national arbitration forum

DECISION

Claim Number: FA0606000726846

PARTIES

Complainant is Register.com, Inc. (“Complainant”), represented by Brett E. Lewis, of Lewis & Hand, LLP, 45 Main Street, Suite 818, Brooklyn, NY 11201. Respondent is Maria R (“Respondent”), Avenue Foch, Dijon, FR 21000.

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <registter.com>, registered with Go Daddy Software, Inc.

PANEL

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.

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum electronically on June 5, 2006; the National Arbitration Forum received a hard copy of the Complaint on June 8, 2006.

On June 6, 2006, Go Daddy Software, Inc. confirmed by e-mail to the National Arbitration Forum that the <registter.com> domain name is registered with Go Daddy Software, Inc. and that Respondent is the current registrant of the name. Go Daddy Software, Inc. has verified that Respondent is bound by the Go Daddy Software, 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 June 12, 2006, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of July 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@registter.com by e-mail.

Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.

On July 11, 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.

RELIEF SOUGHT

Complainant requests that the domain name be transferred from Respondent to Complainant.

PARTIES' CONTENTIONS

A. Complainant makes the following assertions:

1. Respondent’s <registter.com> domain name is confusingly similar to Complainant’s REGISTER.COM mark.

2. Respondent does not have any rights or legitimate interests in the <registter.com> domain name.

3. Respondent registered and used the <registter.com> domain name in bad faith.

B. Respondent failed to submit a Response in this proceeding.

FINDINGS

Complainant, Register.com, Inc., is a leading ICANN-accredited domain name registrar. In connection with its domain name registration services, Complainant holds numerous trademark registrations with the United States Patent and Trademark Office (“USPTO”), including the REGISTER.COM mark (Reg. No. 2,664,967 issued Dec. 24, 2002). Complainant utilizes the widely recognized <register.com> domain name to provide its services over the Internet and manage an affiliate program in which Internet users can earn financial payments in exchange for customer referrals.

Respondent registered the <registter.com> domain name on December 29, 2002. Respondent previously used the disputed domain name to redirect Internet users to Complainant’s website as a part of Complainant’s affiliate program. Upon discovery of Respondent’s use of the disputed domain name, Complainant suspended Respondent’s affiliate account and requested a transfer of the disputed domain name via email. At the time of the Complaint, Respondent was using the disputed domain name to redirect Internet users to a third party gambling website.

The Complaint refers to and encloses copies of correspondence conducted between the involved parties.

DISCUSSION

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.

Identical and/or Confusingly Similar

Complainant has established rights in the REGISTER.COM mark through registration 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 Vivendi Universal Games v. XBNetVentures Inc., FA 198803 (Nat. Arb. Forum Nov. 11, 2003) (“Complainant's federal trademark registrations establish Complainant's rights in the BLIZZARD mark.”).

Complainant asserts that the <registter.com> domain name is confusingly similar to its REGISTER.COM mark. The disputed domain name merely misspells Complainant’s mark by adding the letter “t.” The Panel finds the disputed domain name that contains a simple misspelling of Complainant’s REGISTER.COM mark to be confusingly similar to Complainant’s mark pursuant to Policy ¶ 4(a)(i). See Victoria’s Secret v. Zuccarini, FA 95762 (Nat. Arb. Forum Nov. 18, 2000) (finding that, by misspelling words and adding letters to words, a respondent does not create a distinct mark but nevertheless renders the domain name confusingly similar to the complainant’s marks); see also Hewlett-Packard Co. v. Zuccarini, FA 94454 (Nat. Arb. Forum May 30, 2000) (finding the domain name <hewlitpackard.com> to be identical or confusingly similar to the complainant’s HEWLETT-PACKARD mark).

The Panel finds that Policy ¶ 4(a)(i) has been satisfied.

Rights or Legitimate Interests

Complainant contends that Respondent does not have rights or legitimate interests in the <registter.com> domain name. Complainant has the initial burden of proof in establishing that Respondent lacks rights and legitimate interests in the disputed domain name. Once Complainant makes a prima facie case in support of its allegations, the burden then rests with Respondent to prove it does have rights and legitimate interests pursuant to Policy ¶ 4(a)(ii). 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 G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum Oct. 1, 2002) (“Because Complainant’s Submission constitutes a prima facie case under the Policy, the burden effectively shifts to Respondent. Respondent’s failure to respond means that Respondent has not presented any circumstances that would promote its rights or legitimate interests in the subject domain name under Policy ¶ 4(a)(ii).”).

Respondent’s failure to respond to the Complaint creates a presumption that Respondent lacks rights or legitimate interests in the <registter.com> domain name. See Parfums Christian Dior v. QTR Corp., D2000-0023 (WIPO Mar. 9, 2000) (finding that by not submitting a response, the respondent has failed to invoke any circumstance which could demonstrate any rights or legitimate interests in the domain name); see also Am. Online, Inc. v. AOL Int'l, D2000-0654 (WIPO Aug. 21, 2000) (finding no rights or legitimate interests where the respondent fails to respond).

Respondent’s <registter.com> domain name previously resolved to Complainant’s website as a part of Complainant’s affiliate program from which Respondent collected referral fees through the unauthorized participation in Complainant’s affiliate program. The Panel finds that the use of a confusingly similar domain name to redirect Internet users to Complainant’s website in connection with an affiliate program is neither a bona fide offering of goods or services Policy ¶ 4(c)(i) nor a legitimate noncommercial use Policy ¶ 4(c)(iii). See Sports Auth. Mich., Inc. v. Domhold Co., FA 135011 (Nat. Arb. Forum Jan. 9, 2003) (finding that registering a domain name which differs by one letter from the complainant’s commercial website, and using that domain name to redirect Internet consumers to the complainant’s website as a part of the complainant’s affiliates program is not a bona fide offering of goods or services nor a noncommercial use of the domain name); see also Canadian Tire Corp. v. domain adm’r no.valid.email@worldnic.net 1111111111, D2003-0232 (WIPO May 22, 2003) (finding the respondent lacked rights and legitimate interests in the <wwwcanadiantire.com> domain name where it used the domain name as a part of the complainant’s affiliate program in exchange for specified commissions).

Furthermore, there is nothing in the record to reflect that Respondent is commonly known by the <registter.com> domain name. Accordingly, the Panel finds that Respondent is not commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii). See Am. W. Airlines, Inc. v. Paik, FA 206396 (Nat. Arb. Forum Dec. 22, 2003) (“Respondent has registered the domain name under the name ‘Ilyoup Paik a/k/a David Sanders.’ Given the WHOIS domain name registration information, Respondent is not commonly known by the [<awvacations.com>] domain name.”); see also Gallup, Inc. v. Amish Country Store, FA 96209 (Nat. Arb. Forum Jan. 23, 2001) (finding that the respondent does not have rights in a domain name when the respondent is not known by the mark).

The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.

Registration and Use in Bad Faith

Respondent originally used the confusingly similar domain name to redirect Internet users to Complainant’s website as a part of Complainant’s affiliate program from which Respondent received commercial gain. The Panel finds that Respondent’s use of the domain name that is confusingly similar to Complainant’s mark to redirect Internet users to Complainant’s website for commercial gain from Complainant’s affiliate program evidences bad faith registration and use pursuant to Policy ¶ 4(b)(iv). See Deluxe Corp. v. Dallas Internet, FA 105216 (Nat. Arb. Forum Apr. 10, 2002) (finding the respondent registered and used the <deluxeform.com> domain name in bad faith pursuant to Policy ¶ 4(b)(iv) by redirecting its users to the complainant’s <deluxeforms.com> domain name, thus receiving a commission from the complainant through its affiliate program); see also Sports Auth. Mich., Inc. v. Internet Hosting, FA 124516 (Nat. Arb. Forum Nov. 4, 2002) (“Redirecting Internet users attempting to reach a complainant’s website in order to gain a profit off of a complainant is one example of bad faith use and registration under the Policy.”).

Furthermore, upon discovery of Respondent’s participation in its affiliate program, Complainant suspended Respondent’s affiliate account and requested the transfer of the disputed domain name. At that time, Respondent began using the disputed domain name to redirect Internet users to a third party gambling website. The Panel finds that the use of a confusingly similar domain name to redirect Internet users to a third party gambling website evidences bad faith registration and use pursuant to Policy ¶ 4(b)(iv). See Qwest Comm’ns Int’l Inc. v. Ling Shun Shing, FA 187431 (Nat. Arb. Forum Oct. 6, 2003) (“Respondent has attempted to commercially benefit from the misleading <qwestwirless.com> domain name by linking the domain name to adult oriented websites, gambling websites, and websites in competition with Complainant. Respondent’s attempt to commercially benefit from the misleading domain name is evidence of bad faith pursuant to Policy ¶ 4(b)(iv).”); see also Encyclopaedia Britannica Inc. v. Shedon.com, D2000-0753 (WIPO Sept. 6, 2000) (finding that the respondent violated Policy ¶ 4(b)(iv) by using the domain name <britannnica.com> to hyperlink to a gambling site).

Finally, the Panel finds that Respondent’s registration and use of the <registter.com> domain name constitutes typosquatting and evidences bad faith pursuant to Policy ¶ 4(a)(iii). See Zone Labs, Inc. v. Zuccarini, FA 190613 (Nat. Arb. Forum Oct. 15, 2003) (“Respondent’s registration and use of [the <zonelarm.com> domain name] that capitalizes on the typographical error of an Internet user is considered typosquatting. Typosquatting, itself is evidence of bad faith registration and use pursuant to Policy ¶ 4(a)(iii).”); see also Dermalogica, Inc. v. Domains to Develop, FA 175201 (Nat. Arb. Forum Sept. 22, 2003) (finding that the <dermatalogica.com> domain name was a “simple misspelling” of the complainant's DERMALOGICA mark which indicated typosquatting and bad faith pursuant to Policy 4 ¶ (a)(iii)).

The Panel finds that Policy ¶ 4(a)(iii) has been satisfied.

DECISION

Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.

Accordingly, it is Ordered that the <registter.com> domain name be TRANSFERRED from Respondent to Complainant.

Honorable Karl V. Fink (Ret.), Panelist

Dated: July 24, 2006