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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Network Solutions, LLC, eNom, Inc. v. Dan Guyes

Case No. D2008-1609

1. The Parties

Complainants are Network Solutions, LLC, Herndon, Virginia, United States of America and eNom, Inc., Bellevue, Washington, United States of America, represented by Rivkin Radler LLP, United States of America.

Respondent is Dan Guyes, Los Angeles, California, United States of America.

2. The Domain Name and Registrar

The disputed domain name <nameje.com> is registered with GoDaddy.com, Inc.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 21, 2008. On October 22, 2008, the Center transmitted by email to GoDaddy.com, Inc. a request for registrar verification in connection with the disputed domain name. On October 23, 2008, GoDaddy.com, Inc. transmitted by email to the Center its verification response confirming that Respondent is listed as the registrant and providing the contact details for the disputed domain name. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), 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 October 30, 2008. In accordance with the Rules, paragraph 5(a), the due date for Response was November 19, 2008. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on November 20, 2008.

The Center appointed Lynda J. Zadra-Symes as the sole panelist in this matter on December 4, 2008. 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. F actual Background

Complainants are engaged in the offering of Internet, domain name and related services. Each is an ICANN accredited domain name registrar in certain top level domain names, including the “.com” top level domain name.

Prior to October 1, 2007, Complainants engaged in negotiation and discussions to establish a joint venture designed to provide online backorder and auction services for domain name registrations, to be offered under the mark NAMEJET. In anticipation of the creation of the joint venture, Complainant eNom, Inc. registered the domain name <namejet.com> on September 11, 2007.

In addition, on September 24, 2007, Network Solutions filed an application for registration of the NAMEJET mark with the United States Patent and Trademark Office for use in connection with “…on-line auction services; online auction services featuring domain names; online auction services for businesses, consumers, domain name holders; on line proxy bidding services.” (Serial No.77-287213). The trademark registration was granted on September 2, 2008. A blog report regarding Complainants’ trademark application for NAMEJET was chosen by Domain Name Wire as one of the Top 5 Domain Name News Stories of October 2007.

On October 1, 2007, Complainants created their joint venture under the name NameJet LLC. Complainants’ website located at “www.namejet.com” is the primary portal for accessing the services and goods offered by NameJet, LLC. Complainant’s Namejet Domain Name Auction Service was awarded the 2008 Name Intelligence Award by Domaininformer.com.

On October 1, 2007, the same day that Complainants’ joint venture was formalized and multiple blog entries appeared publicizing Network Solutions’ trademark application for the NAMEJET mark, Respondent registered the disputed domain name, <nameje.com>.

5. Parties’ Contentions

A. Complainant

Complainants contend that the disputed domain name is virtually identical and confusingly similar to the NAMEJET trademark, Respondent has no rights or legitimate interests in the disputed domain name and that Respondent registered and used the disputed domain name in bad faith.

B. Respondent

Respondent did not reply to Complainants’ contentions.

6. Discussion and Findings

In order to succeed in their claim, Complainants must demonstrate that all of the elements enumerated in Paragraph 4(a) of the Policy have been satisfied:

(i) the domain name in dispute is identical or confusingly similar to a trademark or service mark in which Complainants have rights; and

(ii) Respondent has no rights or legitimate interests with respect to the domain name; and

(iii) the domain name has been registered and is being used in bad faith.

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”.

A. Identical or Confusingly Similar

Complainants have demonstrated that they own valid, registered and common law trademark rights in the mark NAMEJET. Paragraph 4(a)(i) of the Policy does not require that the Complainants’ trademark be registered prior to the disputed domain name’s registration. In this case, Complainants’ application for registration of the trademark and publicity regarding the application and Complainants’ business plan preceded Respondent’s registration of the disputed domain name.

Complainants contend that the disputed domain name is virtually identical to and therefore confusingly similar to the NAMEJET trademark. Apparently, the phrase “nameje” has no inherent meaning, and has no value except as it relates to the NAMEJET mark. It is apparent that the disputed domain name is a mistyped version of Complainants’ mark, otherwise known as a “typosquat”.

Accordingly, the Panel finds that Complainants have satisfied this requirement.

B. Rights or Legitimate Interests

Respondent is not affiliated or related to Complainants in any way, nor is Respondent licensed by Complainants or otherwise authorized to use the NAMEJET trademark, the <namejet.com> domain name, or variations thereof.

Respondent does not own any trademarks that are identical or similar to the disputed domain name. Respondent has never made any bona fide offering of goods or services or any non-commercial use in connection with the disputed domain name. Through August 2008, the disputed domain name resolved to a site with links for “Domain Names”, “Daily Domain Auctions” and “premium auction and domain listings”. Consumers clicking on those links were directed to a page filled with “sponsored links” to companies offering domain name services directly competitive with those offered by Complainants’ joint venture, NameJet, LLC. Each time a consumer selected one of these links, the sponsor paid for the visitor or “hit”. A portion of that money presumably flowed directly to Respondent. Subsequently, the disputed domain name was redirected to a “parked page” supplied by the registrar of the domain name, GoDaddy, Inc., which continues to offer links for consumers to click on, and thus, presumably continues to generate income for Respondent. The operation of commercial link services designed to divert Internet users to other commercial sites by the use of confusingly similar domain names does not confer a right to or legitimate interest in a domain name.

Respondent’s registration and use of Complainant’s trademark to direct Internet traffic to Respondent’s website is not a bona fide offering of goods or services.

There is nothing in the record to indicate that Respondent has any rights or legitimate interests in the disputed domain name.

The Panel finds that Respondent has no rights or legitimate interests with regard to the disputed domain name.

C. Registered and Used in Bad Faith

Paragraph 4(b) of the Policy states circumstances which, if found, shall be evidence of the registration and use of the domain name in bad faith:

(i) circumstances indicating that Respondent has registered or acquired the domain name primarily for the purpose of selling, renting or otherwise transferring the domain name registration to the Complainant who is the owner of the trademark or service mark or to a competitor of the Complainant, for valuable consideration in excess of the documented out-of-pocket costs directly related to the domain name; or

(ii) Respondent has registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that Respondent has engaged in a pattern of such conduct; or

(iii) Respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or

(iv) by using the domain name, Respondent has intentionally attempted to attract, for commercial gain, Internet users to Respondent’s website or other on-line location, by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation or endorsement of Respondent’s website or location of a product or service on Respondent’s website or location.

Respondent registered the disputed domain name on the same day that several blog entries publicized Network Solutions’ trademark registration application. The disputed domain name is unconnected to any legitimate business interest that Respondent might have, and only one letter off from Complainant’s NAMEJET mark. On July 17, 2008, Complainants sent a cease and desist letter to Respondent demanding transfer of the disputed domain name. Respondent replied with a demand that “You will pay me $3,000 today or I will go public with my information you God Dam piece of s”. This is evidence that Respondent had no bona fide reason to acquire the disputed domain name other than to sell it to Complainants in excess of his documented out-of-pocket costs. In addition, it is apparent from the record that Respondent intended to cause disruption to Complainants’ business and to misleadingly divert consumers for commercial gain, as evidenced by the fact that Respondent’s only use of the disputed domain name was in association with websites containing links for sites offering services competitive to those of Complainants.

The Panel finds that Respondent has registered and used the disputed domain name in bad faith.

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 domain name, <nameje.com> be transferred to Complainants.


Lynda J. Zadra-Symes
Sole Panelist

Dated: December 18, 2008

 

Источник информации: https://internet-law.ru/intlaw/udrp/2008/d2008-1609.html

 

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