ULIONA LIMITED v. Ettouil Oualid
Claim Number: FA2302002032922
Complainant is ULIONA LIMITED (“Complainant”), represented by Nadezhda Minakova, United States of America. Respondent is Ettouil Oualid (“Respondent”), Morocco.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <svfromnet.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 Forum electronically on February 22, 2023; Forum received payment on February 22, 2023.
On February 22, 2023, NameCheap, Inc. confirmed by e-mail to Forum that the <svfromnet.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 February 27, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 20, 2023 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@svfromnet.com. Also on February 27, 2023, 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, Forum transmitted to the parties a Notification of Respondent Default.
On March 27, 2023 pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Dawn Osborne as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that 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, 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 is the owner of the SAVEFROM mark, registered, inter alia, in the United States for video related services with first use recorded as 2008. It operates a website at SAVEFROM.net.
The Domain Name registered in 2022 is confusingly similar to the Complainant’s trade mark, omitting only a letter ‘a’ and adding only the generic word ‘net’ and the gTLD .com which do not prevent said confusing similarity.
The Respondent has no rights or legitimate interests in the Domain Name, is not commonly known by it and is not authorised by the Complainant.
The Domain Name has been used for a site offering competing services to that of the Complainant. This does not constitute a bona fide offering of goods or services or a legitimate non commercial or fair use. It is registration and use in bad faith diverting Internet users for commercial gain and disrupting the Complainant’s business taking advantage of the goodwill of the Complainant’s mark. The Respondent has been the subject of adverse decisions under the Policy in previous cases targeting the Complainant.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Complainant is the owner of the SAVEFROM mark, registered, inter alia, in the United States for video related services with first use recorded as 2008. It operates a web site at savefrom.net.
The Domain Name registered in 2022 has been used for competing services. The Respondent has been the subject of adverse decisions under the Policy for other cases involving registration of the Complainant’s mark in domain names.
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 SAVEFROM mark (which is registered, inter alia in USA for video related services with first use recorded as 2008) merely omitting the letter ‘a’ and adding the generic word ‘net’ and the gTLD .com.
The Panel agrees that the misspelling of the Complainant’s mark, specifically, the omission of the letter ‘a’ does not distinguish the Domain Name from the Complainant's trade mark pursuant to the Policy. See Twitch Interactive Inc. v Zhang qin, FA 1626511 (Forum Aug 4, 2015).
The addition of a generic word to a mark in a domain name does not serve to prevent the confusingly similarity between that mark and that domain name. See Abbott Laboratories v Miles White, FA 1646590 (Forum Dec 10, 2015) (holding that the addition of generic terms do not adequately distinguish a disputed domain name from complainant’s mark under Policy 4 (a) (i).) Accordingly the Panel agrees that the addition of the generic word ‘net’ to the Complainant's mark does not distinguish the Domain Name from the Complainant's trade mark pursuant to the Policy.
The gTLD .com does not serve to distinguish the Domain Name from the Complainant’s 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 for the purpose of the Policy to a mark in which the Complainant has rights.
As such the Panel holds that Paragraph 4 (a) (i) of the Policy has been satisfied.
Rights or Legitimate Interests
The Complainant has not authorised the use of its mark. 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 September 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).
It is clear from the evidence that the Respondent has pointed the site attached to the Domain Name to a site offering competing services which are not connected with the Complainant. The usage in the Domain Name of a sign confusingly similar to the Complainant’s mark which has a reputation for video related services in relation to similar services not connected with the Complainant is not fair, indeed the Complainant’s mark is used spelled correctly on the Respondent’s site deliberately taking advantage of the Complainant’s goodwill to confuse. As such it cannot amount to the bona fide offering of services or a non commercial legitimate or fair use. (See Am. Intl Group Inc v Benjamin FA 944242 (Forum May 11, 2007) finding that the Respondent's use of a confusingly similar domain name to advertise real estate services which competed with the Complainant's business did not constitute a bona fide use of goods and services.)
The Domain Name also seems to be a typosquatting registration designed to catch Internet users that make an error. 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).”).
The Respondent has not answered this Complaint or rebutted the prima facie case evidenced by the Complainant as set out herein.
As such the Panelist finds that the Respondent does not have rights or a legitimate interest in the Domain Name and that the Complainant has satisfied the second limb of the Policy.
Registration and Use in Bad Faith
The use of the Complainant’s SAVEFROM mark spelled correctly on the web site attached to the Domain Name shows the Respondent is aware of the Complainant and its rights, business and services.
In the opinion of the panelist the use made of the Domain Name in relation to the site is confusing and disruptive in that visitors to the site might reasonably believe it is connected to or approved by the Complainant as it offers competing services under a domain name containing a sign confusingly similar to the Complainant’s mark and uses the Complainant’s mark spelled correctly in the text of the web site attached to it. Accordingly, the Panel holds that the Respondent has intentionally attempted to attract for commercial gain Internet users to his website by creating likelihood of confusion with the Complainant's trade mark 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 Allianz of AM. Corp v Bond, FA 680624 (Forum June 2, 2006)(finding bad faith registration and use where the respondent was diverting Internet users searching for the complainant to its own website).
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. 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 inferrence [sic], Respondent’s actions evidence bad faith registration of the disputed domain name.”).
The Respondent has been subject to adverse decisions under the Policy involving the Complainant’s mark demonstrating a pattern of conduct under Policy 4 (b)(ii) and confirms knowledge of the Complainant, its rights, business and services. See The Toronto-Dominion Bank v. Ryan G Foo / PPA Media Services / Jinesh Shah / Whois Privacy Corp. / Domain Administratory / Fundacion Private Whois / Domain Admin / Whois Privacy Corp, FA1408001576648 (Forum Jan. 12, 2015) (“The Panel determines that Respondent’s documented history of adverse UDRP rulings, as well as Respondent’s multiple registrations relating to Complainant’s marks, are independently sufficient to constitute a pattern as described by Policy ¶ 4(b)(ii).
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 para 4(b)(ii),(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 <svfromnet.com> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: March 28, 2023
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