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Plentyoffish Media Inc. v. Amazing Bender / None
Claim Number: FA1403001549463
PARTIES
Complainant is Plentyoffish Media Inc. ('Complainant'), represented by Kevin Costanza of Seed Intellectual Property Law Group PLLC, Washington, USA. Respondent is Amazing Bender / None ('Respondent'), Ukraine.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is , registered with UK2 Group Ltd.
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.
Ho-Hyun Nahm, Esq. as Panelist.
PROCEDURAL HISTORY
Complainant submitted a Complaint to the National Arbitration Forum electronically on March 19, 2014; the National Arbitration Forum received payment on March 19, 2014.
Plentyoffish Media Inc
On March 19, 2014, UK2 Group Ltd confirmed by e-mail to the National Arbitration Forum that the domain name is registered with UK2 Group Ltd and that Respondent is the current registrant of the name. UK2 Group Ltd has verified that Respondent is bound by the UK2 Group Ltd registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the 'Policy').
On March 20, 2014, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 9, 2014 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent's registration as technical, administrative, and billing contacts, and to postmaster@pofapp.com. Also on March 20, 2014, the Written Notice of the Complaint, notifying Respondent of the e-mail addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent's registration as technical, administrative and billing contacts.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On April 14, 2014, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Ho-Hyun Nahm, Esq. 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' through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2. 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.
RELIEF SOUGHT
Complainant requests that the domain name be transferred from Respondent to Complainant.
PARTIES' CONTENTIONS
A. Complainant
- Policy ¶ 4(a)(i)
i.Complainant, Plentyoffish Media Inc., holds exclusive rights to the POF, PLENTYOFFISH, and PLENTY OF FISH marks, which it uses in connection with online dating and social networking services.
ii.Complainant is the owner of trademark registrations with the United States Patent and Trademark Office ('USPTO') for the POF mark (e.g., Reg. No. 3,251,640, registered June 12, 2007).
iii.Respondent's domain name is confusingly similar to Complainant's POF mark.
- Policy ¶ 4(a)(ii)
i.Respondent should be considered as having no rights or legitimate interests in respect of the disputed domain name.
ii.Respondent is not commonly known by the disputed domain name.
iii.Respondent is using the domain name to promote the directly competing 'UpForIt Mobile Dating' web service.
- Policy ¶ 4(a)(iii)
i.The disputed domain name should be considered as having been registered and being used in bad faith.
ii.Respondent is disrupting Complainant's business by diverting consumers who may be seeking to use Complainant's legitimate services.
iii.Respondent is using the domain name to promote the directly competing 'UpForIt Mobile Dating' web service.
B. Respondent
Respondent failed to submit a Response in this proceeding. The Panel notes that Respondent registered the domain name on July 26, 2012.
FINDINGS
Complainant established that it had rights in the mark contained in the disputed domain name. Disputed domain name is confusingly similar to Complainant's protected mark.
Respondent has no rights to or legitimate interests in the disputed domain name.
ii.Respondent is not commonly known by the disputed domain name.
iii.Respondent is using the domain name to promote the directly competing 'UpForIt Mobile Dating' web service.
- Policy ¶ 4(a)(iii)
i.The disputed domain name should be considered as having been registered and being used in bad faith.
ii.Respondent is disrupting Complainant's business by diverting consumers who may be seeking to use Complainant's legitimate services.
iii.Respondent is using the domain name to promote the directly competing 'UpForIt Mobile Dating' web service.
B. Respondent
Respondent failed to submit a Response in this proceeding. The Panel notes that Respondent registered the domain name on July 26, 2012.
FINDINGS
Complainant established that it had rights in the mark contained in the disputed domain name. Disputed domain name is confusingly similar to Complainant's protected mark.
Respondent has no rights to or legitimate interests in the disputed domain name.
Respondent registered and used the disputed domain name in bad faith.
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.'
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.
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. SeeVertical 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 alsoTalk 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.').
Identical and/or Confusingly Similar
Complainant argues that it holds exclusive rights to the POF, PLENTYOFFISH, and PLENTY OF FISH marks, which it uses in connection with online dating and social networking services. Complainant contends that it is the owner of trademark registrations with the USPTO for the POF mark (e.g., Reg. No. 3,251,640, registered June 12, 2007). See Complainant's Annex 1. The Panel finds that although Respondent appears to reside in the Ukraine, Policy ¶ 4(a)(i) does not require Complainant to register its mark in the country in which Respondent resides, so long as it can establish rights in the mark in some jurisdiction. See Koninklijke KPN N.V. v. Telepathy Inc., D2001-0217 (WIPO May 7, 2001) (finding that the Policy does not require that the mark be registered in the country in which the respondent operates and it is sufficient that the complainant can demonstrate a mark in some jurisdiction). Therefore, the Panel holds that Complainant has sufficiently proved it had rights in the POF mark pursuant to Policy ¶ 4(a)(i) through its registration with the USPTO. See Metro. Life Ins. Co. v. Bonds, FA 873143 (Nat. Arb. Forum Feb. 16, 2007) (finding that a USPTO trademark registration adequately demonstrates a complainant's rights in a mark under Policy ¶ 4(a)(i)).
Complainant asserts that Respondent's domain name is confusingly similar to Complainant's POF mark. Complainant claims that Respondent includes the entire POF mark, as well as the generic term 'app' and the generic top-level domain ('gTLD') '.com.' The Panel holds that Respondent's inclusion of a generic term does not differentiate the domain name from Complainant's mark pursuant to Policy ¶ 4(a)(i). See Westfield Corp. v. Hobbs, D2000-0227 (WIPO May 18, 2000) (finding the domain name confusingly similar because the WESTFIELD mark was the dominant element). The Panel also determines that Respondent's inclusion of a gTLD to Complainant's mark does not overcome a finding of confusing similarity under Policy ¶ 4(a)(i). See Metro-Goldwyn-Mayer Studios Inc. v. Antigua Domains, FA 1073020 (Nat. Arb. Forum Oct. 17, 2007) ('[T]he inclusion of the generic top-level domain ‘.com' is inconsequential to the Policy ¶ 4(a)(i) analysis, as a top-level domain is required of all domain names.'). Thus, the Panel concludes that Respondent's domain name is confusingly similar to Complainant's POF mark according to Policy ¶ 4(a)(i).
Rights or Legitimate Interests
Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), and then the burden shifts to Respondent to show it does have rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm't Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name); see also AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006) ('Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.').
Complainant asserts that Respondent is not commonly known by the domain name. Complainant alleges that Respondent has not applied for or obtained any state or federal trademark or service mark registration for the same. The Panel finds that the registrant of the disputed domain name is identified as 'Amazing Bender / None' on the WHOIS record. See Complainant's Annex 2. Complainant contends that it has not licensed or otherwise permitted Respondent to use the POF mark or to apply for or use any domain name incorporating the same. In Instron Corp. v. Kaner, FA 768859 (Nat. Arb. Forum Sept. 21, 2006), the panel found that respondent was not commonly known by the disputed domain names because the WHOIS information listed 'Andrew Kaner c/o Electromatic a/k/a Electromatic Equip't' as the registrant and there was no other evidence in the record to suggest that respondent was commonly known by the domain names in dispute. Therefore, the Panel finds that Respondent is not commonly known by the domain name pursuant to Policy ¶ 4(c)(ii).
Complainant argues that Respondent is using the domain name to promote the directly competing 'UpForIt Mobile Dating' web service. The Panel notes that Respondent's disputed domain name links to a webpage that states 'Download Pof App for FREE!' while also recommending the 'UpForIt Mobile Dating' app. See Complainant's Annex 7. Prior panels have concluded that a respondent's use of a disputed domain name to provide a competing service is not a bona fide offering of goods or services or a legitimate noncommercial or fair use. See Ameritrade Holdings Corp. v. Polanski, FA 102715 (Nat. Arb. Forum Jan. 11, 2002) (finding that the respondent's use of the disputed domain name to redirect Internet users to a financial services website, which competed with the complainant, was not a bona fide offering of goods or services). Consequently, the Panel concludes that Respondent is not using the domain name in connection with 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).
Plentyoffish Media Llc
Registration and Use in Bad Faith
Complainant argues that Respondent is disrupting Complainant's business by diverting consumers who may be seeking to use Complainant's legitimate services. The Panel observes that Respondent is using the domain name to mislead consumers to a competing service titled 'UpForIt Mobile Dating.' See Complainant's Annex 7. As the Panel finds that Respondent is using the domain name to disrupt Complainant's legitimate dating services, the Panel holds that Respondent has registered and is using the disputed domain name in bad faith under Policy ¶ 4(b)(iii). See DatingDirect.com Ltd. v. Aston, FA 593977 (Nat. Arb. Forum Dec. 28, 2005) ('Respondent is appropriating Complainant's mark to divert Complainant's customers to Respondent's competing business. The Panel finds this diversion is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iii).').
Complainant claims that Respondent is using the domain name to promote the directly competing 'UpForIt Mobile Dating' web service. See Complainant's Annex 7. Complainant argues that Respondent is using the disputed domain name to create confusion with Complainant's POF mark as to the source, sponsorship, affiliation, or endorsement of Respondent's website and software. In Luck's Music Library v. Stellar Artist Mgmt., FA 95650 (Nat. Arb. Forum Oct. 30, 2000), the panel found that respondent engaged in bad faith use and registration by using domain names that were identical or confusingly similar to complainant's mark to redirect users to a website that offered services similar to those offered by complainant. Thus, the Panel finds that Respondent is misleading users to its own website for commercial benefit, which demonstrates bad faith use and registration pursuant to Policy ¶ 4(b)(iv).
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 domain name be TRANSFERRED from Respondent to Complainant.
Ho-Hyun Nahm, Panelist
Dated: April 23, 2014
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