Intelius, Inc. v. NameBGone c/o NB Gone
Claim Number: FA0609000791747
Complainant is Intelius, Inc. (“Complainant”), represented by Stephanie J. Simmons, of Lane Powell PC, 1420 Fifth Avenue, Suite 4100, Seattle, WA 98101. Respondent is NameBGone c/o NB Gone (“Respondent”), 2100 N Fed Hwy, Hollywood, FL 33020.
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <intleius.com>, registered with Enom, Inc.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on September 7, 2006; the National Arbitration Forum received a hard copy of the Complaint on September 11, 2006.
On September 8, 2006, Enom, Inc. confirmed by e-mail to the National Arbitration Forum that the <intleius.com> domain name is registered with Enom, Inc. and that Respondent is the current registrant of the name. Enom, Inc. has verified that Respondent is bound by the Enom, 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 September 14, 2006, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of October 4, 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@intleius.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On October 11, 2006, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Sandra J. Franklin 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 <intleius.com> domain name is confusingly similar to Complainant’s INTELIUS mark.
2. Respondent does not have any rights or legitimate interests in the <intleius.com> domain name.
3. Respondent registered and used the <intleius.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Intelius, Inc., is an online service provider
to businesses and individuals who wish to perform employment and tenant
screening, background checks, credit checks, and to search for other publicly
available records and data about people, properties and businesses. Complainant offers these services at its
<intelius.com> domain name, and has used this domain and its
corresponding INTELIUS mark, which was first used on January 9, 2003 and has
been continuously used in commerce since February 26, 2003. Complainant holds a registration with the
United States Patent and Trademark Office (“USPTO”) for the INTELIUS mark (Reg.
No. 3,096,294 issued May 23, 2006, filed January 9, 2003).
Respondent registered the <intleius.com> domain name on March 29, 2006. Respondent’s disputed domain name resolves to a website that displays links to third-party websites some of which are in direct competition with Complainant, as well as unauthorized links to Complainant’s 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.
The Panel finds that Complainant’s registration with the USPTO sufficiently establishes Complainant’s rights in the INTELIUS mark. 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 Janus Int’l Holding Co. v. Rademacher, D2002-0201 (WIPO Mar. 5, 2002) ("Panel decisions have held that registration of a mark is prima facie evidence of validity, which creates a rebuttable presumption that the mark is inherently distinctive.").
Furthermore, the Panel finds, in accordance with previous decisions, that Complainant’s rights in the INTELIUS mark date back to the time of the filing of its registration with the USPTO, which in the instant matter is January 9, 2003. See Planetary Soc’y v. Rosillo, D2001-1228 (WIPO Feb. 12, 2002) (holding that the effective date of Complainant’s trademark rights date back to the application’s filing date); see also J. C. Hall Co. v. Hallmark Cards, Inc., 340 F.2d 960, 144 U.S.P.Q. 435 (C.C.P.A. 1965) (registration on the Principal Register is prima facie proof of continual use of the mark, dating back to the filing date of the application for registration).
Respondent’s <intleius.com> domain name is confusingly similar to Complainant’s INTELIUS mark as it merely transposes the letters “e” and “l” in Complainant’s mark. In Google Inc. v. Jon G., FA 106084 (Nat. Arb. Forum Apr. 26, 2002), the panel found the <googel.com> domain name to be confusingly similar to the complainant’s GOOGLE mark and further noted that the transposition of two letters did not create a distinct mark capable of overcoming a claim of confusing similarity, as the result reflected a very probable typographical error. See Pier 1 Imps., Inc. v. Success Work, D2001-0419 (WIPO May 16, 2001) (finding that the domain name <peir1.com> is confusingly similar to the complainant's PIER 1 mark). Accordingly, the Panel finds that Respondent’s disputed domain name is confusingly similar to Complainant’s mark under Policy ¶ 4(a)(i).
The Panel finds that Policy ¶ 4(a)(i) has been
satisfied.
Complainant must initially establish that Respondent lacks rights or legitimate interests in the <intleius.com> domain name. However, once Complainant demonstrates a prima facie case, the burden of proof shifts, and Respondent must prove it has rights or legitimate interests in the <intleius.com> domain name. See Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (holding that once the complainant asserts that the respondent has no rights or legitimate interests with respect to the domain, the burden shifts to the respondent to provide “concrete evidence that it has rights to or legitimate interests in the domain name at issue”); 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).”).
Complainant asserts that Respondent is not authorized to use Complainant’s INTELIUS mark and that Respondent is not associated with Complainant in any way. Furthermore, Respondent’s WHOIS information does not suggest that Respondent is commonly known by the <intleius.com> domain name. In Gallup, Inc. v. Amish Country Store, FA 96209 (Nat. Arb. Forum Jan. 23, 2001), the panel found that the respondent did not have rights in a domain name where the respondent was not known by the mark. See Compagnie de Saint Gobain v. Com-Union Corp., D2000-0020 (WIPO Mar. 14, 2000) (finding no rights or legitimate interest where the respondent was not commonly known by the mark and never applied for a license or permission from the complainant to use the trademarked name). The Panel thus finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).
The evidence on record indicates that Respondent is using the <intleius.com> domain name to operate a website that displays hyperlinks to third-party websites, presumably for Respondent’s commercial benefit through the earning of click-through fees. The Panel finds that such use is neither a bona fide offering of goods or services under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See WeddingChannel.com Inc. v. Vasiliev, FA 156716 (Nat. Arb. Forum June 12, 2003) (finding that the respondent’s use of the disputed domain name to redirect Internet users to websites unrelated to the complainant’s mark, websites where the respondent presumably receives a referral fee for each misdirected Internet user, was not a bona fide offering of goods or services as contemplated by the Policy); see also Disney Enters., Inc. v. Dot Stop, FA 145227 (Nat. Arb. Forum Mar. 17, 2003) (finding that the respondent’s diversionary use of the complainant’s mark to attract Internet users to its own website, which contained a series of hyperlinks to unrelated websites, was neither a bona fide offering of goods or services nor a legitimate noncommercial or fair use of the disputed domain names).
Additionally, the Panel finds that Respondent’s lack of rights or legitimate interests in the disputed domain name is evidenced by the <intleius.com> domain name itself, as the disputed domain name is a typosquatted version of Complainant’s mark. See Encyclopaedia Britannica, Inc. v. Zuccarini, D2000-0330 (WIPO June 7, 2000) (finding that fair use does not apply where the domain names are misspellings of the complainant's mark); see also LTD Commodities LLC v. Party Night, Inc., FA 165155 (Nat. Arb. Forum Aug. 14, 2003) (finding that the <ltdcommadities.com>, <ltdcommmodities.com>, and <ltdcommodaties.com> domain names were intentional misspellings of Complainant's LTD COMMODITIES mark and this “‘typosquatting’ is evidence that Respondent lacks rights or legitimate interests in the disputed domain names”).
The Panel finds that Policy ¶ 4(a)(ii) has been
satisfied.
Respondent is using the <intleius.com> domain name to divert Internet users to a website that displays links to related and unrelated third party websites, as well as displaying Complainant’s website without authorization. The Panel finds that displaying websites that offers services that compete with Complainant constitutes disruption and is evidence of bad faith registration and use under Policy ¶ 4(b)(iii). See EBAY, Inc. v. MEOdesigns, D2000-1368 (Dec. 15, 2000) (finding that the respondent registered and used the domain name <eebay.com> in bad faith where the respondent has used the domain name to promote competing auction sites); see also EthnicGrocer.com, Inc. v. Latingrocer.com, FA 94384 (Nat. Arb. Forum July 7, 2000) (finding bad faith where the respondent’s sites pass users through to the respondent’s competing business).
The Panel finds that Respondent is using the disputed domain
name for its own commercial benefit through the earning of click-through fees,
and that such use constitutes bad faith registration and use under Policy ¶
4(b)(iv). The Panel further finds that
Respondent’s disputed domain name and corresponding website is capable of
creating a likelihood of confusion as to the source and affiliation of
Complainant with the <intleius.com> domain name. See Kmart v. Khan, FA 127708 (Nat.
Arb. Forum Nov. 22, 2002) (finding that if the respondent profits from its
diversionary use of the complainant's mark when the domain name resolves to
commercial websites and the respondent fails to contest the complaint, it may
be concluded that the respondent is using the domain name in bad faith pursuant
to Policy ¶ 4(b)(iv)); see also Identigene, Inc. v. Genetest Labs.,
D2000-1100 (WIPO Nov. 30, 2000) (finding bad faith where the respondent's use
of the domain name at issue to resolve to a website where similar services are
offered to Internet users is likely to confuse the user into believing that the
complainant is the source of or is sponsoring the services offered at the site).
Respondent’s bad faith registration and use is further evidenced by the typosquatted nature of the disputed domain name itself. In Zone Labs, Inc. v. Zuccarini, FA 190613 (Nat. Arb. Forum Oct. 15, 2003), the panel found that the respondent’s registration and use of the <zonelarm.com> domain name that capitalized on the typographical error of an Internet user was considered typosquatting, which itself is evidence of bad faith registration and use pursuant to Policy ¶ 4(a)(iii). See 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 thus finds Respondent’s registration of a common misspelling of Complainant’s mark is itself evidence of bad faith registration and use under 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 <intleius.com> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: October 25, 2006
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page
National
Arbitration Forum