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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

The Benevolink Corporation v. Texas International Property Associates

Case No. D2007-0404

 

1. The Parties

Complainant is The Benevolink Corporation, Mr. Darren Ryan, Creative Services Director, Atlanta, Georgia, United States of America, represented by The Gigalaw Firm, Douglas M. Isenberg, Attorney at Law, LLC, United States of America.

The Respondent is Texas International Property Associates, Dallas, Texas, United States of America.

2. The Domain Name and Registrar

The disputed domain name <benovolink.com> is registered with Compana LLC.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 15, 2007. On March 16, 2007, the Center transmitted by email to Compana LLC a request for registrar verification in connection with the domain name at issue. On March 25, 2007, Compana LLC transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the registrant contact details. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).

In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified Respondent of the Complaint, and the proceedings commenced on March 26, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was April 15, 2007. Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on April 17, 2007.

The Center appointed Sandra J. Franklin as the sole panelist in this matter on May 1, 2007. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.

 

4. Factual Background

Complainant Benevolink Corporation operates a program known as “Benevolink”, which matches consumers with charities through shopping. Complainant owns the marks BENEVOLINK and THEMARKETPLACE@BENEVOLINK, both registered with the U.S. Patent and Trademark Office (USPTO), with use dating back to September 2, 2003. Complainant owns the domain name <benevolink.com>. On November 15, 2005, Respondent registered the domain name <benovolink.com>, an obvious misspelling of Complainant’s mark.

 

5. Parties’ Contentions

A. Complainant makes the following assertions:

1. Respondent’s <benovolink.com> domain name is confusingly similar to Complainant’s BENEVOLINK mark.

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

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

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

6. Discussion and Findings

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, WIPO Case No. D2000-0009 (February 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.

A. Identical or Confusingly Similar

As Complainant holds trademark registrations for the BENEVOLINK mark with the USPTO, Complainant has sufficiently demonstrated its rights in the mark for purposes of Policy, paragraph 4(a)(i). See Metropolitan Life Ins. Co. v. Bonds, FA 873143 (Nat. Arb. Forum February 16, 2007) (finding that a trademark registration adequately demonstrates a complainant’s rights in a mark under Policy, paragraph 4(a)(i)).

The <benovolink.com> domain name contains a misspelled variation of Complainant’s BENEVOLINK mark and the generic-top level domain (“gTLD”) “.com.” In Valpak Direct Marketing Systems, Inc. v. Manila Industries, Inc., WIPO Case No. D2006-0714 (August 17, 2006), the panel found that the <vallpak.com> domain name, a common misspelling of the complainant’s VALPAK mark, was confusingly similar to the mark under Policy, paragraph 4(a)(i). The Panel finds that Respondent has failed to sufficiently differentiate the disputed domain name from the mark. As a result, the Panel finds the disputed domain name to be confusingly similar to the mark under Policy, paragraph 4(a)(i).

The Panel concludes that Complainant has satisfied Policy, paragraph 4(a)(i).

B. Rights or Legitimate Interests

Complainant alleges that Respondent has no rights or legitimate interests in the <benovolink.com> domain name. Complainant has the intitial burden of proof in asserting that Respondent has no rights or legitimate interests in the domain names. Once Complainant makes a prima facie case under Policy, paragraph 4(a)(ii), the burden then shifts to Respondent to show that it does have rights or legitimate interests. See Do The Hustle, LLC v. Tropic Web, WIPO Case No. D2000-0624 (August 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”).

Respondent’s failure to answer the Complaint has been found by some panels to raise a presumption that Respondent has no rights or legitimate interests in the disputed domain names. See Bank of Am. Corp. v. McCall, FA 135012 (Nat. Arb. Forum December 31, 2002) (“Respondent’s failure to respond not only results in its failure to meet its burden, but also will be viewed as evidence itself that Respondent lacks rights and legitimate interests in the disputed domain name.”)

Respondent is using the <benovolink.com> domain name, which is confusingly similar to Complainant’s mark, to divert Internet users to a website that displays sponsored links to third-party websites, including services that Complainant represents compete with its own. Such use of the disputed domain names does not constitute a bona fide offering of goods and services pursuant to Policy, paragraph 4(c)(i), or a legitmate noncommercial or fair use of the domain names pursuant to Policy, paragraph 4(c)(iii). See Ultimate Elecs., Inc. v. Nichols, FA 195683 (Nat. Arb. Forum October 27, 2003) (finding that the respondent’s “use of the domain name (and Complainant’s mark) to sell products in competition with Complainant demonstrates neither a bona fide offering of goods or services nor a legitimate noncommercial or fair use of the name”).

Respondent’s Whois information, as well as other information in the record, does not suggest that Respondent is commonly known by the <benovolink.com> domain name. Therefore, the Panel finds that Respondent is not commonly known by the disputed domain names under Policy, paragraph 4(c)(ii). See Gallup, Inc. v. Amish Country Store, FA 96209 (Nat. Arb. Forum January 23, 2001) (finding that the 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 November 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.”).

The Panel finds that Complainant has satisfied Policy, paragraph 4(a)(ii).

C. Registered and Used in Bad Faith

Respondent is using the disputed domain name to manage a web page displaying links to the websites of Complainant’s claimed competitors. The Panel infers that Respondent receives click-through fees for each consumer it diverts to these websites. The panel in Allianz of Am. Corp. v. Bond, FA 680624 (Nat. Arb. Forum June 2, 2006) found bad faith registration and use under Policy, paragraph 4(b)(iv) where the respondent was diverting Internet users searching for the complainant to its own website and likely profiting from click-through fees. The Panel finds that Respondent has registered and is using the <benovolink.com> domain name to take advantage of the confusing similarity between the disputed domain name and Complainant’s mark, which constitutes bad faith under Policy, paragraph 4(b)(iv).

The Panel also finds that Respondent has likely registered and used the <benovolink.com> domain name for the primary purpose of disrupting Complainant’s business in violation of Policy, paragraph 4(b)(iii). See Persohn v. Lim, FA 874447 (Nat. Arb. Forum February 19, 2007) (finding bad faith registration and use pursuant to Policy, paragraph 4(b)(iii) where a respondent used the disputed domain name to operate a commercial search engine with links to the complainant’s competitors).

Furthermore, Respondent’s confusingly similar <benovolink.com> domain name contains a common misspelling of Complainant’s BENEVOLINK mark, which provides evidence of typosquatting. Typosquatting is an additional factor in the consideration of bad faith registration and use under Policy, paragraph 4(a)(iii). See Microsoft Corp. v. Domain Registration Philippines, FA 877979 (Nat. Arb. Forum February 20, 2007) (finding bad faith registration and use of the <microssoft.com> domain name as it merely misspelled the complainant’s MICROSOFT mark).

The Panel concludes that Complainant has satisfied Policy, paragraph 4(a)(iii).

7. Decision

For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the <benovolink.com> domain name be transferred to the Complainant.

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Sandra J. Franklin
Sole Panelist

Dated: May 8, 2007