domain name.
3. Respondent registered and used the <jegex.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Jagex Limited, is a corporation based in the
Respondent registered the <jegex.com> domain name on April 1, 2003. Respondent’s domain name currently resolves to a website displaying links to third-party websites containing content unrelated to Complainant or Complainant’s business. The WHOIS information for the disputed domain name previously indicated a third party owned the <jegex.com> domain name. After the filing of the original Complaint in this proceeding, the WHOIS information was changed to reflect the instant Respondent.
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.
The Panel finds that Complainant’s registration of the JAGEX mark with the USPTO and the UKPO sufficiently establishes Complainant’s rights in the JAGEX mark pursuant to Policy ¶ 4(a)(i). 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 The Royal Bank of Scot. Group plc v. TRB, FA 622345 (Nat. Arb. Forum Feb. 22, 2006) (“The Panel accepts Complainant’s registration of the THE ROYAL BANK OF SCOTLAND mark with the United Kingdom Patent Office as evidence of Complainant’s rights in the mark pursuant to Policy ¶ 4(a)(i).”).
The Panel finds that Respondent’s <jegex.com> domain name is confusingly similar to
Complainant’s JAGEX mark as it is a close misspelling of Complainant’s
mark. Respondent simply replaces the
letter “a” in Complainant’s mark with the letter “e” in the disputed domain
name. The addition of the generic
top-level domain (“gTLD”) “.com” in the disputed domain name is irrelevant to a
Policy ¶ 4(a)(i) analysis, as a top-level domain is a
required element of all domain names. 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
The Panel finds that Policy ¶ 4(a)(i)
has been satisfied.
Under Policy ¶ 4(a)(ii), Complainant must initially establish that Respondent lacks rights or legitimate interests with respect to the <jegex.com> domain name. However, once Complainant makes a prima facie case, the burden shifts and Respondent must then prove that it has 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”); 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 has no right or legitimate interest is sufficient to shift the burden of proof to the respondent to demonstrate that such a right or legitimate interest does exist). In this case, Complainant has established a prima facie case under Policy ¶ 4(a)(ii).
Respondent is using the <jegex.com>
domain name to display links to various third-party websites unrelated to
Complainant’s business. Complainant
alleges, and the Panel infers, that this is being done to commercially benefit
Respondent through the accrual of click-through fees. The Panel thus finds that this is not a bona fide offering of goods or services
under Policy ¶ 4(c)(i) or a legitimate noncommercial
or fair use under Policy ¶ 4(c)(iii). See WeddingChannel.com Inc. v. Vasiliev, FA 156716 (Nat. Arb.
Forum June 12, 2003) (finding that the respondent’s use
of the disputed domain name to redirect Internet users to websites unrelated to
the complainant’s mark, websites where the respondent presumably receives a
referral fee for each misdirected Internet user, was not a bona fide
offering of goods or services as contemplated by the Policy); see also Golden Bear Int’l, Inc. v. Kangdeock-ho, FA 190644 (Nat.
Arb. Forum Oct. 17, 2003) (“Respondent's use of a domain name confusingly
similar to Complainant’s mark to divert Internet users to websites unrelated to
Complainant's business does not represent a bona fide offering of goods or
services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under
Policy ¶ 4(c)(iii).”).
Although the WHOIS
information for Respondent indicates that Respondent is known as “Jagex Ltd,”
there is no other information in the record to suggest that Respondent is
commonly known by the disputed domain name under Policy ¶ 4(c)(ii). To the
contrary, as the WHOIS information for Respondent changed after the filing of
the initial Complaint to reflect Complainant’s name and address, a practice
known as “cyberflying,” the Panel finds that Respondent is not commonly known
by the disputed domain name under Policy ¶ 4(c)(ii). See MB Fin. Bank, N.A. v. MBBANK, FA 644517 (Nat. Arb. Forum
Apr. 4, 2006) (finding that the respondent had no rights or legitimate
interests in the disputed domain name where the respondent’s WHOIS information
had been altered following the filing of the complaint); see also British Sky Broad. Group plc v. Merino & Sky Services S.A.,
D2004-0131 (WIPO July 5, 2004) (holding that there was no evidence that the
respondent was commonly known by the disputed domain names where the
respondent’s information was the result of cyberflying).
The Panel thus finds that Policy ¶ 4(a)(ii) has been satisfied.
Respondent has registered and is using the <jegex.com> domain name in bad faith pursuant to Policy ¶ 4(b)(iv), because the disputed domain name resolves to a website displaying links to unrelated third-party websites. Respondent presumably receives click-through fees for each Internet user it redirects to other websites. The Panel thus finds that Respondent is commercially benefiting from the likelihood of confusion between the source and affiliation of the disputed domain name and Complainant’s JAGEX mark. See H-D Michigan, Inc. v. Petersons Auto., FA 135608 (Nat. Arb. Forum Jan. 8, 2003) (finding that the disputed domain name was registered and used in bad faith pursuant to Policy ¶ 4(b)(iv) through the respondent’s registration and use of the infringing domain name to intentionally attempt to attract Internet users to its fraudulent website by using the complainant’s famous marks and likeness); see also Perot Sys. Corp. v. Perot.net, FA 95312 (Nat. Arb. Forum Aug. 29, 2000) (finding bad faith where the domain name in question is obviously connected with the complainant’s well-known marks, thus creating a likelihood of confusion strictly for commercial gain).
Respondent's changing of its WHOIS information following the
filing of the original Complaint, in an attempt to circumvent the Policy, an
activity known as cyberflying, also indicates bad faith registration and use
under Policy ¶ 4(a)(iii). See Keyes v. Old Barn Studios Ltd.,
D2002-0687 (WIPO Sept. 23, 2002) (finding that the respondent attempted to
conceal its true identity as indicative of bad faith); see also Medco Health Solutions, Inc. v. Whois Privacy
Protection Serv., Inc., D2004-0453 (WIPO Aug. 25. 2004) (holding
the respondent’s efforts to disguise its true identity an example of bad faith
conduct).
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 <jegex.com> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: June 29, 2007
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