DECISION

InfoSpace, Inc. v. Go, Patrick

Claim Number:  FA0401000234371

PARTIES

Complainant is InfoSpace, Inc. (“Complainant”), represented by Gerard A. Taylor, of Stokes Lawrence PS, 800 Fifth Ave., Suite 4000, Seattle, WA 98104-3179.  Respondent is Go, Patrick (“Respondent”), Sage House 16/F, 110 Herrera Street, Makati.

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <authoriz.net>, registered with Network Solutions, 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.

James A. Carmody, Esq., as Panelist.

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum (the "Forum") electronically on January 29, 2004; the Forum received a hard copy of the Complaint on February 2, 2004.

On February 4, 2004, Network Solutions, Inc. confirmed by e-mail to the Forum that the domain name <authoriz.net> is registered with Network Solutions, Inc. and that Respondent is the current registrant of the name. Network Solutions, Inc. has verified that Respondent is bound by the Network Solutions, 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 February 5, 2004, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of February 25, 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@authoriz.net 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 March 10, 2004, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed James A. Carmody, Esq., 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. Respondent’s <authoriz.net> domain name is confusingly similar to Complainant’s <AUTHORIZE.NET> mark.

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

3. Respondent registered and used the <authoriz.net> domain name in bad faith.

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

FINDINGS

Complainant, InfoSpace, Inc., is a leading global provider of wireless and Internet software and provides application services to leading wireless and broadband providers, websites, and merchant resellers. Complainant provides directory services on the Internet, offering access to information on a variety of subjects, search engines to obtain data on the Internet and brokerage of electronic commerce transactions conducted on the Internet.

Complainant holds numerous trademark registrations with the United States Patent and Trademark Office for the AUTHORIZE.NET mark (Reg. No. 2,422,317, issued January 16, 2001; Reg. No. 2,749,994, issued, August 12, 2003), AUTHORIZE.NET WHERE THE WORLD DOES BUSINESS ON THE WEB (Reg. No. 2,441,859, issued April 10, 2001), AIRPARY BY AUTHORIZE.NET (Reg. No. 2,746,969, issued August 5, 2003), POCKET AUTHORIZE.NET (Reg. No., 2,685,523, issued February 11, 2003), and AUTHORIZE.NET WHERE THE WORLD TRANSACTS (Reg. No. 2,894,321, issued January 13, 2004) related to global computer software use and electronic financial services. 

Complainant’s main website is located at the <authorize.net> domain name, where customers can access electronic financial services, computer software and related information.

Respondent registered the disputed domain name on March 8, 2000. Respondent is using  the disputed domain name to divert Internet users intended for Complainant’s website to a website that offers electronic financial services.

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.

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 that it has rights in the AUTHORIZE.NET mark through registration with the United States Patent and Trademark Office.

The disputed domain name is confusingly similar to Complainant’s mark because the disputed domain name appropriates Complainant’s entire mark and merely omits the letter “e” from the mark under UDRP pursuant to Policy ¶ 4(a)(i). The omission of the letter “e” does not sufficiently differentiate the domain name from the dominant element of Respondent’s domain name. 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> is confusingly similar to Complainant’s STATE FARM mark)); see also Bama Rags, Inc. v. Zuccarini, FA 94380 (Nat. Arb. Forum May 8, 2000) (finding that the domain names, <davemathewsband.com> and <davemattewsband.com>, are common misspellings and therefore confusingly similar).

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

Rights or Legitimate Interests

Complainant asserts that Respondent has no rights to or legitimate interests in the disputed domain name. Respondent failed to submit a Response in this proceeding. Thus, the Panel may accept all reasonable allegations and inferences in the Complaint as true. See Do the Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (“Failure of a respondent to come forward to [contest complainant’s allegations] is tantamount to admitting the truth of complainant’s assertion in this regard”); see also Vertical 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).

Furthermore, due to Respondent’s failure to dispute the allegations in the Complaint, the Panel may presume that Respondent lacks rights and legitimate interests in the disputed domain name pursuant to the Policy ¶ 4(a)(ii). See Vertical 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 Geocities v. Geociites.com, D2000-0326 (WIPO June 19, 2000) (finding that Respondent has no rights or legitimate interests in the domain name because Respondent never submitted a response or provided the Panel with evidence to suggest otherwise).

Respondent is using the <authoriz.net> domain name to generate business for its company and to divert Internet traffic to its competing website, capitalizing on the familiarity of Complainant’s mark. The use of a domain name confusingly similar to a mark to divert Internet users to a competing website is neither a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). See MSNBC Cable, LLC v. Tysys.com, D2000-1204 (WIPO Dec. 8, 2000) (finding no rights or legitimate interests in the famous MSNBC mark where Respondent attempted to profit using Complainant’s mark by redirecting Internet traffic to its own website); see also Disney Enterss, Inc. v. Dot Stop, FA 145227 (Nat. Arb. Forum Mar. 17, 2003) (finding that Respondent’s diversionary use of 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).

Respondent has provided no evidence and nothing in the record suggests that Respondent is commonly known by the disputed domain name. Thus, Respondent has not established any rights or legitimate interests in the disputed domain name under Policy ¶ 4(c)(ii). See Compagnie de Saint Gobain v. Com-Union Corp., D2000-0020 (WIPO Mar. 14, 2000) (finding no rights or legitimate interest 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 Broadcom Corp. v. Intellifone Corp., FA 96356 (Nat. Arb. Forum Feb. 5, 2001) (finding no rights or legitimate interests because Respondent is not commonly known by the disputed domain name or using the domain name in connection with a legitimate or fair use)

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

Registration and Use in Bad Faith

It can be inferred that Respondent had knowledge of Complainant’s AUTHORIZE.NET mark when it registered the disputed domain name because Respondent’s website layout copies Complainant’s design. Additionally, Respondent’s slogan on its website uses similar language as Complainant’s slogan found on its website. Registering a domain name confusingly similar to Complainant’s mark and copying complainant’s website to capitalize on Internet-user confusion for commercial gain is evidence of bad faith use and registration pursuant to Policy ¶ 4(a)(iv). See Vivendi Universal Games and Davidson & Associates, Inc. v. Ronald A. Ballard, FA 146621 (Nat. Arb. Forum Mar. 13, 2002) (finding that where Complainant’s mark was appropriated at registration, and a copy of Complainant’s website was used at the domain name in order to facilitate the interception of Complainant’s customer’s account information, Respondent’s behavior evidenced bad faith use and registration of the domain name); see also American Int’l Group, Inc. v. Walter Busby d/b/a AIG Mergers and Acquisitions, FA 156251 (Nat. Arb. Forum May 30, 2003) (finding that the disputed domain name was registered and used in bad faith where Respondent hosted a website that “duplicated Complainant’s mark and logo, giving every appearance of being associated or affiliated with Complainant’s business . . .  In a nutshell, Respondent used the disputed domain name to perpetrate a fraud”).

Respondent has registered a domain name which is a misspelling of Complainant’s mark by omitting the letter “e.” Respondent has engaged in “typosquatting,” a practice that diverts Internet users who misspell Complainant’s mark to a website sponsored by Respondent for Respondent’s commercial gain. This practice of “typosquatting” is also evidence of bad faith pursuant to Policy ¶ 4(b)(iv).  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 Black & Decker Corp. v. Azra Khan, FA 137223 (Nat. Arb. Forum Feb. 3, 2003) (finding the <wwwdewalt.com> domain name was registered to “ensnare those individuals who forget to type the period after the “www” portion of [a] web-address,” evidence that the domain name was registered and used in bad faith).

Furthermore, Respondent registered the disputed domain name for the primary purpose to disrupt Complainant’s business by diverting Internet traffic intended for Complainant to Respondent’s website, which offers nearly identical services. Registering a domain name primarily for the purpose of disrupting the business of a competitor is evidence of bad faith registration and use pursuant to policy ¶ 4(b)(iii). See Luck's Music Library v. Stellar Artist Mgmt., FA 95650 (Nat. Arb. Forum Oct. 30, 2000) (finding that Respondent had engaged in bad faith use and registration by linking the domain name to a website that offers services similar to Complainant’s services, intentionally attempting to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with Complainant’s marks); see also S. Exposure v. S. Exposure, Inc., FA 94864 (Nat. Arb. Forum July 18, 2000) (finding Respondent acted in bad faith by attracting Internet users to a website that competes with Complainant’s business).

The Panel finds that ¶ 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 <authoriz.net> domain name be TRANSFERRED from Respondent to Complainant.

James A. Carmody, Esq., Panelist

Dated:  March 15, 2004

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