DECISION

Creditlink Corporation v. Vadzim Holik

Claim Number:  FA0304000154524

PARTIES

Complainant is Creditlink Corporation, San Diego, CA, USA (“Complainant”) represented by Geva Baumer, of Law Office of Gary Harrison. Respondent is Vadzim Holik, Gomel, BELARUS (“Respondent”).

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <crimefactor.com>, registered with Wild West Domains, 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 April 11, 2003; the Forum received a hard copy of the Complaint on April 14, 2003.

On April 14, 2003, Wild West Domains, Inc. confirmed by e-mail to the Forum that the domain name <crimefactor.com> is registered with Wild West Domains, Inc. and that Respondent is the current registrant of the name. Wild West Domains, Inc. has verified that Respondent is bound by the Wild West Domains, 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 April 16, 2003, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of May 6, 2003 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@crimefactor.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 May 15, 2003, 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 <crimefactor.com> domain name is identical to Complainant’s CRIMEFACTOR mark.

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

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

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

FINDINGS

Complainant, Creditlink Corp., is involved in providing credit reports and background checks on prospective tenants for commercial and residential purposes. Complainant holds U.S. Patent and Trademark Office (“USPTO”) Reg. No. 2,568,600 for the CRIMEFACTOR mark registered on June 25, 2002. Beginning in February 2001, Complainant started using the CRIMEFACTOR mark in order to identify its services and distinguish its offerings from the services of others.

On or about February 26, 2001, Complainant registered the <crimefactor.com> domain name for a period of one year. Complainant asserts that although it paid the required renewal fees, the registrar failed to renew the registration and it consequently lapsed.

Respondent, Vadzim Holik, registered the disputed <crimefactor.com> domain name on February 8, 2003. Complainant’s investigation of Respondent reveals that the subject domain name resolves to a website that links to numerous pop-up pornographic advertisements.

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 rights in the CRIMEFACTOR mark through registration with the USPTO and continuous use of the mark since February 2001. 

Respondent’s <crimefactor.com> domain name is identical to Complainant’s CRIMEFACTOR mark. The disputed domain name incorporates Complainant’s mark in its entirety, and only deviates with the addition of the top-level domain “.com.” Because top-level domains are a required feature in a domain name, their presence is irrelevant in determining “identicality” under Policy ¶ 4(a)(i). See Entrepreneur Media, Inc. v. Smith, [2002] USCA9 115; 279 F.3d 1135, 1146 (9th Cir. Feb. 11, 2002) (“Internet users searching for a company’s [w]ebsite . . . assume, as a rule of thumb, that the domain name of a particular company will be the company name [or trademark] followed by ‘.com’”); see also Pomellato S.p.A v. Tonetti, D2000-0493 (WIPO July 7, 2000) (finding <pomellato.com> identical to Complainant’s mark because the generic top-level domain (“gTLD”) “.com” after the name POMELLATO is not relevant).

Accordingly, the Panel finds that Policy ¶ 4(a)(i) has been satisfied.

Rights or Legitimate Interests

Respondent failed to contest Complainant’s contentions; therefore, all reasonable inferences made by Complainant are regarded as true unless clearly contradicted by the evidence. Once Complainant asserts that Respondent is lacking rights and legitimate interests in the disputed domain name, the burden shifts to Respondent to provide credible evidence that supports its claim to the domain name. Because Respondent failed to submit a Response, Respondent fails to advance any set of circumstances that would indicate legitimate rights in the domain name. 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 Clerical Med. Inv. Group Ltd. v. Clericalmedical.com, D2000-1228 (WIPO Nov. 28, 2000) (finding that under certain circumstances the mere assertion by Complainant that Respondent has no right or legitimate interest is sufficient to shift the burden of proof to Respondent to demonstrate that such a right or legitimate interest does exist).

Complainant’s evidence indicates that Respondent is using the subject domain name to divert Internet users to pornographic pop-up advertisements. Through administrative deficiencies, Complainant’s registration for <crimefactor.com> was allowed to lapse. Complainant’s prior registration of the same domain name is a factor in considering Respondent’s rights or legitimate interests in the domain name, or lack thereof. Currently, Respondent attempts to profit from the goodwill associated with Complainant’s mark by incorporating CRIMEFACTOR in the disputed domain name and diverting consumers to commercial websites. Such use fails to establish rights in the <crimefactor.com> domain name under Policy ¶¶ 4(c)(i) and (iii) because Respondent is tarnishing Complainant’s mark and the goodwill contained therein. See Am. Anti-Vivisection Soc’y v. “Infa dot Net” Web Serv., FA 95685 (Nat. Arb. Forum Nov. 6, 2000) (finding that Complainant’s prior registration of the same domain name is a factor in considering Respondent’s rights or legitimate interest in the domain name); see also Brown & Bigelow, Inc. v. Rodela, FA 96466 (Nat. Arb. Forum Mar. 5, 2001) (finding that infringing on another's well-known mark to provide a link to a pornographic site is not a legitimate or fair use); see also 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 the Complainant’s mark by redirecting Internet traffic to its own website).

Respondent has no apparent trademark or other intellectual property rights in the CRIMEFACTOR mark, and the domain name does not consist of Respondent’s legal name or a name that is otherwise commonly used to identify Respondent. Further, Respondent’s diversionary use of the domain name to provide a gateway to pornographic websites suggests there is no legitimate connection between Respondent and the “crimefactor” second-level domain. Respondent is not authorized or licensed to make use of Complainant’s mark in the domain name or in connection with any Internet offering. Therefore, Respondent fails to establish rights in the domain name under Policy ¶ 4(c)(ii). 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 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).

Accordingly, the Panel finds that Policy ¶ 4(a)(ii) has been satisfied.    

Registration and Use in Bad Faith

The Panel infers that Respondent registered and used the <crimefactor.com> domain name in bad faith as articulated under Policy ¶ 4(b)(iv). Specifically, Respondent is using the <crimefactor.com> domain name to divert Internet users to a portal that leads to pornographic websites. Panels have consistently held that the use of an infringing domain name in this manner is evidence of bad faith registration and use under the Policy. See STMicroelectronics, Inc. v. Hyunsuk, FA 143711 (Nat. Arb. Forum, Mar. 21, 2003). Circumstances indicate that Respondent registered the domain name to intentionally attract Internet users to its website by creating a likelihood of confusion with Complainant’s CRIMEFACTOR mark. See Kmart v. Kahn, FA 127708 (Nat. Arb. Forum Nov. 22, 2002) (finding that if Respondent profits from its diversionary use of Complainant's mark when the domain name resolves to commercial websites and Respondent fails to contest the Complaint, it may be concluded that Respondent is using the domain name in bad faith pursuant to Policy ¶ 4(b)(iv)); see also Am. Online, Inc. v. Tencent Comm. Corp., FA 93668 (Nat. Arb. Forum Mar. 21, 2000) (finding bad faith where Respondent registered and used an infringing domain name to attract users to a website sponsored by Respondent).

Additionally, Respondent’s opportunistic exploitation of Complainant’s administrative difficulties, which involved the unintentional lapse of the domain name registration, evidences bad faith. As stated, Respondent’s domain name resolves to pornographic content that tarnishes Complainant’s CRIMEFACTOR mark. Respondent is attempting to capitalize from Complainant’s development of its CRIMEFACTOR mark and corresponding website. Therefore, Respondent’s registration of the lapsed domain name constitutes opportunistic bad faith under the Policy. See InTest Corp. v. Servicepoint, FA 95291 (Nat. Arb. Forum Aug. 30, 2000) (finding that where the domain name has been previously used by Complainant, subsequent registration of the domain name by anyone else indicates bad faith, absent evidence to the contrary); see also BAA plc v. Spektrum Media Inc., D2000-1179 (WIPO Oct. 17, 2000) (finding bad faith where Respondent took advantage of Complainant’s failure to renew a domain name).

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

DECISION

Having established all three elements required under ICANN Policy, the Panel concludes that relief shall be GRANTED.

Accordingly, it is Ordered that the <crimefactor.com> domain name be TRANSFERRED from Respondent to Complainant.

James A. Carmody, Esq., Panelist

Dated:  May 21, 2003

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