Complainant is Cheaterville, Inc. of Las Vegas, Nevada, United States of America, represented by Randazza Legal Group, United States of America.
Respondent is Value Electronics Limited of Colorado Springs, Colorado, United States of America; PrivacyP of Nobby Beach, Queensland, Australia. 2. The Domain Name and Registrar
The disputed domain name is registered with PDR Ltd. d/b/a PublicDomainR (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on January 7, 2013. On January 8, 2013, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On January 9, 2013, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to Complainant on January 10, 2013 providing the registrant and contact information disclosed by the Registrar, and inviting Complainant to submit an amendment to the Complaint. Complainant filed an amended Complaint on January 10 and 11, 2013 respectively.
The Center verified that the Complaint together with the amended 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 January 14, 2013. In accordance with the Rules, paragraph 5(a), the due date for Response was February 3, 2013. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on February 4, 2013.
The Center appointed Sandra A. Sellers as the sole panelist in this matter on February 14, 2013. 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 provides online social networking services to consumers with the ability to discuss individuals who cheat on their significant others. Since February 2011, Complainant uses the domain name and its CHEATERVILLE registered trademarks to promote, market and sell related goods and services. Complainant has received significant press attention, with articles in Time magazine, Huffington Post, and an interview on CNN. Complainant has hundreds of thousands of members worldwide who participate in its online social network.
Respondent registered in April 2011. Its website contains pay-per-click links to goods and services similar to those offered by Complainant. It appears that Respondent makes no other use of the disputed domain name. 5. Parties’ Contentions A. Complainant
Complainant asserts that it has rights in the CHEATERVILLE trademarks. It contends that the disputed domain name is confusingly similar to Complainant’s marks because the only difference between Complainant’s mark and the disputed domain name is that Respondent omitted one letter from the CHEATERVILLE mark. Complainant further alleges that Respondent has no rights or legitimate interests in the disputed domain name, and that it registered and uses the disputed domain name in bad faith. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
Paragraph 4(a) of the Policy provides that in order to divest a respondent of a domain name, a complainant must demonstrate each of the following:
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which complainant has rights; and
(ii) respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) the disputed domain name has been registered and is being used in bad faith. A. Identical or Confusingly Similar
Complainant owns two United States registrations for the CHEATERVILLE marks. It has used the marks continuously since February 2011. Complainant has proven that it has rights in the CHEATERVILLE marks.
The disputed domain name was registered in April 2011. The only difference between Respondent’s domain name and the Complainant’s registered marks is that the disputed domain name has omitted one letter. It has long been held that omission of a letter is irrelevant to the determination of whether the domain name is identical or confusingly similar to a complainant’s mark. See, e.g., Mariott International, Inc. v Seocho, NAF Claim No. FA149187; Marriott International, Inc. v. Kyznetsov, NAF Claim No. FA95648; and Marriott International, Inc. v. Polanski, NAF Claim No. FA95647; Red Bull GmbH. v. Grey Design,WIPO Case No. D2001-1035.
Accordingly, the Panel finds that Complainant has rights in the CHEATERVILLE marks and that the disputed domain name is confusingly similar to Complainant’s marks. Complainant has established the first element of paragraph 4(a) of the Policy. B. Rights or Legitimate Interests
Because it is generally difficult for a complainant to prove the fact that a respondent does not have any rights or legitimate interests in a disputed domain name, previous UDRP panels have found it sufficient for a complainant to make a prima facie showing of its assertion where there has been no response.
Complainant has not authorized Respondent or anyone else to register and use the disputed domain name . Respondent is not affiliated with or related to Complainant, nor is Respondent licensed or authorized to use the CHEATERVILLE marks. On the evidence before the Panel, Respondent does not appear to make any legitimate noncommercial or fair use of the disputed domain name.
The Panel is satisfied that Complainant has made a prima facie showing of Respondent’s lack of rights or legitimate interests in the disputed domain name.
Respondent is in default, and has not provided any evidence in its own favor.
The Panel finds that the evidence in the record is sufficient to establish that Respondent has no rights or legitimate interests in the disputed domain name, and thus Complainant meets the second criterion of paragraph 4(a) of the Policy. C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy states that:
“for the purposes of paragraph 4(a)(iii), the following circumstances, in particular but without limitation, if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith:
(iii) you have registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your 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 your web site or location or of a product or service on your web site or location.”
i) Registered in Bad Faith
Respondent registered the disputed domain name on April 2, 2011, after Complainant’s first use of the CHEATERVILLE marks. Based on these facts, this Panel infers that Respondent was aware or must have been aware of Complainant’s mark when Respondent registered the disputed domain name, and therefore registered it in bad faith. See, e.g., Jupiters Limited v. Aaron Hall,WIPO Case No. D2000-0574, in which the panel found it “inevitable that [r]espondent registered the domain names in full knowledge of [c]omplainant’s rights and interests”.
ii) Use in Bad Faith
From the beginning of the Policy, many previous decisions have held that a respondent’s inactivity with respect to the domain name weighs in favor of finding bad faith, particularly where a respondent has no bona fide use for the domain name and simply is precluding complainant from using a domain name that corresponds to complainant’s mark. See, e.g., Telstra Corporation v. Nuclear Marshmallows,WIPO Case No. D2000-0003. This case follows that line. This Panel finds that the disputed domain name is being used in bad faith under Paragraph 4(b)(iii).
The Panel also finds that Respondent has used the disputed domain name in bad faith under the paragraph 4(b)(iv) of the Policy. Respondent’s website intentionally attracts Internet users for commercial gain by linking to other websites containing similar goods and services. It has long been held that this type of click through revenue violates the Policy. See, e.g., Express Scripts, Inc. v. Windgather Investments Ltd. / Mr. Cartwright, WIPO Case No. D2007-0267.
Further, “typosquatting” has consistently been found to constitute bad faith. See, e.g., Neuberger Berman Inc. v. Alfred Jacobsen, WIPO Case No. D2000-0323.
This Panel finds that Respondent has registered and used the disputed domain name in bad faith and that Complainant meets the third criterion of paragraph 4(a) of the Policy. 7. Decision
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name be transferred to the Complainant.
Sandra A. Sellers
Sole Panelist
Date: February 28, 2013
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