DatingDirect.com Limited v. domain on dispute
Claim Number: FA0603000671006
Complainant is DatingDirect.com Limited (“Complainant”), represented by Daniel Greenberg, of Adlex Solicitors, 76A Belsize Lane, London NW3 5BJ, United Kingdom. Respondent is domain on dispute (“Respondent”).
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <datingdirekt.com>, registered with Key-Systems Gmbh.
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.
Honorable Karl V. Fink (Ret.), as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on March 31, 2006; the National Arbitration Forum received a hard copy of the Complaint on April 3, 2006.
On April 7, 2006, Key-Systems Gmbh informed the National Arbitration Forum by email that Respondent’s registration of the <datingdirekt.com> domain name had expired or been deleted by the registrant during the course of this dispute. Complainant has renewed or restored the domain name under the same commercial terms as Respondent. Accordingly, the <datingdirekt.com> domain name has been placed in registrar hold and registrar lock status, the WHOIS contact information for Respondent has been removed, and the WHOIS entry indicates that the domain name is subject to dispute pursuant to EDDP ¶ 3.7.5.7. Key-Systems Gmbh has verified that Respondent is bound by the Key-Systems Gmbh 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 13, 2006, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of May 3, 2006 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@datingdirekt.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 9, 2006, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Honorable Karl V. Fink (Ret.) 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 <datingdirekt.com> domain name is confusingly similar to Complainant’s DATINGDIRECT.COM mark.
2. Respondent does not have any rights or legitimate interests in the <datingdirekt.com> domain name.
3. Respondent registered and used the <datingdirekt.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, DatingDirect.com Limited, has operated an online dating service continuously since 1999 at the <datingdirect.com> domain name. Complainant has registered the DATINGDIRECT.COM mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 2,232,175 issued May 11, 2000). Complainant is commonly referred to as “Dating Direct” and “Dating Direct.com” and has spent over $20.6 million since 1999 on marketing its brand names. Complainant’s dating service had over 3,400,000 subscribers in October 2005
Respondent registered the <datingdirekt.com> domain name on May 5, 2003. Internet users who access this domain name were originally directed to a website displaying a message that the domain name was for sale. On March 27, 2006, Respondent requested the deletion of the domain name and removed its website. Currently, the <datingdirekt.com> domain name does not resolve to an active website
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 DATINGDIRECT.COM mark, pursuant to Policy ¶ 4(a)(i), through registration of 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 Wal-Mart Stores, Inc. v. Stork, D2000-0628 (WIPO Aug. 11, 2000) (finding the complainant has rights to the name when the mark is registered in a country even if the complainant has never traded in that country).
Respondent’s <datingdirekt.com> domain name is confusingly similar to Complainant’s DATINGDIRECT.COM mark in that it incorporates the mark and substitutes the letter “c” for the letter “k.” Merely replacing one letter in Complainant’s mark with another does not adequately distinguish Respondent’s domain name from the mark. 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 Toronto-Dominion Bank v. Karpachev, D2000-1571 (WIPO Jan. 15, 2001) (finding that the domain names <tdwatergouse.com> and <dwaterhouse.com> are virtually identical to the complainant’s TD WATERHOUSE name and mark).
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Under Policy ¶ 4(a)(ii), once Complainant has made a prima facie case that Respondent does not have rights or legitimate interests in the disputed domain name, the burden shifts to Respondent to prove that it does have rights or legitimate interests. The Panel finds that Complainant has made a prima facie case, and the burden shifts to Respondent as a result. Therefore, the Panel will examine the evidence to determine if Respondent has rights or legitimate interests under Policy ¶ 4(a)(ii). See 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).
Respondent originally used the disputed domain name, which
is confusingly similar to Complainant’s mark, to redirect Internet users to a
website containing only the message that the domain name was for sale. As of March 27, 2006, Respondent’s domain
name no longer resolves to an active website.
Neither Respondent’s original use of the domain name, nor its later
nonuse of the domain name, is 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 Mothers Against Drunk Driving v. Hyun-Jun Shin, FA 154098
(Nat. Arb. Forum May 27, 2003) (holding that under the circumstances, the
respondent’s apparent willingness to dispose of its rights in the disputed domain
name suggested that it lacked rights or legitimate interests in the domain
name); see also See Cf. J. Paul
Getty Trust v. Domain 4 Sale & Co., FA 95262 (Nat. Arb. Forum Sept. 7,
2000) (finding rights or legitimate interests do not exist when one has made no
use of the websites that are located at the domain names at issue, other than
to sell the domain names for profit).
In addition, there is no evidence in the record, including the WHOIS information for the disputed domain name, showing that Respondent is commonly known by the <datingdirekt.com> domain name. Complainant asserts that Respondent has no association with Complainant, and that Complainant has never authorized Respondent to use any of its marks. Therefore, Respondent has not established rights or legitimate interests in the <datingdirekt.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 a 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.”).
Respondent registered the <datingdirekt.com>
domain name, which is confusingly similar to Complainant’s DATINGDIRECT.COM
mark, but made no other use of the domain name than to generally offer it for
sale. The Panel finds that Respondent
registered the disputed domain name primarily for the purpose of offering it
for sale. 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).”); see
also Am. Anti-Vivisection Soc’y v. “Infa dot Net” Web Serv., FA 95685 (Nat. Arb. Forum Nov. 6, 2000)
(finding that “general offers to sell the domain name, even if no certain price
is demanded, are evidence of bad faith”).
Because the disputed
domain name incorporates Complainant’s mark along with a simple spelling error,
the Panel finds that Respondent is taking advantage of Internet users who
mistype the domain name when they try to access Complainant’s website. Respondent’s registration of the disputed
domain name amounts to typosquatting, which is further evidence of bad
faith registration and use pursuant to Policy ¶ 4(b)(iv). See Nat’l
Ass’n of Prof’l Baseball League, Inc. v. Zuccarini, D2002-1011 (WIPO Jan.
21, 2003) (“Typosquatting … is the intentional misspelling of words with [the]
intent to intercept and siphon off traffic from its intended destination, by
preying on Internauts who make common typing errors. Typosquatting is inherently parasitic and of itself evidence of
bad faith.”); see also K.R. USA, INC.
v. SO SO DOMAINS, FA 180624 (Nat. Arb. Forum Sept. 18, 2003) (finding that the respondent’s registration
and use of the <philadelphiaenquirer.com> and
<tallahassedemocrat.com> domain names capitalized on the typographical
error of Internet users seeking the complainant's THE PHILADELPHIA
INQUIRER and TALLAHASSEE DEMOCRAT marks, evincing typosquatting and bad faith
pursuant to Policy ¶ 4(a)(iii)).
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 <datingdirekt.com> domain name be TRANSFERRED from Respondent to Complainant.
Honorable Karl V. Fink (Ret.), Panelist
Dated: May 19, 2006
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