DECISION

Bettermanagement.com Inc. v. URL Pro

Claim Number:  FA0408000319584

PARTIES

Complainant is Bettermanagement.com Inc. (“Complainant”), represented by Maury M. Tepper of Womble Carlyle Sandridge & Rice, PLLC, 2100 First Union Capitol Center, P.O. Box 831, Raleigh, NC, 27602.  Respondent is URL Pro (“Respondent”), P.O. Box 30521 SMB, George Town, Grand Cayman, KY 32084.

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <bettermanagment.com>, registered with Moniker Online Services, Inc.

PANEL

The undersigned certifies that she has acted independently and impartially and that to the best of her knowledge she has no known conflict in serving as Panelist in this proceeding. Hon. Carolyn Marks Johnson sits as Panelist.

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum (the "Forum") electronically August 31, 2004; the Forum received a hard copy of the Complaint September 3, 2004.

On August 31, 2004, Moniker Online Services, Inc. confirmed by e-mail to the Forum that the domain name <bettermanagment.com> is registered with Moniker Online Services, Inc. and that Respondent is the current registrant of the name. Moniker Online Services, Inc. verified that Respondent is bound by the Moniker Online Services, Inc. registration agreement and thereby has 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 7, 2004, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of September 27, 2004, 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@bettermanagment.com by e-mail.

Having received no Response from Respondent, using the same contact details and methods as were used for the Commencement Notification, the Forum transmitted to the parties a Notification of Respondent Default.

On October 4, 2004, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Hon. Carolyn Marks Johnson as Panelist.

Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the 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 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. The domain name that Respondent registered, <bettermanagment.com>, is confusingly similar to Complainant’s BETTERMANAGEMENT.COM mark.

2. Respondent has no rights to or legitimate interests in the <bettermanagment.com> domain name.

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

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

FINDINGS

Complainant operates a business in the field of business management.  Complainant offers articles, educational seminars, research and other support in the business field.  Since at least as early as April 2000, Complainant has used the BETTERMANAGEMENT.COM mark to identify the source of its business management services. 

Complainant registered the BETTERMANAGEMENT.COM mark on the Principal Register of the United States Patent and Trademark Office on November 3, 2000 in connection with its on-line retail store services featuring books, software, and the like, in addition to its educational services in the field of business performance and management (Reg. No. 2,546,663).

Complainant also maintains an online presence at the domain name <bettermanagement.com>. 

Respondent registered the disputed domain name <bettermanagment.com> December 25, 2003.  The disputed domain name resolves to a website that lists a series of sponsored links under a variety of headings such as, “seminars,” “customer relationship,” “management,” “business plan,” “training,” and “customer satisfaction.”  In addition, the resolved website contains links to websites offering various goods and services, including “customer relationship management software.”

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 will draw such inferences as the Panel considers appropriate pursuant to paragraph 14(b) of the Rules.

Paragraph 4(a) of the Policy requires Complainant to 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 to and/or Confusingly Similar

Complainant established by extrinsic proof in this proceeding that it has rights in the BETTERMANAGEMENT.COM mark under paragraph 4(a)(i) of the Policy via Complainant’s registration of the mark on the Principal Register of the United States Patent and Trademark Office.  See Janus Int’l Holding Co. v. Rademacher, D2002-0201 (WIPO Mar. 5, 2002) (finding that the registration of a mark is prima facie evidence of validity, which creates a rebuttable presumption that the mark is inherently distinctive.  Respondent has the burden of refuting this assumption); see also Men’s Wearhouse, Inc. v. Wick, FA 117861 (Nat. Arb. Forum Sept. 16, 2002) (“Under U.S. trademark law, registered marks hold a presumption that they are inherently distinctive and have acquired secondary meaning.”).

In determining whether a domain name is confusingly similar to a third party’s mark under paragraph 4(a)(i) of the Policy, panels simply compare the textual differences that may or may not exist between the domain name and the mark.  Furthermore, it is established that merely removing a letter from another’s mark in a domain name fails to sufficiently distinguish the domain name from the mark under paragraph 4(a)(i) of the Policy.  In the instant case, the domain name <bettermanagment.com> is confusingly similar to Complainant’s BETTERMANAGEMENT.COM mark because the domain name includes Complainant’s mark in its entirety and has merely omitted the letter “e” that separates the letters “g” and “m” in Complainant’s mark.  See State Farm Mut. Auto. Ins. Co. v. Try Harder & Co., FA 94730 (Nat. Arb. Forum June 15, 2000) (finding that the domain name <statfarm.com> was confusingly similar to Complainant’s STATE FARM mark because the domain name incorporated the mark in its entirety, but merely removed the letter “e” from the mark); see also Guinness UDV North Am., Inc. v. Dallas Internet Servs., D2001-1055 (WIPO Dec. 12, 2001) (finding that the removal of the final letter "f" from Complainant's SMIRNOFF mark, referred to as "typo-piracy," failed to remove the confusing similarity that such a misspelling gives rise to); see also Neiman Marcus Group, Inc. v. Party Night, Inc., FA 114546 (Nat. Arb. Forum July 23, 2002) ("Respondent's <neimanmacus.com> domain name represents a simple misspelling of Complainant's NEIMAN MARCUS mark . . . It has been consistently held that typosquatting renders the domain name confusingly similar to the altered famous mark.").

Complainant has established Policy ¶ 4(a)(i).

Rights to or Legitimate Interests

Complainant established that it has rights to and legitimate interests in the mark that is contained in its entirety, but for the misspelling, in the domain name that Respondent registered.  Respondent did not establish any such rights.  Further, Respondent’s failure to respond to the Complaint functions as an implicit admission that Respondent lacks rights and legitimate interests in the domain name.  The lack of a Response also allows the Panel to accept all reasonable allegations set forth in the Complaint as true, unless clearly contradicted by the evidence.  See Pavillion Agency, Inc. v. Greenhouse Agency Ltd., D2000-1221 (WIPO Dec. 4, 2000) (finding that Respondents’ failure to respond can be construed as an admission that they have no legitimate interest in the domain names); see also Vert. Solutions Mgmt., Inc. v. Webnet-marketing, Inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that Respondent’s failure to respond allows all reasonable inferences of fact in the allegations of Complainant to be deemed true); see also Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO Dec. 21, 2000) (finding that failing to respond allows a presumption that Complainant's allegations are true unless clearly contradicted by the evidence); see also Honeywell Int’l Inc. v. Domain Deluxe, FA 269166 (Nat. Arb. Forum June 29, 2004) (“The failure of Respondent to respond to the Complaint functions both as an implicit admission that Respondent lacks rights to and legitimate interests in the domain names, as well as a presumption that Complainant’s reasonable allegations are true.”).

The record contains no suggestion that Respondent is commonly known by the disputed domain name pursuant to paragraph 4(c)(ii) of the Policy.  See RMO, Inc. v. Burbridge, FA 96949 (Nat. Arb. Forum May 16, 2001) (interpreting Policy ¶ 4(c)(ii) "to require a showing that one has been commonly known by the domain name prior to registration of the domain name to prevail"); see also Compagnie de Saint Gobain v. Com-Union Corp., D2000-0020 (WIPO Mar. 14, 2000) (finding no rights or legitimate interests where Respondent was not commonly known by the mark and never applied for a license or permission from Complainant to use the trademarked name); see also Ian Schrager Hotels, L.L.C. v. Taylor, FA 173369 (Nat. Arb. Forum Sept. 25, 2003) (finding that without demonstrable evidence to support the notion that a respondent is commonly known by a domain name, the notion must be rejected).

Respondent is using the domain name <bettermanagment.com> to resolve to a website that contains links to a variety of third-party sites that sell goods or services into the business management market, which is the very market in which Complainant uses the  BETTERMANAGEMENT.COM mark.  Specifically, the resolved website contains a link to a site that offers “customer relationship management software.”  Complainant’s registered mark is also used to identify the source of certain software and business management goods and services.  Therefore, Respondent is using a domain name that is confusingly similar to Complainant’s mark to host a website that markets products that compete directly with Complainant’s goods and services offered under its registered mark.  In the absence of a Response, such use of the disputed domain name does not equate to a bona fide offering of goods or services under paragraph 4(c)(i) of the Policy nor a legitimate noncommercial or fair use under paragraph 4(c)(iii) of the Policy.  See Computerized Sec. Sys., Inc. v. Hu, FA 157321 (Nat. Arb. Forum June 23, 2003) (holding that Respondent’s appropriation of Complainant’s mark to market products that compete with Complainant’s goods does not constitute a bona fide offering of goods and services); see also Chip Merch., Inc. v. Blue Star Elec., D2000-0474 (WIPO Aug. 21, 2000) (finding that the disputed domain names were confusingly similar to Complainant’s mark and that Respondent’s use of the domain names to sell competing goods was illegitimate and not a bona fide offering of goods); see also Coryn Group, Inc. v. Media Insight, FA 198959 (Nat. Arb. Forum Dec. 5, 2003) (finding that Respondent was not using domain names for a bona fide offering of goods or services nor a legitimate noncommercial or fair use because Respondent used the names to divert Internet users to a website that offered competing services with those offered by Complainant under its marks); see also C & E Fein GmbH & Co. v. Mierendorff, FA 183729 (Nat. Arb. Forum Oct. 1, 2003) (“Relevant law states that no legitimate or bona fide use or interest in the domain name can be found when a respondent, who is selling competing goods and services, is diverting consumers to its own web site by using a complainant's trademark in its domain name.”).

Moreover, the fact that Respondent registered a domain name that is merely a common misspelling of Complainant’s BETTERMANAGEMENT.COM mark, and then used the domain name to host a series of links to websites that offer goods or services that compete with those offered by Complainant under its mark, presents the Panel with a standard case of typosquatting.  Typosquatting does not evidence rights or legitimate interests in a domain name.  See Nat’l Ass’n of  Prof’l Baseball Leagues v. Zuccarini, D2002-1011 (WIPO Jan. 21, 2003) (“Typosquatting as a means of redirecting consumers against their will to another site, does not qualify as a bona fide offering of goods or services, whatever may be the goods or services offered at that site.”); see also Gardens Alive, Inc. v. D&S Linx, FA 203126 (Nat. Arb. Forum Nov. 20, 2003) ("Respondent's use of the <my-seasons.com> domain name constitutes typosquatting [of Complainant's MYSEASONS mark] and such conduct is evidence that Respondent lacks rights or legitimate interests in the domain name."); see also IndyMac Bank F.S.B. v. Ebeyer, FA 175292 (WIPO Sept. 19, 2003) (finding that Respondent lacked rights and legitimate interests in the disputed domain names because it "engaged in the practice of typosquatting by taking advantage of Internet users who attempt to access Complainant's <indymac.com> website but mistakenly misspell Complainant's mark by typing the letter 'x' instead of the letter 'c.'"); see also LTD Commodities LLC v. Party Night, Inc., FA 165155 (Nat. Arb. Forum Aug. 14, 2003) ("Respondent's 'typosquatting' is evidence that Respondent lacks rights or legitimate interests in the disputed domain names.").

Complainant has established Policy ¶ 4(a)(ii).

Registration and Use in Bad Faith

Complainant alleges that Respondent acted in bad faith in registering and using the disputed domain name.  Respondent engaged in the practice of typosquatting, which has been consistently found to be evidence of bad faith registration and use under paragraph 4(a)(iii) of the Policy.  See Nat’l Ass’n of  Prof’l Baseball Leagues v. Zuccarini, D2002-1011 (WIPO Jan. 21, 2003) (“Typosquatting is the intentional misspelling of words with 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 Zone Labs, Inc. v. Zuccarini, FA 190613 (Nat. Arb. Forum Oct. 15, 2003) (finding that Respondent registered and used the <zonelarm.com> domain name in bad faith pursuant to Policy ¶ 4(a)(iii) because the name was merely a typosquatted version of Complainant's ZONEALARM mark. "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 typosquatted version of Complainant's DERMALOGICA mark and stating, "[t]yposquatting itself is evidence of bad faith registration and use pursuant to Policy 4(a)(iii)."); see also K.R. USA, Inc. v. So So Domains, FA 180624 (Nat. Arb. Forum Sept. 18, 2003) (finding that the <philadelphiaenquirer.com> and <tallahassedemocrat.com> domain names were typosquatted versions of Complainant's THE PHILADELPHIA INQUIRER and TALLAHASSEE DEMOCRAT marks. "Furthermore, [pursuant to Policy ¶ 4(a)(iii)] the very practice of typosquatting, in which Respondent has engaged, has been deemed behavior in bad faith.").

Furthermore, Respondent has violated paragraph 4(b)(iv) of the Policy by intentionally attempting to attract Internet users to its resolved website by creating a likelihood of confusion with Complainant’s mark, presumably for commercial gain.  See Computerized Sec. Sys., Inc. v. Hu, FA 157321 (Nat. Arb. Forum June 23, 2003) (finding that Respondent’s use of the <saflock.com> domain name to offer goods competing with Complainant’s illustrates Respondent’s bad faith registration and use of the domain name, evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv)); see also TM Acquisition Corp. v. Carroll, FA 97035 (Nat. Arb. Forum May 14, 2001) (finding bad faith where Respondent used the domain name, for commercial gain, to intentionally attract users to a direct competitor of Complainant).

Complainant has established Policy ¶ 4(a)(iii).

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 <bettermanagment.com> domain name be TRANSFERRED from Respondent to Complainant.

Hon. Carolyn Marks Johnson, Panelist

Dated: October 18, 2004

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