K. HOV IP, II, Inc. v. Jack Riley / pleasant travels and tours
Claim Number: FA2101001929446
Complainant is K. HOV IP, II, Inc. (“Complainant”), represented by Christian Marcelo of Perkins Coie LLP, Washington, USA. Respondent is Jack Riley / pleasant travels and tours (“Respondent”), Minnesota, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <kh0v.com> (‘the Domain Name’), registered with NameCheap, 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.
Dawn Osborne as Panelist.
Complainant submitted a Complaint to the Forum electronically on January 22, 2021; the Forum received payment on January 22, 2021.
On January 24, 2021, NameCheap, Inc. confirmed by e-mail to the Forum that the <kh0v.com> domain name is registered with NameCheap, Inc. and that Respondent is the current registrant of the name. NameCheap, Inc. has verified that Respondent is bound by the NameCheap, Inc. 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 January 26, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 16, 2021 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@kh0v.com. Also on January 26, 2021, 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 Forum transmitted to the parties a Notification of Respondent Default.
On February 22, 2021 pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Dawn Osborne as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the 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 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
The Complainant’s contentions can be summarized as follows:
The Complainant is the owner of the marks KHOV and KHOV.com, registered, inter alia, in the USA for real estate development services with first use recorded as 1997. It also owns the domain name <khov.com> registered in 1996.
The Domain Name registered in 2021 is confusingly similar to the Complainant’s marks substituting a number ‘0’ for the letter ‘o’ and in the case of the KHOV mark adding the gTLD “.com” none of which prevents the said confusing similarity.
The Respondent does not have rights or legitimate interests in the Domain Name, is not commonly known by it and is not authorized by the Complainant.
The Domain Name is a typosquatting registration which is an indication of a lack of legitimate interest or rights in a domain name.
The Domain Name does not currently point to an active site, but was used for pay per click links. The Domain Name has been used for a fraudulent e mail scheme using the Complainant’s logo and its mailing address. These uses cannot be a bona fide offering of goods or services or a legitimate noncommercial or fair use. They are registration and use in bad faith in actual knowledge of the Complainant’s rights.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Complainant is the owner of the marks KHOV and KHOV.com, registered, inter alia, in the USA for real estate development services with first use recorded as 1997. It also owns the domain name <khov.com> registered in 1996.
The Domain Name registered in 2021 has been used for a fraudulent e mail scheme and pay per click links.
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 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.
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(f), 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 set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
The Domain Name consists of a sign confusingly similar to the Complainant's KHOV and KHOV.COM mark (which are registered, inter alia, in the USA for real estate development services with first use recorded as 1997) substituting the number ‘0’ for a letter ‘o’ and in the case of the KHOV mark adding the gTLD “.com”.
The Panel agrees that visually similar misspellings of a Complainant’s mark in a domain name do not prevent confusing similarity between that domain name and the Complainant's trade mark pursuant to the Policy. See Acme Lift Company, L.L.C. v. VistaPrint Technologies Ltd, FA 1607039 (Forum Apr. 11, 2015) (stating, “Where a respondent has created a domain name in an effort to visually deceive Internet users via a simple misspelling (and when such misspellings are visually similar to the mark), a finding of confusing similarity under Policy ¶ 4(a)(i) is appropriate.”). See TripAdvisor, LLC v. Zhong Wan / Wanzhongmedia, FA 1623450 (Forum July 31, 2015) (establishing a confusing similarity between the <tripadviso4.com> domain name and the TRIPADVISOR mark, as the domain name was created by swapping the letter ‘r’ from the mark for the number ‘4’). As such substituting a number ‘0’ for a letter ‘o’ does not prevent the Domain Name being confusingly similar to the Complainant’s trade mark under the Policy.
The gTLD “.com” does not serve to distinguish the Domain Name from the Complainant’s KHOV mark. See Red Hat Inc. v. Haecke, FA 726010 (Forum July 24, 2006) (concluding that the redhat.org domain name is identical to the complainant's red hat mark because the mere addition of the gTLD was insufficient to differentiate the disputed domain name from the mark).
Accordingly, the Panel holds that the Domain Name is confusingly similar to the Complainant’s registered marks.
As such the Panel holds that Paragraph 4(a)(i) of the Policy has been satisfied.
The Complainant has not authorized the use of its marks. The Respondent has not answered this Complaint and there is no evidence or reason to suggest the Respondent is, in fact, commonly known by the Domain Name. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum Sept. 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark).
The Domain Name has been used in a fraudulent phishing attempt. This is deceptive and confusing. As such it cannot amount to the bona fide offering of goods and services or a legitimate noncommercial or fair use. See DaVita Inc. v. Cynthia Rochelo, FA 1738034 (Forum July 20, 2017) (finding that ‘Passing off in furtherance of a fraudulent scheme is not considered a bona fide offering of goods or services or legitimate noncommercial or fair use’.).
The Respondent has used the site attached to the Domain Name for pay per click links which is not a bona fide offering of goods and services or a legitimate noncommercial or fair use. See Ashley Furniture Industries Inc. v. domain admin /private registrations aitken Gesellschaft, FA 1506001626253 (Forum July 29, 2015).
Typosquatting is also an indication of a lack of rights or a legitimate interests. See Chegg Inc. v. yang qijin, FA1503001610050 (Forum Apr. 23, 2015) (“Users might mistakenly reach Respondent’s resolving website by misspelling Complainant’s mark. Taking advantage of Internet users’ typographical errors, known as typosquatting, demonstrates a respondent’s lack of rights or legitimate interests under Policy ¶ 4(a)(ii).”).
As such the Panelist finds that the Respondent does not have rights or legitimate interests in the Domain Name and that the Complainant has satisfied the second limb of the Policy.
Registration and Use in Bad Faith
Impersonating a complainant by use of a complainant’s mark in a fraudulent phishing attempt is disruptive and evinces bad faith registration and use. See Microsoft Corporation v. Terrence Green/ Whois Agent/Whois Privacy Protection Service, Inc., FA 1661030 (Forum Apr. 4, 2016) (finding that respondent’s use of the disputed domain name to send fraudulent e mails constituted bad faith registration and use pursuant to Policy 4(b)(iii). ).
The Domain Name seeks to take advantage of the situation where Internet users may make a typographical error. Typosquatting itself is evidence of relevant bad faith registration and use and disruption of the Complainant’s business. See Diners Club int'l Ltd. v. Domain Admin ****** It's all in the name ******, FA 156839 (Forum June 23, 2003) (registering a domain name in the hope that Internet users will mistype the Complainant’s mark and be taken to the Respondent’s site is registration and use in bad faith). Typosquatting also indicates the Respondent had knowledge of the Complainant and its rights. See InfoSpace, Inc. v. Greiner, FA 227653 (Forum Mar. 8, 2004) (“Respondent’s domain name is a simple and popular variation of a trademark commonly used by typosquatters …Such a domain name evidences actual knowledge of the underlying mark prior to the registration of the domain name, and as Respondent failed to submit any evidence to counter this inference [sic], Respondent’s actions evidence bad faith registration of the disputed domain name.”).
The Domain Name has also been used for commercial pay per click links which is confusing and disruptive in that visitors to the site might reasonably believe it is connected to or approved by the Complainant. Accordingly, the Panel holds that the Respondent has intentionally attempted to attract for commercial gain Internet users to its website by creating a likelihood of confusion with the Complainant's trademarks as to the source, sponsorship, affiliation or endorsement of the web site or services offered on it likely to disrupt the business of the Complainant. See Health Republic Insurance Company v. Above.comLegal, FA 1506001622088 (Forum July 10, 2015) re diversion to pay per click links.
As such, the Panelist believes that the Complainant has made out its case that the Domain Name was registered and used in bad faith and has satisfied the third limb of the Policy under ¶¶ 4(b)(iii) and (iv).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <kh0v.com> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: February 22, 2021
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