LIVEPERSON, INC. v. Online Management
Claim Number: FA1409001580204
Complainant is LIVEPERSON, INC. (“Complainant”), represented by Jennifer M. Hetu of Honigman Miller Schwartz and Cohn LLP, Michigan, USA. Respondent is Online Management (“Respondent”), Cayman Islands.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <liveperosn.com>, registered with GoDaddy.com, LLC.
The undersigned certifies he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.
Houston Putnam Lowry, Chartered Arbitrator, as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on September 17, 2014; the National Arbitration Forum received payment on September 17, 2014.
On September 19, 2014, GoDaddy.com, LLC confirmed by e-mail to the National Arbitration Forum that the <liveperosn.com> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, LLC registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On September 23, 2014, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 14, 2014 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@liveperosn.com. Also on September 23, 2014, the Written Notice of the Complaint, notifying Respondent of the e-mail addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On October 22, 2014, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Houston Putnam Lowry, Chartered Arbitrator, 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" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2. 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
A. Complainant and Its Goods and Services
13. A Well-Known, Worldwide Brand. Complainant is a well-known global leader in intelligent online customer engagement. Since at least as early as November 1998, Complainant has provided a web-based platform in association with its LIVEPERSON trademark that enables businesses to connect with their customers online and in real-time by way of text based conversation, voice based conversation and digital content delivery. This enables customers to deal with any number of business issues, product queries, and customer interaction allowing them to increase customer conversions, specifically transactions, and improve consumer experience. Complainant’s web-based platform enables this “intelligent engagement” to take place through various different media formats, including through Internet websites, social media platforms and mobile cellular devices.
14. Complainant’s LIVEPERSON platform has received extensive industry and commercial recognition throughout North America and around the world. In April 2000, Complainant completed an initial public offering on the NASDAQ stock exchange and in March 2011 began trading on the Tel Aviv Stock Exchange. Since its inception, Complainant has grown through numerous international corporate acquisitions.
15. More than 8,500 companies use the LIVEPERSON platform to increase customer conversions and improve customer experience. Those customers have included international blue-chip companies such as Cisco, Hewlett-Packard, IBM, Microsoft, Verizon, Sky, Walt Disney, PNC, QVC, and Orbitz. As a result of its continued success, by 2012 Complainant had reached more than 20 million interactions per month through its LIVEPERSON platform, which equates to almost a quarter of a billion interactions per year.
16. Complainant’s corporate headquarters are located in New York City but it maintains offices around the world, including in Atlanta, London, Melbourne, San Francisco, Santa Monica, and Tel Aviv. Complainant has established a strong international presence and has provided services through the LIVEPERSON platform to customers in more than 90 countries worldwide, including in Canada, the United States, the European Union, the United Kingdom, China, Hong Kong, Taiwan, Singapore, Australia, New Zealand, Brazil, India, Israel, Japan, Mexico and Russia.
17. Complainant’s Domain Name and Website. Complainant’s primary website is located at <LivePerson.com>. The search metric database Alexa.com ranks the <LivePerson.com> site as among the top 6,000 sites in the United States. Complainant also owns the domain <LivePerson.net>, which redirects to the <LivePerson.com> website. Collectively, Complainant’s referenced domain names are referred to as the “LivePerson Domain Names.”
B. Complainant’s Trademarks
18. The LIVEPERSON trademark symbolizes the tremendous goodwill associated with Complainant and Complainant’s goods and services. The LIVEPERSON trademark is unique, distinctive, and extremely valuable. The LIVEPERSON trademark has been widely promoted among members of the general consuming public and in the marketing and computer services fields. The LIVEPERSON trademark exclusively identifies Complainant and its goods and services. Furthermore, due to widespread, continuous, and highly publicized use throughout the United States and the world, the LIVEPERSON trademark has become extremely well-known and was so long before Respondent registered the Domain Name in 2014.
19. Complainant owns the following U.S. trademark registrations for the LIVEPERSON trademarks:
a) U.S. Reg. No. 3704339 for the mark LIVEPERSON filed September 19, 2008, and issued November 3, 2009 for use in connection with computer software, business consultation services, business advice and commercial information, instant messaging services, application service provider (ASP) featuring software for use by businesses for sales and customer service communications via on-line chats, hosting services, and an on-line community for registered users to participate in discussions, get feedback from their peers, form virtual communities, and engage in social networking; and
b) U.S. Reg. No. 3815153 for the mark LIVEPERSON (stylized) filed September 19, 2008 and issued July 6, 2010 for use in connection with computer software, business consultation services, business advice and commercial information, instant messaging services, application service provider (ASP) featuring software for use by businesses for sales and customer service communications via on-line chats, hosting services, and an on-line community for registered users to participate in discussions, get feedback from their peers, form virtual communities, and engage in social networking.
20. Complainant’s trademark rights in the LIVEPERSON trademark, based on its extensive trademark registrations and on its common law rights acquired through the use of the LIVEPERSON trademark and the corresponding LivePerson Domain Names, long predate Respondent’s registration of the Domain Name in 2014.
C. Respondent’s Infringing Activities and Bad Faith Acts
21. Respondent misappropriated Complainant’s goodwill when it registered the Domain Name, which is confusingly similar to Complainant’s LIVEPERSON trademark and the LivePerson Domain Names. Specifically, the Domain Name is comprised of the term “LIVEPEROSN,” which is Complainant’s LIVEPERSON trademark with the letters “O” and “S” transposed, and the generic top-level domain (“gTLD”) “.com.” “The transposition of two letters does not create a distinct mark capable of overcoming a claim of confusing similarity, as the result reflects a very probable typographical error.” Google Inc. v. Jon G., FA 106084 (Nat. Arb. Forum Apr. 26, 2002) (finding <googel.com> to be confusingly similar to the complainant’s GOOGLE mark). See also Brown Shoe Co., Inc. and its subsidiary Brown Group Retail, Inc. v. duanxiangwang / duanxiangwang, FA 1520856 (Nat. Arb. Forum Nov. 4, 2013) (“Respondent has transposed two letters in the FAMOUS FOOTWEAR mark to form the substance of the domain name. . . as the only point of reference for any of these domain names is the FAMOUS FOOTWEAR mark, all of the domain names are confusingly similar”); MB Financial Bank, N.A. v ICS INC., FA FA1404001552275 (Nat. Arb. Forum May 1, 2014) (“Respondent’s <mbfinanical.com> domain name is confusingly similar to the MB FINANCIAL mark. The domain name merely transposes the letters ‘c’ and ‘i’ in the MB FINANCIAL mark, adding the irrelevant gTLD ‘.com.’ ...The transposition of letters in a mark enhances the confusing similarity of a domain name”); and Guardian News & Media Limited v. D-Max Limited, FA1308001514364 (Nat. Arb. Forum Sept. 23, 2013) (“The Panel notes that the letters ‘u’ and ‘a’ within the mark are transposed in the domain name, and further, the spacing between the two terms of the mark is omitted. The Panel finds that transposing letters and removing spacing from a mark to form the domain name renders the domain name confusingly similar to the mark.”).
Furthermore, the addition of a gTLD is of no consequence to the Policy ¶4(a)(i) analysis. See Isleworth Land Co. v. Lost in Space, SA, FA 117330 (Nat. Arb. Forum Sept. 27, 2002) (“[I]t is a well established principle that generic top-level domains are irrelevant when conducting a Policy ¶4(a)(i) analysis.”). Additionally, the Domain Name is virtually identical to Complainant’s <LivePerson.com> domain name, with the only difference being the transposition of the letters “O” and “S”.
Accordingly, consumers who encounter the Domain Name are likely to assume that it relates to Complainant’s business.
22. Given the consumer recognition, distinctiveness, and well-known status of the LIVEPERSON trademark, there can be no doubt but that Respondent registered the Domain Name to trade upon Complainant’s goodwill and to attract and divert Complainant’s online customers for profit. The Domain Name consists of the term “LIVEPEROSN,” which is virtually identical to the well-known LIVEPERSON trademark and the LivePerson Domain Names. LIVEPEROSN is a term that has no meaning other than as a misspelling of Complainant’s trademark. By the time Respondent registered the Domain Name, Complainant’s LIVEPERSON trademark had been well-established and well-known. Further, Complainant’s nearly identical domain names <LivePerson.com> and <LivePerson.net> were created in 1998 and 1999, respectively, which is fifteen years before Respondent registered the Domain Name in 2014.
23. The website associated with the Domain Name initially contained hyperlinks to various commercial websites, including competing live chat software and services. Other than these hyperlinks, there was no other content that would indicate a lack of bad faith, or would otherwise show any rights or legitimate interest of Respondent. No bona fide goods and services were offered on the Infringing Website. This further demonstrates that the Domain Name was intentionally derived from the LIVEPERSON trademark rather than representing any unique goodwill or identity of the Respondent.
24. On April 9, 2014, Complainant sent a cease and desist letter to Respondent via the registrant email address listed in the WHOIS record, as well as to the registrar via email (abuse@godaddy.com). Complainant did not receive a response, and sent a follow-up letter on May 6, 2014. On the same day, Complainant sent a letter to DomainSponsor, as its Legal Policies were posted on the Infringing Website. On May 8, Complainant received a response from DomainSponsor/Oversee.net indicating that the Domain Name would be blocked from its system. By May 12, 2014, all links and other content were removed from the Infringing Website. Complainant believes that Respondent will re-post this content in the near future.
25. Respondent’s use of the Domain Name with the Infringing Website was intentionally designed to cause a likelihood of confusion with Complainant and its goods and services and to deceive consumers into mistakenly believing that Respondent is authorized, licensed, or sponsored by Complainant; or is otherwise connected, associated, or affiliated with Complainant and/or its LIVEPERSON trademark and the LivePerson Domain Names. The Infringing Website does not currently, nor did it ever, contain anything of substance or any legitimate offering of products or services. Instead, the Infringing Website only featured hyperlinks to various commercial websites, including Complainant’s competitors. Moreover, the Domain Name is strikingly similar to the LivePerson Domain Names.
26. As evidenced above, Respondent’s misappropriation of the Domain Name has injured and will continue to irreparably injure the reputation and hard-earned goodwill of Complainant and its LIVEPERSON trademark. If Respondent is allowed to retain ownership of the Domain Name, Internet users will continue to be confused and deceived, and Complainant’s reputation will be harmed.
VI. RESPONDENT HAS NO RIGHTS OR LEGITIMATE INTEREST IN THE DOMAIN NAME
27. As stated above, Respondent is not using, has not used, and/or has not demonstrated an intent to use the Domain Name in connection with a bona fide offering of goods or services. Respondent is not now and never has been commonly known by the Domain Name. Respondent is not making legitimate noncommercial or fair use of the Domain Name, without intending to mislead and divert consumers or to dilute the LIVEPERSON trademark for commercial gain. The Domain Name was used with the Infringing Website, which merely contained hyperlinks to various commercial websites, including Complainant’s competitors in the live chat software and services field.
28. Respondent previously used the Domain Name in connection with its Infringing Website, which featured hyperlinks to the commercial websites of Complainant’s competitors. Respondent did not sell products or provide any services, and when Internet users clicked on the hyperlinks, they were redirected to the underlying commercial site. Respondent likely collected “click-through” or “pay-per-click” profits by directing Internet users to the underlying commercial websites. Such use does not amount to a bona fide offering of goods or services under Policy ¶4(c)(i) or a legitimate noncommercial or fair use of the disputed domain name under Policy ¶4(c)(iii). See Vanguard Trademark Holdings USA LLC v. Server Thoughts, FA1112001421216 (Nat. Arb. Forum February 3, 2012) (holding that the respondent’s use of a domain name used in connection with a website that features hyperlinks to the websites of the complainant’s competitors, while likely receiving profits in the form of “click-through” associated with the visits of Internet users to the websites resolving from the hosted hyperlinks, does not amount to a bona fide offering of goods or services under Policy ¶4(c)(i) or a legitimate noncommercial or fair use of the disputed domain name under Policy ¶4(c)(iii)); ALPITOUR S.p.A. v. balata inc, FA FA0701000888649 (Nat. Arb. Forum Feb. 27, 2007) (finding that “using the confusingly similar <viaggidea.com> domain name to operate a website that features links to various commercial websites from which Respondent presumably receives referral fees . . . is neither a bona fide offering of goods or services pursuant to Policy ¶4(c)(i) nor a legitimate non-commercial or fair use pursuant to Policy ¶4(c)(iii).”); and Carey International, Inc. d/b/a Manhattan International Limousine Network Ltd v. Alex Kogan, FA FA0505000486191 (Nat. Arb. Forum July 29, 2005) (holding that a respondent’s use of disputed domain names, which were confusingly similar to the mark of a complainant, to market limousine services competing with the business of that complainant, was not a bona fide offering of goods or services under Policy ¶4(c)(i), where that respondent appropriated the mark in a domain name in order to profit from its use.).
VII. RESPONDENT’S BAD FAITH UNDER SECTION 4(B) OF THE UDRP
29. Respondent’s registration and use of the Domain Name meets the bad faith element set forth in §§4(b)(i), (ii), (iii) and (iv) of the UDRP. Respondent registered a domain name comprised entirely a term that is confusingly similar to Complainant’s LIVEPERSON trademark. In the present case, the term “LIVEPEROSN” in the Domain Name has no meaning other than as a reference to Complainant’s LIVEPERSON trademark. Nor does use of the term “LIVEPEROSN,” which is Complainant’s LIVEPERSON trademark with the letters “O” and “S” transposed, create any meaning other than an association with Complainant. Respondent used the Domain Name to divert internet users to its Infringing Website, which featured links to the websites of Complainant’s competitors. Respondent’s use of the Domain Name is likely to cause confusion with and dilution of Complainant’s LIVEPERSON trademark.
30. Respondent’s registration and use of the Domain Name meets the bad faith element set forth in Section 4(b)(i) and (iv) of the UDRP. Specifically, because Respondent has no legitimate interest in the Domain Name and because it is clearly confusingly similar to the LIVEPERSON trademark and the LivePerson Domain Names, there can be no explanation other than that Respondent is attempting to highjack the Domain Name for financial gain or intentionally attracting users to the Infringing Website for commercial gain by creating a likelihood of confusion with the LIVEPERSON trademark and LivePerson Domain Names. As mentioned above, Respondent used the Domain Name in connection with its Infringing Website, which featured hyperlinks to the commercial websites of Complainant’s competitors. Respondent likely collected “click-through” or “pay per click” profits by directing Internet users to the underlying commercial websites. Respondent does not directly sell any of the products or provide any of the services it features on the Infringing Website. Respondent referenced particular products and services using hyperlinks on the Infringing Website, which go directly to the underlying commercial websites. See Provide Gifts, Inc. d/b/a RedEnvelope v. Privacy Ltd. Disclosed Agent for YOLAPT c/o Domain Admin, FA0909001286921 (Nat. Arb. Forum Nov. 9, 2009) (“Respondent has created a substantial likelihood of confusion as to the source and affiliation of the <redenevelope.com> domain name and the corresponding website. Respondent benefits from such a likelihood of confusion, as it receives referral fees for the competitive upscale gifts advertisements that are displayed to the diverted Internet users. The Panel finds this to be adequate evidence of Respondent’s bad faith registration and use pursuant to Policy ¶4(b)(iv).”), and Univ. of Houston Sys. v. Salvia Corp., FA 637920 (Nat. Arb. Forum Mar. 21, 2006) (“Respondent is using the disputed domain name to operate a website which features links to competing and non-competing commercial websites from which Respondent presumably receives referral fees. Such use for Respondent’s own commercial gain is evidence of bad faith registration and use pursuant to Policy ¶4(b)(iv).”).
31. Additionally, the Infringing Website previously contained the language “Domain Sale Click Here to Buy Now!” “Respondent’s general offer to sell the domain name suggests bad faith registration and use of the domain name pursuant to usTLD Policy 4(b)(ii).” Vanguard Trademark Holdings USA LLC v. Anne, FA1406001566643 (Nat. Arb. Forum July 27, 2014). See also PersonalizationMall.com v. ICS INC., FA1406001563875 (Nat. Arb. Forum July 17, 2014) (“As the Panel agrees that Respondent has offered to sell the disputed domain to third parties on the webpage to which the disputed domain name resolves, the Panel finds that Respondent has registered and is using the disputed domain name in bad faith pursuant to Policy ¶4(b)(i)”); and Bank of Am. Corp. v. Nw. Free Cmty. Access, FA 180704 (Nat. Arb. Forum Sept. 30, 2003) (“Respondent's general offer of the disputed domain name registration for sale establishes that the domain name was registered in bad faith under Policy ¶4(b)(i)”).
32. Furthermore, because of the well-known status of the LIVEPERSON trademark and the LivePerson Domain Names, Respondent clearly had prior knowledge of Complainant’s rights when it registered the Domain Name. Respondent also had constructive knowledge of Complainant’s marks, because the marks are well-known and federally registered, and because Respondent’s use is so transparently opportunistic. See Orange Glo Int’l v. Blume, (NAF FA 118313) (“Complainant’s OXICLEAN mark is listed on the Principal Register of the USPTO, a status that confers constructive notice on those seeking to register or use the mark or any confusingly similar variation thereof”). “[T]here is a legal presumption of bad faith, when Respondent reasonably should have been aware of Complainant’s trademarks, actually or constructively.” Digi Int’l v. DDI Sys. (NAF FA 124506); see also Sea World, Incorporated v. Holix Inc. (NAF FA0702000924533) (“registration of a domain name containing Complainant’s well-known mark with knowledge of Complainant’s rights is evidence of bad faith registration and use pursuant to Policy ¶4(a)(iii)”); Samsonite Corp. v. Colony Holding, (NAF FA 94313) (finding that evidence of bad faith includes actual or constructive knowledge of a commonly known mark at the time of registration). Accordingly, Complainant has established bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
(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.
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."
Paragraph 4(a) of the Policy requires Complainant prove the following three elements to obtain an order cancelling or transferring a domain name:
(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.
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.”).
Complainant uses the LIVEPERSON mark in connection with its business in “online customer engagement services.” Complainant owns the LIVEPERSON mark through its trademark registrations with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 3,704,339, registered November 3, 2009). Such national registrations are sufficient to establish rights in the LIVEPERSON mark pursuant to Policy ¶4(a)(i), regardless of where Respondent is located. See Victoria's Secret Stores Brand Mgmt., Inc. v. Machuszek, FA 945052 (Nat. Arb. Forum May 7, 2007) (finding that “Complainant has established rights in the VICTORIA’S SECRET mark through [multiple] registrations [with the USPTO] under Policy ¶4(a)(i).”). It is only necessary Complainant show SOME rights at this stage. Complainant is not required to show it has superior rights. Therefore, Complainant’s USPTO registrations are sufficient to satisfy the requirements of Policy ¶4(a)(i).
Complainant claims the disputed domain name is confusingly similar to Complainant’s mark. Respondent has simply transposed the letters “o” and “s” in the mark to come up with the disputed domain name. The disputed domain name also differs from the mark given the addition of the generic top-level domain (“gTLD”) “.com” Previous panels have generally found that transposing letters in a domain name can still be found to be confusingly similar to the complainant’s mark, and adding a gTLD is irrelevant to the Policy ¶4(a)(i) analysis. See Wyndham IP Corp. v. LaPorte Holdings, Inc., FA 373545 (Nat. Arb. Forum Jan. 17, 2005) (finding the <wynhdam.com> and <wyandham.com> domain names to be confusingly similar to the complainant’s WYNDHAM mark because the domain names merely transposed letters in the mark); see also Starwood Capital Grp. Global LLC v. Resort Realty, FA 1043061 (Nat. Arb. Forum Sept. 6, 2007) (“Furthermore, the addition of the generic top-level domain ‘.com’ does nothing to eliminate the confusing similarity, as a top-level domain is a requirement for all domain names.”). Therefore, Respondent’s disputed domain name is confusingly similar to Complainant’s mark under Policy ¶4(a)(i).
The Panel finds Policy ¶4(a)(i) satisfied.
Complainant must first make a prima facie case Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶4(a)(ii). Then the burden shifts to Respondent to show it has rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under UDRP ¶4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name); see also AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006) (“Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.”).
Respondent is not commonly known by the disputed domain name. The WHOIS information currently identifies “Online Management” as the registrant of the disputed domain name. Complainant has neither licensed nor authorized Respondent to use the LIVEPERSON mark. Respondent has failed to submit a response to refute any of Complainant’s arguments. Given the lack of contrary evidence, it seems clear Respondent is not commonly known by the disputed domain name pursuant to Policy ¶4(c)(ii). See Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Nat. Arb. Forum July 17, 2006) (concluding that the respondent was not commonly known by the <coppertown.com> domain name where there was no evidence in the record, including the WHOIS information, suggesting that the respondent was commonly known by the disputed domain name).
Complainant claims Respondent has not provided any bona fide offering of goods or services, or made a legitimate noncommercial or fair use of the disputed domain name. The disputed domain name previously redirected confused Internet users to a website containing a variety of different links to third-party websites, some of which are in direct competition with Complainant. Generally, such behavior is inconsistent with a bona fide offering of goods or services, or a legitimate noncommercial or fair use of a disputed domain name, because the domain name is merely trading upon a third-party mark to promote advertisements that would be unlikely to garner consumer interest in themselves. See Meyerson v. Speedy Web, FA 960409 (Nat. Arb. Forum May 25, 2007) (finding that where a respondent has failed to offer any goods or services on its website other than links to a variety of third-party websites, it was not using a domain name in connection with a bona fide offering of goods or services under Policy ¶4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶4(c)(iii)). Therefore, Respondent’s previous use of the disputed domain name did not constitute a bona fide offering of goods or services, or make a legitimate noncommercial or fair use under Policy ¶4(c)(i) and Policy ¶4(c)(iii).
Respondent registered the disputed domain using a privacy service. This means the real respondent at issue did not publicly associate itself with the disputed domain name. The registered owner did not control the contents of the resolving web site and acted only as a nominee. Respondent has not obtained any rights from owning the disputed domain name.
The Panel finds Policy ¶4(a)(ii) satisfied.
Complainant claims Respondent is using the disputed domain name in bad faith by placing a general offer to sell the domain name. General offers to sell a disputed domain name have typically been found to be bad faith under Policy ¶4(b)(i). See Bank of Am. Corp. v. Nw. Free Cmty. Access, FA 180704 (Nat. Arb. Forum Sept. 30, 2003) (“Respondent's general offer of the disputed domain name registration for sale establishes that the domain name was registered in bad faith under Policy ¶4(b)(i).”). There is no reason to depart from this general convention under the facts of this case. Respondent’s general offer for sale constitutes bad faith pursuant to Policy ¶4(b)(i).
Respondent previously used the disputed domain name to display a variety of different third-party links, some of which directly competed with Complainant. Such use of a disputed domain name demonstrates use in bad faith 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.’”). Therefore, Respondent used the disputed domain name in bad faith pursuant to Policy ¶4(b)(iv).
Finally, Respondent registered the disputed domain name using a privacy service. This raises the rebuttable presumption of bad faith in a commercial context. Respondent has done nothing to rebut that presumption. Respondent is presumed to have registered and used the disputed domain name in bad faith.
The Panel finds Policy ¶4(a)(iii) satisfied.
Having established all three elements required under the ICANN Policy, the Panel concludes relief shall be GRANTED.
Accordingly, it is Ordered the <liveperosn.com> domain name be TRANSFERRED from Respondent to Complainant.
Houston Putnam Lowry, Chartered Arbitrator, Panelist
Dated: Tuesday, November 18, 2014
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